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Friday, March 7, 2003


The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Thursday, March 6, 2003, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
S. C. R. 34, Requesting Joint Committee on Government and Finance study administration of estates,
S. C. R. 42, Requesting Joint Committee on Government and Finance study retirement programs for certain employees,
H. C. R. 50, Requesting the Commissioner of the Division of Highways to name the bridge crossing the West Fork River at Enterprise in Harrison County, the "Corporal Jerry Lee Halpenny and PFC Michael Alonzo Wells Memorial Bridge",
And,
H. C. R. 62, Requesting the Joint Committee on Government and Finance conduct a study to determine if working cooperatively with providers of HUD housing to provide additional personal care services to elderly would decrease the unnecessary institutionalization of elderly individuals and reduce costs to Medicaid,
And reports the same back with the recommendation that they each be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 81, Requesting the Joint Committee on Government and Finance to make a study of the cost and effectiveness of the medicaid program preferred drug list,
And reports back a committee substitute therefor, with a new title as follows:
Com. Sub. for H. C. R. 81 - "Directing the Joint Committee on Government and Finance to make a study of the medicaid program preferred drug list",
With the recommendation that the committee substitute be adopted.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 95, Increasing length and width for certain vehicles,
Com. Sub. for S. B. 178, Relating to subject matter jurisdiction in family courts,
And,
Com. Sub. for S. B. 494, Regulating fees between cemeteries, certain companies and veterans for setting grave markers,
And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that they each do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (S. B. 95, Com. Sub. for S. B. 178 and Com. Sub. for S. B. 494) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 395, Granting temporary grandparent visitation during divorce action; technical corrections,
And,
S. B. 527, Relating to property owner's liability for costs associated with waste tires,
And reports the same back, with amendment, with the recommendation that they each do pass, as amended.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 386, Increasing parole supervision fee,
And reports the same back, with the recommendation that it do pass, and with the recommendation that second reference of the bill to the Committee on Finance be dispensed with.
In the absence of objection, reference of the bill (Com. Sub. for S. B. 386) to the Committee on Finance was abrogated.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 386) was taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
Com. Sub. for S. B. 453, Establishing domestic violence fatality review team,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 453) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 432, Deleting provision requiring magistrates to set payment plans in certain cases,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub. for S. B. 432) was taken up for immediate consideration, read a first time, ordered to second reading and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Messages from the Executive

The Clerk read a communication for His Excellency, the Governor, as to Com. Sub. for S. B. 170, as follows:
The Honorable Earl Ray Tomblin, President
State of West Virginia
State Capitol
Charleston, West Virginia 25305
Dear Mr. President:
Pursuant to Section Fourteen, Article VII of the Constitution of West Virginia, "Any bill which shall not be returned by the Governor within five days, Sunday excepted, after it shall have been presented to him shall be a law,..." As such, after great thought, I have decided to permit Senate Bill No. 170 to become law without my signature. I vetoed similar legislation last year. This bill has made some improvements. While I do not feel a compelling need for this legislation, I recognize the strong majorities in both houses that have voted for this bill. Rather than have the Legislature consume more time on this subject, I will permit this to become law while recognizing the need for some improvements and urging correction of some features in future legislation.
As I stated in my State of the State address-I am committed to improving the quality, affordability and availability of health care to our citizens. This year I introduced legislation that will deal with our medical malpractice crisis to not only help our doctors practicing, but attract new doctors to our state. The Legislature is in the final days of passing a bill that would give doctors the assistance they need to continue practicing in our state.
While acknowledging some improvements from last year's bill, I am still concerned this bill will expose health care providers to additional liability at a time when all of us have been working to improve the medical climate in West Virginia. I also must express my concern that the privacy of patients and their doctors is not adequately protected. These are issues I hope the Legislature will work with me to resolve.
For these reasons, I will let this bill become law without my signature.
Very truly yours,
Bob Wise,
Governor.
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor, advising that on March 3, 2003, he approved H. B. 2763, S. B. 163 and S. B. 282.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2110, Declaring that lawful design, marketing, manufacture or sale of firearms or ammunition to the public is not an unreasonably dangerous activity.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2190, Permitting certain farm vehicles to use the highways between sunset and sunrise.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2357, Authorizing the aeronautics commissioner to expense funds.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 2A. STATE AERONAUTICS COMMISSION.
§29-2A-3a. Expenses of civil air patrol; commission may expend funds pursuant to rules.
(a) The commission, in addition to all other powers and functions authorized by law, is hereby authorized and empowered to may expend state funds: (1) For educational purposes of the civil air patrol, including, but not limited to, the purchase of civil air patrol aviation education training aid books, materials and equipment; (2) to defray maintenance, repair and replacement costs of civil air patrol aircraft; (3) to purchase and obtain supplies and equipment for the civil air patrol; and (4) to maintain the communications network for the civil air patrol.
(b) No expenditure of state funds for any such these purposes may be made unless the purchase order is first approved by the commission in accordance with the commission's rules and regulations relating thereto to the expenditure. Only funds specifically appropriated by the Legislature for such these purposes may be so expended by the commission and funds so appropriated shall be expended for no other purposes."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 394), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Pino.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2357) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2406, Immunity from civil liability for members of a national ski patrol system.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2441, Increasing the minimum subscribed capital stock and capital surplus for new bank charter applications.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2443, Relating to the assessment of banking institutions.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2534, Eliminating the property value limit on the application of the tax.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2694, Protecting the beekeeping industry.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2714, Relating to the donation of firefighting and fire rescue equipment and insurance policies dealing with immunity coverage provisions.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect July 1, 2003, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2733, Increasing funds in the special revenue accounts for the criminal investigation division and the special audits division.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page three, section two-a, line twenty-five, by striking out the word "such".
On page three, section two-a, line thirty, by striking out the word "such".
On page four, section two-a, line fifty-one, by striking out the word "Such" and inserting in lieu thereof the word "The".
On page five, section two-a, line sixty-one, by striking out the word "so".
And,
On page five, section two-a, line sixty-seven, by striking out the word "such".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 395), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill ( Com. Sub. for H. B. 2733) passed.
Delegate Staton moved that the bill take effect July 1, 2003.
On this question, the yeas and nays were taken (Roll No. 396), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2733) takes effect July 1, 2003.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2768, Enacting a standardized false alarm ordinance.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 1. COUNTY COMMISSIONS GENERALLY.
§7-1-3mm.
Authority to adopt ordinance relating to false alarms.
(a) In addition to all other powers and duties they now possess, county commissions may enact ordinances, establish a system of administration and enforcement, assess fees and penalties, issue orders and take other necessary and appropriate actions for the reduction and elimination of false alarms.
(b) The fire alarm ordinance enacted by a county shall be the 'West Virginia alarm ordinance governing alarms responded to by West Virginia public safety agencies,' developed by the joint committee of the enhanced 911 council and the West Virginia burglar and fire alarm association, based on the national burglar and fire alarm association/fire alarm reduction association model ordinance. County alarm advisory boards may modify the ordinance provided there are specific needs or circumstances in a county that are not addressed by the existing ordinance.
(c) The county commission shall appoint an alarm administrator to administer the false alarm ordinance. In counties that have an enhanced 911 system, the E-911 director shall be the administrator. In counties without an enhanced 911 system, the alarm administrator shall be knowledgeable and qualified in the areas of alarm systems and false alarm reduction efforts.
(d) The false alarm ordinance shall provide for the appointment of a false alarm advisory board, which shall consist of the alarm administrator, the county sheriff or other law-enforcement officer, a fire chief from a county fire department or his or her designee, a representative from the alarm industry, and a member at large selected by the county commission to serve a two-year term. The advisory board shall review, assist and make recommendations concerning false alarm reduction efforts and report to the county commission."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2768 - "A Bill to amend article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three-mm, relating to authorizing county commissions to enact standardized false alarm ordinances; specifying ordinance to be enacted; authorizing establishment of a system of administration and enforcement; providing for the assessment of fees and penalties; providing for the issuance of orders; and providing for the appointment of an administrator and an advisory board."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendment and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 2771, Repealing exemptions from gasoline and special fuels excise tax for bulk sales to interstate motor carriers.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That section five-a, article fourteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be repealed; and that section three of said article be amended and reenacted, to read as follows:
ARTICLE 14. GASOLINE AND SPECIAL FUEL EXCISE TAX.
§11-14-3. Imposition of tax.

There is hereby levied an excise tax of fifteen and one-half cents per gallon on all gasoline or special fuel, which tax shall be computed in accordance with the appropriate measure of tax as hereinafter prescribed in this article: Provided, That beginning the first day of May, one thousand nine hundred ninety-three, the tax levied by this article shall be twenty and one-half cents per gallon: Provided, however, That on and after the first day of August, two thousand seven, the tax levied by this article shall be fifteen and one-half cents per gallon: Provided further, That on and after the first day of July, two thousand three, the tax levied by this section shall be five cents less per gallon than the excise tax otherwise levied herein on gasoline or special fuel on sales by a retail dealer from a retail gas pump situated within a five-mile linear radius from any border of the state of West Virginia and certified by the tax commissioner as situated within the five-mile linear radius.
Beginning on the fifteenth day of January, two thousand three, and every fifteenth day of January thereafter, the tax commissioner shall submit to the Legislature an annual report identifying the amount of revenue collected from the imposition of the tax imposed by this section in each county of this state via sales at each individual retail gas pump during the preceding fiscal year. Notwithstanding any provision of this code to the contrary, all information individually made available to the tax commissioner by a taxpayer that is utilized in the preparation of the report to the Legislature required by this section is confidential and may not be disclosed to any person in any manner inconsistent with any law of this state protecting the confidentiality of taxpayer returns filed pursuant to this article."
And,
By amending the title of the bill to read as follows:
H. B. 2771 - "A Bill to repeal section five-a, article fourteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section three of said article, relating to exemption from gasoline and special fuels excise tax for bulk sales to interstate motor carriers; and establishing as of the first day of July, two thousand three, a five cents per gallon less excise tax on sales of gasoline or special fuel by a retail dealer from a retail gas pump within a five-mile linear radius of any border of the state of West Virginia."
On motion of Delegate Staton, the House of Delegates refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2948, Giving consumers greater opportunity to successfully obtain discontinuation of foreclosure sales and other efforts to repossess property.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3016, Allowing the department of health and human resources to retain adult protective service records for thirty years.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3018, Changing the amount of time that the department of health and human resources must retain child protective services' records.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3046, Facilitating compliance with and enforcement of provisions of the Tobacco Master Settlement Agreement.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 9D. ENFORCEMENT OF STATUTES IMPLEMENTING TOBACCO MASTER SETTLEMENT AGREEMENT.
§16-9D-1. Findings and purpose.
The Legislature finds that violations of article nine-b of this chapter threaten the integrity of the tobacco master settlement agreement, the fiscal soundness of the state, and the public health. The Legislature finds that enacting procedural enhancements will help prevent violations and aid enforcement of article nine-b of this chapter and thereby safeguard the master settlement agreement, the fiscal soundness of the state, and the public health.
§16-9D-2. Definitions.
(a) 'Brand Family' means all styles of cigarettes sold under the same trade mark and differentiated from one another by means of additional modifiers or descriptors, including, but not limited to, 'menthol,' 'lights,' 'kings,' and '100s' and includes any brand name (alone or in conjunction with any other word), trademark, logo, symbol, motto, selling message, recognizable pattern of colors, or any other indicia of product identification identical or similar to, or identifiable with, a previously known brand of cigarettes.
(b) 'Cigarette' has the same meaning as in section two, article nine-b of this chapter.
(c) 'Commissioner' means the duly appointed head of the agency responsible for collection of the excise tax on cigarettes.
(d) 'Distributor' means a person, wherever resident or located, who purchases nontax-paid cigarettes and stores, sells, or otherwise disposes of the cigarettes.
(e) 'Master tobacco settlement agreement' has the same meaning as that term is defined in section two, article nine-b of this chapter.
(f) 'Nonparticipating manufacturer' means any tobacco product manufacturer that is not a participating manufacturer.
(g) 'Participating manufacturer' has the meaning given that term in section II(jj) of the master settlement agreement and all amendments to the master settlement.
(h) 'Qualified escrow fund' has the same meaning as that term is defined in section two, article nine-b of this chapter.
(i) 'Stamping agent' includes any distributor or other person that is authorized to affix tax stamps to packages or other containers of cigarettes under article seventeen, chapter eleven of this code, or any person that is required to pay the excise tax imposed on cigarettes pursuant to article seventeen of said chapter eleven.
(j) 'Tobacco product manufacturer' has the same meaning as that term is defined in section two, article nine-b of this chapter.
(k) 'Units sold' has the same meaning as that term is defined in section two, article nine-b of this chapter.
§16-9D-3. Certifications; directory; tax stamps.
(a) Certification. - Every tobacco product manufacturer whose cigarettes are sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall execute and deliver in the manner prescribed by the commissioner a certification to the commissioner and the attorney general, no later than the thirtieth day of April each year, certifying under penalty of perjury that, as of the date of the certification, the tobacco product manufacturer either is a participating manufacturer or is in full compliance with article nine-b of this chapter, including payment of all quarterly installment payments required by section six of this article.
(1) A participating manufacturer shall include in its certification a list of its brand families. The participating manufacturer shall update the list thirty calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the commissioner and the attorney general.
(2) A nonparticipating manufacturer shall include in its certification:
(A) A list of all of its brand families and the number of units sold for each brand family that were sold in this state during the preceding calendar year;
(B) A list of all of its brand families that have been sold in this state at any time during the current calendar year, indicating, by an asterisk, any brand family sold in this state during the preceding calendar year that is no longer being sold in this state as of the date of the certification; and
(C) Identification, by name and address, of any other manufacturer of the brand families in the preceding calendar year. The nonparticipating manufacturer shall update the list thirty calendar days prior to any addition to or modification of its brand families by executing and delivering a supplemental certification to the commissioner and the attorney general.
(3) In the case of a nonparticipating manufacturer, the certification shall further certify:
(A) That the nonparticipating manufacturer is registered to do business in this state or has appointed a resident agent for service of process and provided notice thereof as required by section four of this article;
(B) That the nonparticipating manufacturer has: (i) Established and continues to maintain a qualified escrow fund; and (ii) has executed a qualified escrow agreement that has been reviewed and approved by the attorney general and that governs the qualified escrow fund;
(C) That the nonparticipating manufacturer is in full compliance with article nine-b of this chapter and this article, and any rules promulgated pursuant to either article; and
(D) The name, address and telephone number of the financial institution where the nonparticipating manufacturer has established the qualified escrow fund required by article nine-b of this chapter and all rules promulgated thereto, and:
(i) The account number of the qualified escrow fund and sub-account number for the state of West Virginia;
(ii) The amount the nonparticipating manufacturer placed in escrow fund for cigarettes sold in this state during the preceding calendar year, the date and amount of each deposit, and any evidence or verification considered necessary by the attorney general to confirm the information certified under this paragraph; and
(iii) The amount and date of any withdrawal or transfer of funds the nonparticipating manufacturer made at any time from the qualified escrow fund or from any other qualified escrow fund into which it ever made escrow payments pursuant to article nine-b of this chapter and all rules promulgated thereto.
(4) A tobacco product manufacturer may not include a brand family in its certification unless:
(A) In the case of a participating manufacturer, the participating manufacturer affirms that the brand family is to be considered to be its cigarettes for purposes of calculating its payments under the master settlement agreement for the relevant year, in the volume and shares determined pursuant to the master settlement agreement; and
(B) In the case of a nonparticipating manufacturer, the nonparticipating manufacturer affirms that the brand family is to be considered to be its cigarettes for purposes of article nine-b of this chapter. Nothing in this section shall be construed as limiting or otherwise affecting this state's right to maintain that a brand family constitutes cigarettes of a different tobacco product manufacturer for purposes of calculating payments under the master settlement agreement or for purposes of article nine-b of this chapter.
(5) Tobacco product manufacturers shall maintain all invoices and documentation of sales and any other information relied upon for the certification for a period of five years, unless otherwise required by law to maintain them for a greater period of time.
(b) Directory of cigarettes approved for stamping and sale. - The commissioner shall develop and publish on the tax division's website a directory listing all tobacco product manufacturers that have provided current and accurate certifications conforming to the requirements of subsection (a) of this section and all brand families that are listed in the certifications, except as provided in subdivisions (1) and (2) of this subsection.
(1) The commissioner shall not include or retain in the directory the name or brand families of any nonparticipating manufacturer that has failed to provide the required certification or whose certification the commissioner or the attorney general determines is not in compliance with subdivisions (2) and (3), subsection (a) of this section, unless the commissioner has determined that the violation has been cured to the satisfaction of the commissioner and the attorney general.
(2) Neither a tobacco product manufacturer nor brand family shall be included or retained in the directory if the attorney general concludes in the case of a nonparticipating manufacturer, that:
(A) Any escrow payment required pursuant to article nine-b of this chapter for any period for any brand family, whether or not listed by the nonparticipating manufacturer, has not been fully paid into a qualified escrow fund governed by a qualified escrow agreement that has been approved by the attorney general of this state, or
(B) Any outstanding final judgment, including interest on the judgment, for violations of article nine-b of this chapter has not been fully satisfied for the brand family and the nonparticipating manufacturer.
(3) The tax commissioner shall update the directory as necessary in order to correct mistakes and to add or remove a tobacco product manufacturer or brand family.
(A) The commissioner may not remove any manufacturer or brand family from the directory unless the manufacturer and all distributors and other stamping agents registered under article twelve, chapter eleven of this code, have been given at least seven days' prior notice of the intended removal by electronic mail or first class mail the notices shall be e-mailed or posted to the addresses provided by the manufacturers, distributors or other stamping agents for this purpose.
(B) The commissioner shall transmit by email or other practicable means to each distributor or other stamping agent registered under article twelve, chapter eleven of this code, to affix West Virginia tax stamps to cigarettes notice of any addition to or removal from the directory of any tobacco product manufacturer or brand family.
(C) Failure of a manufacturer, distributor or other stamping agent to receive notice under paragraph (A) or (B),subdivision (3), subsection (b) of this section, or failure of the state to provide notice of any addition to or removal from the directory shall not relieve the distributor or other stamping agent of its obligations under this article.
(4) Every tobacco product manufacturer selling cigarettes in this state and every distributor or other stamping agent affixing West Virginia tax stamps to packages of cigarettes for sale in this state shall provide and update as necessary an electronic mail address to the commissioner for the purpose of receiving any notifications required by this article.
(c) Prohibition against stamping or sale of cigarettes not on the directory. - It is unlawful for any person:
(1) To affix a stamp to a package or other container of cigarettes of a tobacco product manufacturer or brand family not included in the directory; or
(2) To sell, offer, or possess for sale in this state, cigarettes of a tobacco product manufacturer or brand family not included in the directory, except as follows:
(A) This subsection shall not prohibit a distributor or other stamping agent from possessing unstamped containers of cigarettes held in inventory for delivery to, or for sale in, another state; and
(B) A person purchasing cigarettes for resale shall not be in violation of this subsection if, at the time the cigarettes were purchased, the manufacturer and brand families of the cigarettes are included in the directory maintained by the tax commissioner and the cigarettes are otherwise lawfully stamped and sold within thirty days after the date of the notice provided under paragraph (A), subdivision (3), subsection (b) of this section.
§16-9D-4. Certification of tobacco product manufacturer wanting to sell product in this state for the first time.

(a) A tobacco product manufacturer whose cigarettes have not previously been sold in this state, whether directly or through a distributor, retailer or similar intermediary or intermediaries, shall, at least thirty calendar days before beginning to sell its cigarettes in this state, make the certification required by section three of this article. In addition to the information required by section three, the manufacturer shall include the following information in its certification:
(1) If the tobacco product manufacturer is a partnership, limited liability company, corporation, association or other business entity, the following where applicable:
(A) The names and addresses of every partner, member, officer, resident agent, director or person performing a function similar to a director;
(B) The names and addresses of any person owning of record a ten percent or greater equity interest in the tobacco product manufacturer; and
(C) A list of all names under which the tobacco manufacturer, or any partner, member, officer, resident agent, director, or person owning a ten percent or greater equity interest in the tobacco manufacturer, previously did business as a tobacco product manufacturer in the United States within the five-year period preceding the date of submission of the certification; and
(2) A statement of whether the tobacco product manufacturer, or any partner, member, officer, resident agent, director, or person owning a ten percent or greater equity interest in the tobacco manufacturer, or in any subsidiary, affiliate or persons controlled by or under common control with the tobacco manufacturer, has ever been an officer, partner, director or person owning a ten percent or greater equity interest in a tobacco product manufacturer that ever defaulted in fully funding the escrow account required by article nine-b of this chapter in the five-year period prior to the date of submission of the certification under this section and, if so, a brief explanation of the facts involved.
§16-9D-5.Agent for service of process.
(a) Requirement for agent for service of process.
(1) Any nonresident or foreign nonparticipating manufacturer that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to having its brand families included or retained in the directory, appoint and continually engage without interruption the services of an agent in this state, or in the United States, to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this article and article nine-b of this chapter, may be served in any manner authorized by law. The service constitutes legal and valid service of process on the nonparticipating manufacturer. The nonparticipating manufacturer shall provide the name, address, phone number and proof of the appointment and availability of the agent to the satisfaction of the commissioner and the attorney general.
(2) Any nonresident stamping agent authorized to affix stamps to packages of cigarettes evidencing payment of the tax levied by article seventeen, chapter eleven of this code, on cigarettes to be sold in this state that has not registered to do business in this state as a foreign corporation or business entity shall, as a condition precedent to being authorized to affix West Virginia tax stamps, appoint and continually engage without interruption the services of an agent in this state, or in the United States, to act as agent for the service of process on whom all process, and any action or proceeding against it concerning or arising out of the enforcement of this article and article nine-b of this chapter, may be served in any manner authorized by law. The service constitutes legal and valid service of process on the nonresident stamping agent. The nonresident stamping agent shall provide the name, address, phone number and proof of the appointment and availability of the agent to the satisfaction of the commissioner and the attorney general.
(b) The nonparticipating manufacturer or the nonresident stamping agent shall provide written notice to the commissioner and the attorney general thirty calendar days prior to termination of the authority of an agent and shall further provide proof to the satisfaction of the attorney general of the appointment of a new agent no less than five calendar days prior to the termination of an existing agent appointment. In the event an agent terminates an agency appointment, the nonparticipating manufacturer, or nonresident stamping agent, as the case may be, shall notify the commissioner and attorney general in writing of the termination within five calendar days and shall include proof to the satisfaction of the attorney general of the appointment of a new agent.
(c) Any nonparticipating manufacturer and any non-resident stamping agent whose cigarettes are sold in this state, who has not appointed and engaged an agent as required by this section, shall be considered to have appointed the secretary of state of West Virginia as the agent and may be proceeded against in the courts of this state by service of process upon the secretary of state: Provided, That the appointment of the secretary of state as the agent of the manufacturer or the nonresident stamping agent shall not satisfy the condition precedent for having the brand families of the nonparticipating manufacturer included or retained in the directory.
§16-9D-6. Reporting of information; escrow installments.
(a) Reporting by distributors and other stamping agents.--
(1) Not later than twenty calendar days after the end of each calendar quarter, and more frequently if directed by the commissioner, each distributor or stamping agent shall submit information required by the commissioner to facilitate compliance with this article, including, but not limited to, a list by brand family of the total number of cigarettes of nonparticipating manufacturers, or in the case of roll your own, the equivalent stick count, for which the distributor or other stamping agent affixed West Virginia stamps and sold in West Virginia during the previous calendar quarter or otherwise paid the tax due for the cigarettes.
(2) The distributor or stamping agent shall maintain, and make available to the commissioner, all invoices and documentation of sales of all nonparticipating manufacturer cigarettes sold in West Virginia and any other information relied upon in reporting to the commissioner for a period of five years.
(b) Disclosure of information. - The commissioner may disclose to the attorney general of this state any information received under this article and requested by the attorney general for purposes of determining compliance with and enforcing the provisions of this article. The commissioner and the attorney general shall share with each other the information received under this article, and may share the information with other federal, state or local agencies only for purposes of enforcement of this article, article nine-b of this chapter, or corresponding laws of other states.
(c) Verification of qualified escrow fund. - The attorney general may require at any time from the nonparticipating manufacturer proof, from the financial institution in which the manufacturer has established a qualified escrow fund for the purpose of compliance with article nine-b of this chapter, of the amount of money in the fund, exclusive of interest, the amount and date of each deposit to the qualified escrow fund, and the amount and date of each withdrawal from the fund.
(d) Requests for additional information. - In addition to the information required to be submitted pursuant to this section, the attorney general may require a stamping agent, distributor or tobacco product manufacturer to submit any additional information including, but not limited to, samples of the packaging or labeling of each brand family, that is necessary to enable the attorney general to determine whether a tobacco product manufacturer is in compliance with this article.
(e) Quarterly escrow installments. - To promote compliance with the provisions of this article, a tobacco product manufacturer subject to the requirements of subdivision (2), subsection (a), section three of this article, who, in the opinion of the attorney general, materially defaults in fully funding its escrow account timely and then cures the default shall make escrow deposits for the calendar year during which the default was cured and ensuing calendar years in quarterly installments during the year in which the sales covered by such deposits are made. The attorney general may require production of information sufficient to enable the attorney general to determine the adequacy of the amount of the installment deposit.
§16-9D-7. Electronic filing of quarterly reports.
(a) Electronic filing required. - After the first day of September, two thousand three, the quarterly reports required by section six of this article from distributors and stamping agents shall be electronically filed with the tax commissioner.
(b) 'Filed Electronically' defined. - For purposes of this section, 'filing electronically' means the filing of a report or other document by any electronic medium acceptable to the tax commissioner including, but not limited to, the filing of reports and other documents by electronic data interchange, or by use of the Internet for web-based filing or other technology specified by the tax commissioner by a procedural rule promulgated as provided in article three, chapter twenty-nine- a of this code.
(c) Signature requirements. - The signature requirement for all reports required to be filed under this article will be met if the submission is made pursuant to the tax commissioner's procedural rule.
(d) Standards. - The tax commissioner shall give due regard to developing uniform standards for formats as adopted by the American National Standards Institute for encryption and filer authentication to ensure that the report information is kept confidential.
§16-9D-8. Penalties and other remedies.
(a) Revocation of business registration certificate and civil money penalty. - In addition to or in lieu of any other civil or criminal remedy provided by law, upon a determination that a distributor, stamping agent or any other person has violated subsection (c), section three of this article, or any rule adopted pursuant thereto, the commissioner may revoke or suspend the business registration certificate of the distributor, stamping agent or other person in the manner provided by article twelve, chapter eleven of this code. Each stamp affixed and each sale or offer to sell cigarettes in violation of subsection (c), section three of this article constitutes a separate violation. The commissioner may also impose a civil penalty in an amount not to exceed the greater of five hundred percent of the retail value of the cigarettes or five thousand dollars upon a determination of violation of subsection (c), section three of this article or any rules adopted pursuant thereto. The penalty shall be imposed and collected in the manner that tax is assessed and collected under article ten, chapter eleven of this code. The amount of penalty collected shall be deposited in the tobacco control special fund created in section nine of this article.
(b) Contraband and seizure. - Any cigarettes that have been sold, offered for sale, or possessed for sale, in this state, in violation of subsection (c), section three of this article, shall be considered contraband under article seventeen, chapter eleven of this code and the cigarettes are subject to seizure and forfeiture as provided in article seventeen, and all cigarettes seized and forfeited shall be destroyed and not resold: Provided, That this subsection shall not prohibit a stamping agent or distributor from possessing unstamped containers of cigarettes held in inventory for delivery to, or for sale in, another state.
(c) Injunction. - The attorney general, on behalf of the commissioner, may seek an injunction to restrain a threatened or actual violation of subsection (c), section three of this article, subsection (a), section five of this article, or subsection (d) of said section five, by a distributor, stamping agent or other person and to compel the distributor, stamping agent or other person to comply with these subsections: Provided, That this subsection shall not prohibit a stamping agent or distributor from possessing unstamped containers of cigarettes held in inventory for delivery to, or for sale in, another state. In any action brought pursuant to this section, the state is entitled to recover the costs of investigation, costs of the action and reasonable attorney fees.
(d) Unlawful sale and distribution. - It is unlawful for a person to:
(1) sell or distribute cigarettes; or
(2) acquire, hold, own, possess, transport, import, or cause to be imported cigarettes that the person knows or should know are intended for distribution or sale in this state in violation of subsection (c), section three of this article. A violation of this subsection shall be a misdemeanor punishable as provided in section nineteen-a, article seventeen, chapter eleven of this code.
(e) Unfair trade practice. - A person who violates subsection (c), section three of this article, engages in an unfair and deceptive trade practice in violation of article six, chapter forty-six-a of this code.
§16-9D-9. Miscellaneous provisions.
(a) Notice and review of determination. - A determination of the commissioner or the attorney general to not include or to remove from the directory a brand family or tobacco product manufacturer is subject to review in the manner prescribed by article ten-a, chapter eleven of this code, by filing a petition for review with the office of tax appeals within thirty days of receipt of the commissioner's written determination to not include or to remove the brand family or tobacco product manufacturer from the directory. A determination not to list in, or to remove from, the directory any brand family or tobacco product manufacturer shall not be stayed during the pendency of appeal procedure.
(b) Applicants for business registration certificate. - No person shall be issued a business registration certificate under article twelve, chapter eleven of this code or granted a renewal of its business registration certificate to act as a distributor or stamping agent unless the person has certified in writing, under penalty of perjury, that the person will comply fully with this article.
(c) Promulgation of rules. - The commissioner and the attorney general may separately promulgate any procedural, interpretive and legislative rules in the manner provided in article three, chapter twenty-nine-a of this code, each considers necessary to effect the purposes of this article.
(d) Recovery of costs and fees by attorney general. - In any action brought by the state to enforce this article, the state is entitled to recover the costs of investigation, expert witness fees, costs of the action and reasonable attorney fees.
(e) Disgorgement of profits for violations of this article. - If a court determines that a person has violated this article, the court shall order any profits, gain, gross receipts or other benefit from the violation to be disgorged and paid to the state treasurer for deposit in the 'tobacco control special fund', which is created in the state treasury. Expenditures from the fund are to be made in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code. Unless otherwise expressly provided, the remedies or penalties provided by this article are cumulative to each other and to the remedies or penalties available under all other laws of this state.
(f) Construction and severability.
(A) If a court of competent jurisdiction finds that the provisions of this article and of article nine-b of this chapter conflict and cannot be harmonized, then the provisions of article nine-b control.
(B) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article causes article nine-b of this chapter to no longer constitute a qualifying or model statute, as those terms are defined in the master settlement agreement, then that portion of this article is not valid.
(C) If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this article is for any reason held to be invalid, unlawful or unconstitutional, that decision shall not affect the validity of the remaining portions of this article or any part thereof.
§16-9D-10. Effective date; implementation.
(a) If this act of the Legislature takes effect ninety days from passage, the first certification by a tobacco product manufacturer described in subsection (a), section three of this article, shall be due the first day of July, two thousand three, covering the two thousand two calendar year, and the additional information required by section three for the current calendar year up to the date of the certification; and the directory described in subsection (b), section three of this article, is published in the state register by the fifteenth day of August, two thousand three, and made available on the tax commissioner's web page by the fifteenth day of October, two thousand three.
(b) If this act of the Legislature is in effect from passage, the first certification by a tobacco product manufacturer described in subsection (a), section three of this article, is due the first day of May, two thousand three, covering the two thousand two calendar year, and the additional information required by section three for the current calendar year up to the date of the certification; and the directory described in subsection (b), section three of this article, shall be published in the state register by the fifteenth day of June, two thousand three, and made available on the tax commissioner's web page by the fifteenth day of August, two thousand three.
(c) If this act of the Legislature takes effect the first day of July, two thousand three, the first certification by a tobacco product manufacturer described in subsection (a), section three of this article, is due the first day of July, two thousand three, covering the two thousand two calendar year, and the additional information required by section three for the current calendar year up to the date of the certification; and the directory described in subsection (b), section three of this article, shall be published in the state register by the fifteenth day of August, two thousand three, and made available on the tax commissioner's web page by the fifteenth day of October, two thousand three."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 397), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3046) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3095, Authorizing the tax commissioner to disclose to the treasurer certain information that would facilitate locating the owners of uncashed and unclaimed income tax refund checks.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3104, Providing for commercial work orders for vehicle and equipment repair, establishing criteria for commercial vehicle and equipment repair vendors and requiring a cost effectiveness analysis for issuing commercial work orders.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect from passage, of
S. B. 112, Allowing farm wineries to manufacture, serve and sell certain wines.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 213, Restricting actions brought by nonresidents in state courts.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage of
S. B. 661 - "A Bill making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated for the fiscal year ending the thirtieth day of June, two thousand three, to the department of health and human resources - division of health - maternal and child health, fund 8750, fiscal year 2003, organization 0506, all supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand three."
At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (S. B. 661) to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and then ordered to second reading.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 52 - "Amending Joint Rule No. 5 of the Joint Rules of the Senate and House of Delegates relating to bill processing dates."
Resolved by the Legislature of West Virginia:
That Joint Rule No. 5 of the Joint Rules of the Senate and House of Delegates be amended to read as follows:
Bill Processing
5. (a) In every regular session beginning after the effective date of this rule, legislation recommended by the Governor or by executive departments or agencies is requested to be filed in the respective Clerks' offices and a copy sent to Legislative Services no later than the tenth day of each regular session of a Legislature.
(b) No bill or joint resolution shall be considered on third reading in its house of origin after the fifty-third fiftieth day unless authorization shall be granted by a concurrent resolution adopted by a two-thirds vote of the members present of both houses: Provided, That the budget bill or any salary or supplementary appropriation bills may be considered at any time.
(c) This rule may be suspended by adopting a concurrent resolution approved by a two-thirds majority of those present and voting in each house. A house desiring to suspend this rule may adopt a concurrent resolution and proceed as if the concurrent resolution had been adopted in both houses and the rule suspended. Any bill or joint resolution passed pursuant to such concurrent resolution may be communicated to the other house with the concurrent resolution or at any time after the concurrent resolution has been communicated to the other house. The other house may proceed to consider such bill or joint resolution only after adopting the concurrent resolution. The provisions of this rule shall not apply to any extended regular session or to any extraordinary session.
Resolutions Introduced

Delegates Campbell, Trump, Michael, Frederick, Kominar, Beane, Craig and Browning offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 95 - "Requesting the Joint Committee on Government and Finance study the annexation laws of the State of West Virginia and of the various states to develop responsible and fair annexation alternatives to provide municipalities with the means to create more effective and efficient governmental entities in the State while at the same time protecting the interests of the counties, businesses and residents whose areas are sought to be annexed."
Whereas, The current annexation laws in West Virginia are problematic and vague and in need of clarification, especially in relation to the absence of any population density requirements and the requirement of adequate cost/benefit analysis and election procedures; and
Whereas, Under current annexation laws there is no requirement that the governing body of the municipality seeking to annex an area meet any required conditions that exist in current law in order for part of a county to be incorporated as a city initially; and
Whereas, In the event that a municipality should be required by legislative enactment to meet certain criteria or conditions prior to annexation, the question of whether or not the required criteria has been met should be made reviewable by a circuit court; and
Whereas, The current annexation laws do not provide for a county to continue to collect any portion of the hotel occupancy tax after the area wherein the hotel or hotels are located has been annexed thus causing the county to lose a source of revenue which is used to help provide services to its citizens and could be used for bonding purposes; and
Whereas, Annexation of an area normally results in significant tax increases on individuals/business being annexed, and annexation methods need to be constructed to be fair to all citizens/businesses; and
Whereas, Some annexation methods allowed by law may discourage existing employers expansion and encourage their movement out of State and discourage new employers from locating in West Virginia, thereby hurting the chances of West Virginians to find a job; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study an annexation laws of the State of West Virginia and of the various sates to develop responsible and fair annexation alternatives to provide municipalities with the means to create more effective and efficient governmental entities in this State while at the same time consider and protect the interests of the counties, residents and businesses whose areas are sought to be annexed; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee and Government and Finance.
Mr. Speaker, Mr. Kiss, offered the following resolution, which was read by its title as follows:
H. C. R. 97 - "Extending the Committee of Conference until March 8, 2003, relating to consideration of Com. Sub. for H. B. 2120, relating to workers' compensation generally."
Resolved by the Legislature of West Virginia:
That pursuant to Rule No. 3 of the Joint Rules of the Senate and House of Delegates, the Committee of Conference is hereby extended for a period of three days, until March 8, 2003, for the express purpose of consideration of matters of disagreement between the two houses as to Com. Sub. for H. B. 2120.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. C. R. 97) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 398), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Webster.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R. 97) adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Spencer, Manchin and Caputo offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. R. 22 - "Urging the West Virginia Department of Administration to examine, assess and consider the needs of the capitol buildings and grounds in satisfying federal requirements relative to complying with the Americans with Disabilities and Vocational Rehabilitation and other Rehabilitation Acts."
Whereas, The capitol buildings and grounds of the State of West Virginia are open for the accommodation of the public in general, many of whom have disabilities, and for the many employees with disabilities who work for the State; and
Whereas, Under federal law, persons with certain disabilities may be considered to have been deprived of their rights by reason of discrimination if the State's facilities are such that those persons cannot reasonably exercise the same access to government buildings and grounds as is available to others; and
Whereas, Those persons with disabilities who are found in a court of law to have been denied their right to access may be entitled to injunctive relief or other forms of redress; and
Whereas, It is the fundamental obligation of the Legislature to assure each and every citizen the right, within the reasonable abilities of that citizen to exercise, physical access to his or her State government; and
Whereas, The Department of Administration, under its statutory duties, is in a peculiarly advantageous position to investigate, discover and advise the Legislature as to what circumstances exist in and about the buildings and grounds of the capitol which might interfere with the exercise of access and use by persons with disabilities, as well as to assess the cost of correcting any failures thereof; therefore, be it
Resolved by the House of Delegates:
That the Department of Administration is hereby requested to examine, assess and consider the needs of the capitol buildings and grounds in making them compliant with federal law relevant to the needs of persons with disabilities; and, be it
Further Resolved, That the Department of Administration report to the Clerk of the House of Delegates on or before the first day of January, 2004, any circumstances or conditions involving the capitol buildings and grounds which require attention relative to admitting of access and use by persons with disabilities.
Petitions

Delegates Pino and Perry presented a petition, signed by two hundred residents of Fayette County, in support of S. B. 56 and H. B. 2142, prohibiting insurers from requiring persons covered under a contract to obtain prescription drugs from a mail-order pharmacy under certain circumstances; which was referred to the Committee on Banking and Insurance.
Consent Calendar

Third Reading

The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 39, Making false alarm felony in certain cases,
S. B. 107, Creating sales tax holiday for back-to-school purchases,
Com. Sub. for S. B. 180, Providing for school construction on cash basis ,
S. B. 189, Relating to approval of out-of-state bank applications to establish bank branches,
S. B. 190, Requiring more examinations for certain banks to track current practice with federal regulators,
Com. Sub. for S. B. 191, Relating to state-chartered credit union converting to federal or another state charter,
S. B. 192, Relating to notice from certain bank holding companies,
S. B. 336, Relating to uniform application forms for credentialing, recredentialing and updating information for health care practitioners,
S. B. 337, Simplifying process for adoption of children from foreign countries,
Com. Sub. for S. B. 338, Establishing medicaid buy-in program for certain individuals with disabilities,
S. B. 342, Limiting time driver's license may be issued to certain non-citizens,
Com. Sub. for S. B. 354, Relating to operating or attempting to operate clandestine drug laboratory; penalty,
S. B. 375, Allowing transfer of contractor's license to new business entity in certain cases,
Com. Sub. for S. B. 387, Increasing time to perfect liens for certain debts,
S. B. 428, Directing auditor issue warrants for payment of certain claims against state,
Com. Sub. for S. B. 455, Authorizing retirement credit for public employment in another state,
Com. Sub. for S. B. 510, Permitting holocaust commission to accept gifts, donations and appropriations from Legislature; reimbursement,
Com. Sub. for S. B. 522, Authorizing county boards of education to lease school property no longer needed,
S. B. 551, Increasing employee contribution to deputy sheriff retirement fund,
S. B. 608, Allowing continuance of summary certificate of need reviews for proposed behavioral health services,
And,
S. B. 646, Authorizing centers for economic development and technology advancement.
On the passage of the bills, the yeas and nays were taken (Roll No. 399-420), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for S. B. 39, S. B. 107, Com. Sub. for S. B. 180, S. B. 189, S. B. 190, Com. Sub. for S. B. 191, S. B. 192, S. B. 336, S. B. 337, Com. Sub. for S. B. 338, S. B. 342, Com. Sub. for S. B. 354, S. B. 375, Com. Sub. for S. B. 387, S. B. 428, Com. Sub. for S. B. 455, Com. Sub. for S. B. 510, Com. Sub. for S. B. 522, S. B. 551, S. B. 608 and S. B. 646) passed.
An amendment to the title of Com. Sub. for S. B. 180, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 180 - "A Bill to amend and reenact sections three, six, fifteen, sixteen and nineteen, article nine-d, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section six, article ten-h of said chapter, all relating to public education; authorizing school building authority to require flood insurance for certain facilities; authorizing authority to accept gift, grant, contribution, bequest or endowment for authority or projects, including equipment; authorizing authority to encourage work-based learning opportunities for students on funded projects and outlining conditions; authorizing use of certain authority funds to finance construction and improvements on a cash basis when certain conditions are met; requiring authority to reserve certain funds for priority use for certain multi-use vocational- technical educational facilities; authorizing use of reserved funds for equipment and updates; specifying bodies that may propose projects; authorizing reserve of certain project funds for certain period to complete budget; requiring major improvement plan as prior condition for distribution of funds; prohibiting distribution of funds to county not prepared to commence expenditure during fiscal year; requiring up-to-date enrollment projections in facility plans and updates; authorizing inclusion of facilities for community and technical college education in plans to construct comprehensive vocational facilities at existing high schools; providing exception from requirement for comprehensive vocational facilities in counties served by multi-county center or existing county center; establishing planning process if such county elects to construct comprehensive center; limiting effect on existing programs; and including introductory vocational-technical courses in middle school grades as part of effective schools for vocational-technical education."
An amendment to the title of Com. Sub. for S. B. 338, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 338 - "A Bill to amend chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article four-d, relating to the creation of a medicaid buy-in program for working individuals with disabilities; establishing legislative intent; defining terms; establishing criteria for participation in the program; creating exceptions; establishing fees and premiums; providing for periodic review; and requiring the secretary of the department of health and human resources to fulfill certain reporting requirements, form an advisory counsel and propose legislative and emergency rules."
An amendment to the title of S. B. 375, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 375 - "A Bill to amend and reenact section seven, article eleven, chapter twenty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to contractor licensing generally; and allowing the transfer of a license to a new business entity in which the license holder is the principal owner, partner, officer or full-time employee."
An amendment to the title of Com. Sub. for S. B. 522, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 522 - "A Bill to amend and reenact sections one-a and seven, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to removing service on certain boards in certain circumstances from limitation on service on county boards; providing for certain advisory opinions by ethics commission and specifying effect of reliance upon them by board members, members elect and persons seeking office; specifying additional training for board members and options for crediting time; and authorizing a county board of education to lease school property that is no longer needed."

An amendment to the title of S. B. 551, recommended by the Committee on Pensions and Retirement, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 551 - "A Bill to amend and reenact sections two, five, twelve, thirteen, twenty, twenty- one and twenty-three, article fourteen-d, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section twenty-four-a, all relating to the deputy sheriff retirement system generally; making technical and grammatical corrections; clarifying that redeposits are submitted on salary earned as a deputy sheriff; providing for payment of accumulated contributions in the event of death of a member; clarifying burial benefit by removal of conflicting language; setting forth limitations regarding return to covered employment; conforming loan provisions with federal law; and clarifying members' rights regarding additional beneficiary nomination."
An amendment to the title of S. B. 608, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 608 - "A Bill to amend and reenact section nineteen, article five, chapter nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to removing sunset provisions to allow for the continuance of summary certificate of need reviews for proposed behavioral health services necessary to maintain federal approval of the medicaid mentally retarded/developmentally disabled waiver program; removing outdated reporting requirements and making technical changes."
An amendment to the title of S. B. 646, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 646 - "A Bill to amend chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article twelve-a; to amend article one, chapter eighteen-c of said code, by adding thereto a new section, designated section five; to amend and reenact section two, article five of said chapter eighteen-c; to amend and reenact section three, article seven of said chapter eighteen-c; and to amend article seven of said chapter eighteen-c, by adding thereto a new section, designated section three-a, all relating to higher education; centers for economic development and technology advancement generally; student financial aid; findings and purpose; definitions; authorizing doctoral institutions to enter into agreements with centers; setting forth requirements for governing bodies; powers and duties of governing bodies; providing for appointment of president; qualifications; powers and duties of president; authorizing agreements; terms and conditions; authorizing audit of center operations; clarifying issues of conflicts of interest; prohibiting waiver of sovereign immunity; and clarifying issues of debt obligations of centers; student financial aid; expanding definition of "eligible institution"; award eligibility in certain circumstances; and establishing funding priority for student financial aid in certain circumstances."
Delegate Staton moved that Com. Sub. for S. B. 180 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 421), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 180) takes effect from its passage.
Delegate Staton moved that S. B. 336 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 422), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 336) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 354 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 423), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Susman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 354) takes effect from its passage.
Delegate Staton moved that S. B. 375 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 424), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Crosier.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 375) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 387 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 425), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 387) takes effect from its passage.
Delegate Staton moved that S. B. 428 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 426), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 428) takes effect from its passage.
Delegate Staton moved that Com. Sub. for S. B. 455 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 427), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 455) takes effect from its passage.
Delegate Staton moved that S. B. 551 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 428), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 551) takes effect from its passage.
Delegate Staton moved that S. B. 646 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 429), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 646) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence therein on those bills requiring the same.
Second Reading

Com. Sub. for S. B. 162, Expunging certain motor vehicle license information for nineteen-year-olds; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 206, Authorizing aides to supervise students in in-school suspensions; limitation; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Education, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.

§18-8-1. Commencement and termination of compulsory school attendance; exemptions.
(a) Compulsory school attendance shall begin with the school year in which the sixth birthday is reached prior to the first day of September of such year or upon enrolling in a publicly supported kindergarten program and continue to the sixteenth birthday. Exemption from the foregoing requirements of compulsory public school attendance shall be made on behalf of any child for the following causes or conditions set forth in this section. Each each such cause or condition being set forth in this section shall be subject to confirmation by the attendance authority of the county.
Exemption A. Instruction in a private, parochial or other approved school. --
(b) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the requirements of this subsection, relating to instruction in a private, parochial or other approved school, are met. The Such instruction shall be in a school approved by the county board of education and for a time equal to the school instructional term of the county for the year set forth in section forty-five, article five of this chapter. In all such private, parochial or other schools approved pursuant to this subsection it shall be the duty of the principal or other person in control, upon the request of the county superintendent, of schools, to furnish to the county board of education such information and records as may be required with respect to attendance, instruction and progress of pupils enrolled between the entrance age and sixteen years.
Exemption B. Instruction in home or other approved place. --
(a) (c) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the requirements of either subdivision (1) of this subsection or the requirements of subdivision (2) of this subsection, both relating to home instruction, are met.
(1) The
Such instruction shall be in the home of such the child or children or at some other place approved by the county board of education and for a time equal to the school instructional term of the county set forth in section forty-five, article five of this chapter. If such the request for home instruction is denied by the county board, of education good and reasonable justification for such the denial must shall be furnished in writing to the applicant by the county board. of education. The instruction in such cases shall be conducted by a person or persons who, in the judgment of the county superintendent and county board of education, are qualified to give instruction in subjects required to be taught in the free public elementary schools of in the state. It shall be the duty of the The person or persons providing the instruction, upon request of the county superintendent, to shall furnish to the county board of education such information and records as may be required, from time to time, with respect to attendance, instruction and progress of pupils enrolled between the entrance age and sixteen years receiving such the instruction. The state department of education board shall develop guidelines for the home schooling of special education students including alternative assessment measures to assure that satisfactory academic progress is achieved.
(b) (2) Notwithstanding the provisions of subsection (a) of this Exemption B, the person or persons providing home instruction meet the requirements for Exemption B when the conditions of this subsection are met The child meets the requirements set forth in this subdivision: Provided, That the county superintendent shall have the right to may seek from the circuit court of the county an order denying the home instruction of the child. The which order may be granted upon a showing of clear and convincing evidence that the child will suffer educational neglect in the child's education or that there are other compelling reasons to deny home instruction.
(2) (A) Annually, the The person or persons providing home instruction present to the county superintendent or county board of education a notice of intent to provide home instruction and the name, and address, age and grade level of any child of compulsory school age to be instructed: Provided, That if a child is enrolled in a public school, notice of intent to provide home instruction shall be given at least two weeks prior to withdrawing such child from public school;
(2) (B) The person or persons providing home instruction submit satisfactory evidence of (i) a high school diploma or equivalent; and (ii) formal education at least four years higher than the most academically advanced child for whom the instruction will be provided Provided, That the requirement of a formal education at least four years higher than the most academically advanced child is waived until the first day of July, two thousand three;
(3) (C) The person or persons providing home instruction outline a plan of instruction for the ensuing school year; and
(4) (D) On or before the thirtieth day of June of each year The the person or persons providing home instruction shall annually obtain an academic assessment of the child for the previous school year and submit the results to the county superintendent. When the academic assessment takes place outside of a public school, the parent or legal guardian shall pay the cost. The requirement of an academic assessment This shall be satisfied in one of the following ways:
(i) Any child receiving home instruction annually takes a standardized test, to be administered at a public school in the county where the child resides, or administered by a licensed psychologist or other person authorized by the publisher of the test, or administered by a person authorized by the county superintendent or county board of education. The child shall be administered a test which has been normed by the test publisher on that child's age or grade group. In no event may the child's parent or legal guardian administer the test. Where a test is administered outside of a public school, the child's parent or legal guardian shall pay the cost of administering the test. The public school or other qualified person shall administer to children of compulsory school age the comprehensive test of basic skills, the California achievement test, the Stanford achievement test or the Iowa tests of basic skills, achievement and proficiency, or an individual standardized achievement test that is nationally normed and provides statistical results which test will be selected by the public school, or other person administering the test, in the subjects of language, reading, social studies, science and mathematics and shall be administered under standardized conditions as set forth by the published instructions of the selected test. No test shall be administered if the publication date is more than ten years from the date of the administration of the test. Each child's test results shall be reported as a national percentile for each of the five subjects tested. Each child's test results shall be made available on or before the thirtieth day of June of the school year in which the test is to be administered to the person or persons providing home instruction, the child's parent or legal guardian and the county superintendent. Upon request of a duly authorized representative of the West Virginia department of education, each child's test results shall be furnished by the person or persons providing home instruction, or by the child's parent or legal guardian, to the state superintendent of schools. Upon notification that the mean of the child's test results for any single year has fallen below the fortieth percentile, the county board of education shall notify the parents or legal guardian of said child, in writing, of the services available to assist in the assessment of the child's eligibility for special education services: Provided, That the identification of a disability shall not preclude the continuation of home schooling.
If the mean of the child's test results for any single year for language, reading, social studies, science and mathematics fall below the fortieth percentile on the selected tests, then the person or persons providing home instruction shall initiate a remedial program to foster achievement above that level and the student shall show improvement. If, after two calendar years, the mean of the child's test results fall below the fortieth percentile level, home instruction shall no longer satisfy the compulsory school attendance requirement exemption; or
(ii) The county superintendent is provided with a written narrative indicating that a portfolio of samples of the child's work has been reviewed and that the child's academic progress for the year is in accordance with the child's abilities. This narrative shall be prepared by a certified teacher or other person mutually agreed upon by the parent or legal guardian and the county superintendent. It shall be submitted on or before the thirtieth day of June of the school year covered by the portfolio. The parent or legal guardian shall be responsible for payment of fees charged for the narrative; or
(iii) Evidence of an alternative academic assessment of the child's proficiency mutually agreed upon by the parent or legal guardian and the county superintendent is submitted to the county superintendent by the thirtieth day of June of the school year being assessed. The parent or legal guardian shall be responsible for payment of fees charged for the assessment.
(i) The child receiving home instruction takes a nationally normed standardized achievement test to be administered under standardized conditions as set forth by the published instructions of the selected test in the subjects of reading, language, mathematics, science and social studies: Provided, That in no event may the child's parent or legal guardian administer the test. The publication date of the chosen test shall not be more than ten years from the date of the administration of the test. The child shall be considered to have made acceptable progress when the mean of the child's test results in the required subject areas for any single year meets or exceeds the fiftieth percentile or, if below the fiftieth percentile, shows improvement from the previous year's results;
(ii) The child participates in the testing program currently in use in the state's public schools. The test shall be administered to the child at a public school in the county of residence. Determination of acceptable progress will be based on current guidelines of the state testing program;
(iii) The county superintendent is provided with a written narrative indicating that a portfolio of samples of the child's work has been reviewed and that the child's academic progress for the year is in accordance with the child's abilities. If the narrative indicates that the child's academic progress for the year is in accordance with the child's abilities, the child shall be considered to have made acceptable progress. This narrative shall be prepared by a certified teacher whose certification number shall be provided. The narrative shall include a statement about the child's progress in the areas of reading, language, mathematics, science and social studies and shall note any areas which, in the professional opinion of the reviewer, show need for improvement or remediation; or
(iv) The child completes an alternative academic assessment of proficiency that is mutually agreed upon by the parent or legal guardian and the county superintendent. Criteria for acceptable progress shall be mutually agreed upon by the same parties; and
(E) When the annual assessment fails to show acceptable progress as defined under the appropriate assessment option set forth in paragraph (D) of this subdivision, the person or persons providing home instruction shall initiate a remedial program to foster acceptable progress and the county board shall notify the parents or legal guardian of the child, in writing, of the services available to assist in the assessment of the child's eligibility for special education services: Provided, That the identification of a disability shall not preclude the continuation of home schooling. In the event that the child does not achieve acceptable progress as defined under the appropriate assessment option set forth in paragraph (D) of this subdivision for a second consecutive year, the person or persons providing instruction shall submit to the county superintendent additional evidence that appropriate instruction is being provided.
(c) (3) This subdivision applies to both home instruction exemptions set forth in subdivisions (1) and (2) of this subsection. The county superintendent or a designee shall offer such assistance, including textbooks, other teaching materials and available resources, as may assist the person or persons providing home instruction subject to their availability. Any child receiving home instruction may upon approval of the county board of education exercise the option to attend any class offered by the county board of education as the person or persons providing home instruction may deem consider appropriate subject to normal registration and attendance requirements.
Exemption C. Physical or mental incapacity. --
(d) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the requirements of this subsection, relating to physical or mental incapacity, are met. Physical or mental incapacity shall consist consists of incapacity for school attendance and the performance of school work. In all cases of prolonged absence from school due to incapacity of the child to attend, the written statement of a licensed physician or authorized school nurse shall be required under the provisions of this article: Provided, That in all cases, incapacity shall be narrowly defined and in no case shall the provisions of this article allow for the exclusion of the mentally, physically, emotionally or behaviorally handicapped child otherwise entitled to a free appropriate education.
Exemption D. Residence more than two miles from school or school bus route. -The distance of residence from a school, or school bus route providing free transportation, shall be reckoned by the shortest practicable road or path, which contemplates travel through fields by right of permission from the landholders or their agents. It shall be the duty of the county board, of education, subject to written consent of landholders, or their agents, to provide and maintain safe foot bridges across streams off the public highways where such are required for the safety and welfare of pupils whose mode of travel from home to school or to school bus route must necessarily be other than along the public highway in order for said road or path to be not over two miles from home to school or to school bus providing free transportation;
Exemption E. Hazardous conditions. --
(e) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if Conditions conditions rendering school attendance impossible or hazardous to the life, health or safety of the child exist.
Exemption F. High school graduation. --
(f) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section upon Such exemption shall consist of regular graduation from a standard senior high school.
Exemption G. Granting work permits. --
(g) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the child is granted a work permit pursuant to this subsection. The county superintendent may, after due investigation, grant work permits to youths under sixteen years of age, subject to state and federal labor laws and regulations: Provided, That a work permit may not be granted on behalf of any youth who has not completed the eighth grade of school.
Exemption H. Serious illness or death in the immediate family of the pupil. --
(h) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if a serious illness or death in the immediate family of the pupil has occurred. It is expected that the county attendance director will ascertain the facts in all cases of such absences about which information is inadequate and report same the facts to the county superintendent. of schools;
Exemption I. Destitution in the home. --
(i) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the requirements of this subsection, relating to destitution in the home, are met. Exemption based on a condition of extreme destitution in the home may be granted only upon the written recommendation of the county attendance director to the county superintendent following careful investigation of the case. A copy of the report confirming such the condition and school exemption shall be placed with the county director of public assistance. This enactment contemplates every reasonable effort that may properly be taken on the part of both school and public assistance authorities for the relief of home conditions officially recognized as being so destitute as to deprive children of the privilege of school attendance. Exemption for this cause shall not be allowed when such the destitution is relieved through public or private means.
Exemption J. Church ordinances; observances of regular church ordinances. --
(j) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the requirements of this subsection, relating to church ordinances and observances of regular church ordinances, are met. The county board of education may approve exemption for religious instruction upon written request of the person having legal or actual charge of a child or children: Provided, That such the exemption shall be subject to the rules prescribed by the county superintendent and approved by the county board. of education;
Exemption K. Alternative private, parochial, church or religious school instruction. --
(k) A child shall be exempt from the compulsory school attendance requirement set forth in subsection (a) of this section if the requirements of this subsection, relating to alternative private, parochial, church or religious school instruction, are met. In lieu of the provisions of Exemption A herein above, exemption Exemption shall be made for any child attending any private school, parochial school, church school, school operated by a religious order or other nonpublic school which elects to comply with the provisions of article twenty-eight chapter eighteen of the code of West Virginia of this chapter.
(l) The completion of the eighth grade shall not exempt any child under sixteen years of age from the compulsory attendance provision of this article. Provided, That there is a public high school or other public school of advanced grades or a school bus providing free transportation to any such school, the route of which is within two miles of the child's home by the shortest practicable route or path as hereinbefore specified under Exemption D of this section."
The bill was then ordered to third reading.
S. B. 357, Relating to standard non-forfeiture law for individual deferred annuities; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Banking and Insurance, was reported by the Clerk and adopted, amending the bill on page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 13. LIFE INSURANCE.
§33-13-30a. Standard nonforfeiture law for individual deferred annuities.
(1) (a) This section shall be known as the 'Standard Nonforfeiture Law for Individual Deferred Annuities'.
(2) (b) This section shall may not apply to any reinsurance, group annuity purchased under a retirement plan or plan of deferred compensation established or maintained by an employer (including a partnership or sole proprietorship) or by an employee organization, or by both, other than a plan providing individual retirement accounts or individual retirement annuities under Section 408 of the Internal Revenue Code, as now or hereafter amended, premium deposit fund, variable annuity, investment annuity, immediate annuity, any deferred annuity contract after annuity payments have commenced, or reversionary annuity, nor to any contract which shall be delivered outside this state through an agent or other representative of the company issuing the contract.
(3)(c) In the case of contracts issued on or after the operative date of this section as defined in subsection (12)(l) of this section, no contract of annuity, except as stated in subsection (2)(b) of this section, shall be delivered or issued for delivery in this state unless it contains in substance the following provisions, or corresponding provisions which, in the opinion of the commissioner, are at least as favorable to the contract holder, upon cessation of payment of considerations under the contract:
(a)(1) That upon cessation of payment of considerations under a contract, the company will grant a paid-up annuity benefit on a plan stipulated in the contract of such the value as is specified in subsections (5), (6), (7), (8) and (10) (e), (f), (g),(h) and (j)of this section;
(b)(2) If a contract provides for a lump sum settlement at maturity or at any other time, that, upon surrender of the contract at or prior to the commencement of any annuity payments, the company will pay in lieu of any paid-up annuity benefit a cash surrender benefit of such the amount as is specified in subsections (5), (6), (8) and (10) (e), (f), (h) and (j) of this section. The company shall reserve the right to defer the payment of such the cash surrender benefit for a period of six months after demand therefor with surrender of the contract;
(c)(3) A statement of the mortality table, if any, and interest rates used in calculating any minimum paid-up annuity, cash surrender or death benefits that are guaranteed under the contract, together with sufficient information to determine the amounts of such the benefits; and
(d)(4) A statement that any paid-up annuity, cash surrender or death benefits that may be available under the contract are not less than the minimum benefits required by any statute of the state in which the contract is delivered and an explanation of the manner in which such the benefits are altered by the existence of any additional amounts credited by the company to the contract, any indebtedness to the company on the contract or any prior withdrawals from or partial surrenders of the contract.
Notwithstanding the requirements of this subsection, any deferred annuity contract may provide that if no considerations have been received under a contract for a period of two full years and the portion of the paid-up annuity benefit at maturity on the plan stipulated in the contract arising from considerations paid prior to such the period would be less than twenty dollars monthly, the company may at its option terminate such the contract by payment in cash of the then present value of such the portion of the paid-up annuity benefit, calculated on the basis of the mortality table, if any, and interest rate specified in the contract for determining the paid-up annuity benefit and by such the payment shall be relieved of any further obligation under such the contract.
(4)(d) The minimum values as specified in subsections (5), (6), (7), (8) and (10) (e), (f), (g) (h) and (j) of this section of any paid-up annuity, cash surrender or death benefits available under an annuity contract shall be based upon minimum nonforfeiture amounts as defined in this section:
(a)(1) With respect to contracts providing for flexible considerations, the minimum nonforfeiture amount at any time at or prior to the commencement of any annuity payments shall be equal to an accumulation up to such the time at a rate of interest of three percent per annum of percentages of the net considerations (as hereinafter defined) paid prior to such the time, decreased by the sum of:
(i)(A) Any prior withdrawals from or partial surrenders of the contract accumulated at a rate of interest of three percent per annum; and
(ii)(B) The amount of any indebtedness to the company on the contract, including interest due and accrued; and increased by any existing additional amounts credited by the company to the contract.
The net considerations for a given contract year used to define the minimum nonforfeiture amount shall be an amount not less than zero and shall be equal to the corresponding gross considerations credited to the contract during that contract year less than an annual contract charge of thirty dollars and less a collection charge of one dollar and twenty-five cents per consideration credited to the contract during that contract year. The percentages of net considerations shall be sixty-five percent of the net consideration for the first contract year and eighty-seven and one-half percent of the net considerations for the second and later contract years. Notwithstanding the provisions of the preceding sentence, the percentage shall be sixty-five percent of the portion of the total net consideration for any renewal contract year which exceeds by not more than two times the sum of those portions of the net considerations in all prior contract years for which the percentage was sixty-five percent.
Notwithstanding any other provision of this section, any contract issued on or after the first day of July, two thousand three, and before the first day of July, two thousand five, the interest rate at which net considerations, prior withdrawals and partial surrenders shall be accumulated for the purpose of determining nonforfeiture amounts may not be less than one and one-half percent per annum.
(b)(2) With respect to contracts providing for fixed scheduled considerations, minimum nonforfeiture amounts shall be calculated on the assumption that considerations are paid annually in advance and shall be defined as for contracts with flexible considerations which are paid annually with two exceptions:
(1)(A) The portion of the net consideration for the first contract year to be accumulated shall be the sum of sixty-five percent of the net consideration for the first contract year plus twenty-two and one-half percent of the excess of the net consideration for the first contract year over the lesser of the net considerations for the second and third contract years.
(2)(B) The annual contract charge shall be the lesser of: (i) Thirty dollars; or (ii) ten percent of the gross annual consideration.
(c)(3) With respect to contracts providing for a single consideration, minimum nonforfeiture amounts shall be defined as for contracts with flexible considerations except that the percentage of net consideration used to determine the minimum nonforfeiture amount shall be equal to ninety percent and the net consideration shall be the gross consideration less a contract charge of seventy- five dollars.
(5)(e) Any paid-up annuity benefit available under a contract shall be such that its present value on the date annuity payments are to commence is at least equal to the minimum nonforfeiture amount on that date. Such The present value shall be computed using the mortality table, if any, and the interest rate specified in the contract for determining the minimum paid-up annuity benefits guaranteed in the contract.
(6)(f) For contracts which provide cash surrender benefits, such the cash surrender benefits available prior to maturity shall not be less than the present value as of the date of surrender of that portion of the maturity value of the paid-up annuity benefit which would be provided under the contract at maturity arising from consideration paid prior to the time of cash surrender reduced by the amount appropriate to reflect any prior withdrawals from or partial surrenders of the contract, such the present value being calculated on the basis of an interest rate not more than one percent higher than the interest rate specified in the contract for accumulating the net considerations to determine such the maturity value, decreased by the amount of any indebtedness to the company on the contract, including interest due and accrued, and increased by any existing additional amounts credited by the company to the contract. In no event shall any cash surrender benefit be less than the minimum nonforfeiture amount at that time. The death benefit under such the contracts shall be at least equal to the cash surrender benefit.
(7)(g) For contracts which do not provide cash surrender benefits, the present value of any paid-up annuity benefit available as a nonforfeiture option at any time prior to maturity shall not be less than the present value of that portion of the maturity value of the paid-up annuity benefit provided under the contract arising from considerations paid prior to the time the contract is surrendered in exchange for, or changed to, a deferred paid-up annuity, such the present value being calculated for the period prior to the maturity date on the basis of the interest rate specified in the contract for accumulating the net considerations to determine such the maturity value and increased by any existing additional amounts credited by the company to the contract. For contracts which do not provide any death benefits prior to the commencement of any annuity payments, such the present values shall be calculated on a basis of such the interest rate and the mortality table specified in the contract for determining the maturity value of the paid-up annuity benefit. However, in no event shall the present value of a paid-up annuity benefit be less than the minimum nonforfeiture amount at that time.
(8)(h) For the purpose of determining the benefits calculated under subsections (6)(f) and (7) (g) of this section, in the case of annuity contracts under which an election may be made to have annuity payments commence at optional maturity dates, the maturity date shall be deemed to be the latest date for which election shall be permitted by the contract, but shall not be deemed to be later than the anniversary of the contract next following the annuitant's seventieth birthday or the tenth anniversary of the contract, whichever is later.
(9)(i) Any contract which does not provide cash surrender benefits or does not provide death benefits at least equal to the minimum nonforfeiture amount prior to the commencement of any annuity payments shall include a statement in a prominent place in the contract that such the benefits are not provided.
(10)(j) Any paid-up annuity, cash surrender or death benefits available at any time, other than on the contract anniversary under any contract with fixed scheduled considerations, shall be calculated with allowance for the lapse of time and the payment of any scheduled considerations beyond the beginning of the contract year in which cessation of payment of considerations under the contract occurs.
(11)(k) For any contract which provides, within the same contract by rider or supplemental contract provision, both annuity benefits and life insurance benefits that are in excess of the greater of cash surrender benefits or a return of the gross considerations with interest, the minimum nonforfeiture benefits shall be equal to the sum of the minimum nonforfeiture benefits for the annuity portion and the minimum nonforfeiture benefits, if any, for the life insurance portion computed as if each portion were a separate contract. Notwithstanding the provisions of subsections (5), (6), (7), (8) and (10) (e), (f), (g) (h) and (j) of this section, additional benefits payable: (a)(1) In the event of total and permanent disability; (b)(2) as reversionary annuity or deferred reversionary annuity benefits; or (c)(3) as other policy benefits additional to life insurance, endowment and annuity benefits and considerations for all such the additional benefits shall be disregarded in ascertaining the minimum nonforfeiture amounts, paid-up annuity, cash surrender and death benefits that may be required by this section. The inclusion of such the additional benefits shall not be required in any paid-up benefits unless such the additional benefits separately would require minimum nonforfeiture amounts, paid-up annuity, cash surrender and death benefits.
(12)(l) After the effective date of this section, any company may file with the commissioner a written notice of its election to comply with the provisions of this section after a specified date before the second anniversary of the effective date of this section. After the filing of such the notice, then upon such the specified date which shall be the operative date of this section for such the company, this section shall become operative with respect to annuity contracts thereafter issued by such the company. If a company makes no such election, the operative date of this section for such the company shall be the second anniversary of the effective date of this section."
The bill was then ordered to third reading.
Com. Sub. for S. B. 422, Allowing public service commission to change certain rates for municipalities or cooperative utilities; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary , was reported by the Clerk and adopted, amending the bill on page seven, section four-b, beginning on line one hundred fifteen, following the second word "to", by striking out the words "future modification, if it is determined that such the interim or emergency rate is necessary to protect the municipality from financial hardship, including, but not limited to, and if that financial hardship is attributable solely to the purchase of the utility commodity sold or financial hardship attributable to the direct or indirect ownership or operation of the utility" and inserting in lieu thereof the words "refund or future modification, if it is determined that such the interim or emergency rate is necessary to protect the municipality from financial hardship and if that financial hardship is attributable solely to the purchase of the utility commodity sold, or the commission determines that a temporary or interim rate increase is necessary for the utility to avoid financial distress."
The bill was then ordered to third reading.
The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading.
Com. Sub. for S. B. 424, Authorizing commissioner of corrections to consent to transfer of convicted offenders under federal treaty; informed consent; on second reading, coming up in reguoar order, was read a second time and ordered to third reading.
S. B. 436, Directing public service commission implement 211 information and referral system; on second reading, coming up in reguoar order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 437, Requiring joint committee on government and finance approve certain acquisitions, construction and long-term agreements; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page nine, section four, line one hundred forty-four, following the words "sum of" by striking out the word "five" and inserting in lieu thereof the word "one".
On page nine, section four, line one hundred forty-seven, following the word "review" by striking out the rest of the subsection and inserting in lieu thereof the following:
"The secretary of administration shall provide to the joint committee on government and finance a copy of the contract or agreement to be entered and a report setting forth a detailed summary of the terms of the contract or agreement."
On page twelve, section forty, line forty-nine, following the words "sum of" by striking out the word "five" and inserting in lieu thereof the word "one".
And,
On page twelve, section forty, line fifty-two, following the word "review" by striking out the rest of the subsection and inserting in lieu thereof the following:
"The secretary of administration shall provide to the joint committee on government and finance a copy of the contract or agreement to be entered and a report setting forth a detailed summary of the terms of the contract or agreement."
The bill was then ordered to third reading.
Com. Sub. for S. B. 440, Establishing Contractors Notice and Opportunity to Cure Act; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 467, Allowing insurance agencies to operate as managing general agents; other provisions; on second reading, coming up in regular order, was read a second time.
The Clerk announced an amendment recommended by the Committee on Finance.
At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading with the Committee amendment pending and the rule was suspended to permit the offering and consideration of an amendment by Delegate Michael.
The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading:
S. B. 486, Requiring certified public accountant to notify insurer's board or audit committee of adverse financial condition; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 493, Eliminating certain administrative duties of commissioner of agriculture; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 505, Providing municipal fire chiefs retain rank in certain cases; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 534, Creating Third-Party Administrator Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance , was reported by the Clerk and adopted, amending the bill on page one, by striking out everything following the enacting section and inserting in lieu thereof the following:
"ARTICLE 46. THIRD-PARTY ADMINISTRATOR ACT.
§33-46-1. Short title.
This article may be cited as the 'Third-Party Administrator Act'.
§33-46-2. Definitions.
(a) 'Administrator' or 'third-party administrator' means a person who directly or indirectly underwrites or collects charges or premiums from, or adjusts or settles claims on residents of this state, in connection with life, annuity or accident and sickness coverage offered or provided by an insurer, except any of the following:
(1) An employer, or a wholly owned direct or indirect subsidiary of an employer, on behalf of its employees or the employees of one or more subsidiaries or affiliated corporations of the employer;
(2) A union on behalf of its members;
(3) An insurer that is licensed to transact insurance in this state with respect to a policy lawfully issued and delivered in and pursuant to the laws of this state or another state including:
(A) A health service corporation licensed under article twenty-four of this chapter;
(B) A health care corporation licensed under article twenty-five of this chapter;
(C) A health maintenance organization licensed under article twenty-five-a of this chapter; and
(D) A prepaid limited health service organization licensed under article twenty-five-d of this chapter.
(4) An insurance producer licensed to sell life, annuities or health coverage in this state whose activities are limited exclusively to the sale of insurance;
(5) A creditor on behalf of its debtors with respect to insurance covering a debt between the creditor and its debtors;
(6) A trust and its trustees, agents and employees acting pursuant to the trust established in conformity with 29 U. S. C. Section 186;
(7) A trust exempt from taxation under Section 501(a) of the Internal Revenue Code, its trustees and employees acting pursuant to the trust, or a custodian and the custodian's agents or employees acting pursuant to a custodian account which meets the requirements of Section 401(f) of the Internal Revenue Code;
(8) A credit union or a financial institution that is subject to supervision or examination by federal or state banking authorities, or a mortgage lender, to the extent they collect and remit premiums to licensed insurance producers or to limited lines producers or authorized insurers in connection with loan payments;
(9) A credit card issuing company that advances for and collects insurance premiums or charges from its credit card holders who have authorized collection;
(10) A person who adjusts or settles claims in the normal course of that person's practice or employment as an attorney at law and who does not collect charges or premiums in connection with life, annuity or accident and sickness coverage;
(11) An adjuster licensed by this state whose activities are limited to adjustment of claims;
(12) A person licensed as a managing general agent in this state, whose activities are limited exclusively to the scope of activities conveyed under that license; or
(13) An administrator who is affiliated with an insurer and who only performs the contractual duties, between the administrator and the insurer, of an administrator for the direct and assumed business of the affiliated insurer. The insurer is responsible for the acts of the administrator and is responsible for providing all of the administrator's books and records to the insurance commissioner, upon a request from the insurance commissioner. For purposes of this subdivision, 'insurer' means a licensed insurance company, prepaid hospital or medical care plan, health maintenance organization or a health care corporation.
(b) 'Affiliate or affiliated' means an entity or person who directly or indirectly through one or more intermediaries, controls or is controlled by, or is under common control with, a specified entity or person.
(c) 'Commissioner' means the insurance commissioner of this state.
(d) 'Control', 'controlling', 'controlled by' and 'under common control with' mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, by contract other than a commercial contract for goods or nonmanagement services, or otherwise, unless the power is the result of an official position with or corporate office held by the person. Control shall be presumed to exist if any person, directly or indirectly, owns, controls, holds with the power to vote or holds proxies representing ten percent or more of the voting securities of any other person. This presumption may be rebutted by a showing made in the manner provided by the West Virginia insurance holding company systems act that control does not exist in fact. The commissioner may determine, after furnishing all persons in interest notice and opportunity to be heard and making specific findings of fact to support the determination that control exists in fact, notwithstanding the absence of a presumption to that effect.
(e) 'GAAP' means United States generally accepted accounting principles consistently applied.
(f) 'Home state' means the District of Columbia and any state or territory of the United States in which an administrator is incorporated or maintains its principal place of business. If neither the state in which the administrator is incorporated, nor the state in which it maintains its principal place of business has adopted the national association of insurance commissioners' model third party administrator act or a substantially similar law governing administrators, the administrator may declare another state, in which it conducts business, to be its 'home state'.
(g) 'Insurance producer' means a person who sells, solicits or negotiates a contract of insurance as those terms are defined in this article.
(h) 'Insurer' means a person undertaking to provide life, annuity or accident and sickness coverage or self-funded coverage under a governmental plan or church plan in this state. For the purposes of this article, insurer includes an employer, a licensed insurance company, a prepaid hospital or medical care plan, health maintenance organization or a health care corporation.
(i) 'Negotiate' means the act of conferring directly with or offering advice directly to a purchaser or prospective purchaser of a particular contract of insurance concerning any of the substantive benefits, terms or conditions of the contract, provided that the person engaged in that act either sells insurance or obtains insurance from insurers for purchasers.
(j) 'Nonresident administrator' means a person who is applying for licensure or is licensed in any state other than the administrator's home state.
(k) 'Person' means an individual or a business entity.
(l) 'Sell' means to exchange a contract of insurance by any means, for money or its equivalent, on behalf of an insurance company.
(m) 'Solicit' means attempting to sell insurance or asking or urging a person to apply for a particular kind of insurance from a particular company.
(n) 'Underwrites' or 'underwriting' means, but is not limited to, the acceptance of employer or individual applications for coverage of individuals in accordance with the written rules of the insurer or self-funded plan; and the overall planning and coordinating of a benefits program.
(o) 'Uniform application' means the current version of the national association of insurance commissioners uniform application for third-party administrators.
§33-46-3. Written agreement necessary.
(a) No administrator may act as such without a written agreement between the administrator and the insurer, and the written agreement shall be retained as part of the official records of both the insurer and the administrator for the duration of the agreement and for ten years thereafter. The agreement shall contain all provisions required by this statute, except insofar as those requirements do not apply to the functions performed by the administrator.
(b) The written agreement shall include a statement of duties that the administrator is expected to perform on behalf of the insurer and the lines, classes or types of insurance which the administrator is to be authorized to administer. The agreement shall make provision with respect to underwriting or other standards pertaining to the business underwritten by the insurer.
(c) The insurer or administrator may, with written notice, terminate the written agreement for cause as provided in the agreement. The insurer may suspend the underwriting authority of the administrator during the pendency of any dispute regarding the cause for termination of the written agreement. The insurer shall fulfill any lawful obligations with respect to policies affected by the written agreement, regardless of any dispute between the insurer and the administrator.
§33-46-4. Payment to administrator.
If an insurer uses the services of an administrator, the payment to the administrator of any premiums or charges for insurance by or on behalf of the insured party shall be considered to have been received by the insurer, and the payment of return premiums or claim payments forwarded by the insurer to the administrator shall not be considered to have been paid to the insured party or claimant until the payments are received by the insured party or claimant. Nothing in this section limits any right of the insurer against the administrator resulting from the failure of the administrator to make payments to the insurer, insured parties or claimants.
§33-46-5. Maintenance of information.
(a) An administrator shall maintain and make available to the insurer complete books and records of all transactions performed on behalf of the insurer. The books and records shall be maintained in accordance with prudent standards of insurance recordkeeping and shall be maintained for a period of not less than ten years from the date of their creation.
(b) The commissioner shall have access to books and records maintained by an administrator for the purposes of examination, audit and inspection. Any documents, materials or other information in the possession or control of the commissioner that is furnished by an administrator, insurer, insurance producer or an employee or agent thereof acting on behalf of the administrator, insurer or insurance producer, or obtained by the commissioner in an investigation is confidential by law and privileged, is not subject to chapter twenty-nine-b of this code, is not subject to subpoena and is not subject to discovery or admissible as evidence in any private civil action. However, the commissioner may use the documents, materials or other information in the furtherance of any regulatory or legal action brought as a part of the commissioner's official duties.
(c) Neither the commissioner nor any person who received documents, materials or other information while acting under the authority of the commissioner shall be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (b) of this section.
(d) In order to assist in the performance of his or her duties, the commissioner may:
(1) Share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (b) of this section, with other state, federal and international regulatory agencies, with the national association of insurance commissioners, its affiliates or subsidiaries and with state, federal and international law-enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information;
(2) Receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners, its affiliates or subsidiaries and from regulatory and law-enforcement officials of other foreign or domestic jurisdictions and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information; and
(3) Enter into agreements governing the sharing and use of information consistent with this subsection.
(e) No waiver of any applicable privilege or claim of confidentiality in the documents, materials or information shall occur as a result of disclosure to the commissioner under this section or as a result of sharing as authorized in subsection (d) of this section.
(f) Nothing in this article prohibits the commissioner from releasing final, adjudicated actions, including for cause terminations, that are open to public inspection pursuant to chapter twenty-nine-b of this code to a database or other clearinghouse service maintained by the national association of insurance commissioners, its affiliates or subsidiaries.
(g) The insurer owns the records generated by the administrator pertaining to the insurer; however, the administrator shall retain the right to continuing access to books and records to permit the administrator to fulfill all of its contractual obligations to insured parties, claimants and the insurer.
(h) In the event the insurer and the administrator cancel their agreement, the administrator may, by written agreement with the insurer, transfer all records to a new administrator rather than retain them for ten years notwithstanding the provisions of subsection (a) of this section. In those cases, the new administrator shall acknowledge, in writing, that it is responsible for retaining the records of the prior administrator as required in subsection (a) of this section.
§33-46-6. Approval of advertising.
An administrator may use only advertising pertaining to the business underwritten by an insurer that has been approved in writing by the insurer in advance of its use.
§33-46-7. Responsibilities of the insurer.
(a) If an insurer uses the services of an administrator, the insurer is responsible for determining the benefits, premium rates, underwriting criteria and claims payment procedures applicable to the coverage and for securing reinsurance, if any. The rules pertaining to these matters shall be provided, in writing, by the insurer to the administrator. The responsibilities of the administrator as to any of these matters shall be set forth in the written agreement between the administrator and the insurer.
(b) It is the sole responsibility of the insurer to provide for competent administration of its programs.
(c) In cases where an administrator administers benefits for more than one hundred certificate holders on behalf of an insurer, the insurer shall, at least semiannually, conduct a review of the operations of the administrator. At least one review shall be an on-site audit of the operations of the administrator.
(d) For purposes of this section, 'insurer' means a licensed insurance company, prepaid hospital or medical care plan, health maintenance organization or a health care corporation.
§33-46-8. Premium collection and payment of claims.
(a) All insurance charges or premiums collected by an administrator on behalf of or for an insurer, and the return of premiums received from that insurer, shall be held by the administrator in a fiduciary capacity. The funds shall be immediately remitted to the person entitled to them or shall be deposited promptly in a fiduciary account established and maintained by the administrator in a federally or state-insured financial institution. The written agreement between the administrator and the insurer shall provide for the administrator to periodically render an accounting to the insurer detailing all transactions performed by the administrator pertaining to the business underwritten by the insurer.
(b) If charges or premiums deposited in a fiduciary account have been collected on behalf of or for one or more insurers, the administrator shall keep records clearly recording the deposits in and withdrawals from the account on behalf of each insurer. The administrator shall keep copies of all the records and, upon request of an insurer, shall furnish the insurer with copies of the records pertaining to the deposits and withdrawals.
(c) The administrator shall not pay any claim by withdrawals from a fiduciary account in which premiums or charges are deposited. Withdrawals from the account shall be made as provided in the written agreement between the administrator and the insurer. The written agreement shall address, but not be limited to, the following:
(1) Remittance to an insurer entitled to remittance;
(2) Deposit in an account maintained in the name of the insurer;
(3) Transfer to and deposit in a claims-paying account, with claims to be paid as provided for in subsection (d) of this section;
(4) Payment to a group policyholder for remittance to the insurer entitled to the remittance;
(5) Payment to the administrator of its commissions, fees or charges; and
(6) Remittance of return premium to the person or persons entitled to the return premium.
(d) All claims paid by the administrator from funds collected on behalf of or for an insurer shall be paid only on drafts or checks of and as authorized by the insurer.
§33-46-9. Compensation to the administrator.
(a) An administrator may not enter into an agreement or understanding with an insurer in which the effect is to make the amount of the administrator's commissions, fees or charges contingent upon savings effected in the adjustment, settlement and payment of losses covered by the insurer's obligations. This provision shall not prohibit an administrator from receiving performance-based compensation for providing hospital or other auditing services.
(b) This section shall not prevent the compensation of an administrator from being based on premiums or charges collected or the number of claims paid or processed.
§33-46-10. Notice to covered individuals; disclosure of charges and fees.

(a) When the services of an administrator are used, the administrator shall provide a written notice approved by the insurer to covered individuals advising them of the identity of, and relationship among, the administrator, the policyholder and the insurer.
(b) When an administrator collects funds, the reason for collection of each item shall be identified to the insured party and each item shall be shown separately from any premium. Additional charges may not be made for services to the extent the services have been paid for by the insurer.
(c) The administrator shall disclose to the insurer all charges, fees and commissions received from all services in connection with the provision of administrative services for the insurer, including any fees or commissions paid by insurers providing reinsurance.
§33-46-11. Delivery of materials to covered individuals.
Any policies, certificates, booklets, termination notices or other written communications delivered by the insurer to the administrator for delivery to insured parties or covered individuals shall be delivered by the administrator promptly after receipt of instructions from the insurer to deliver them.
§33-46-12. Home state certificate of authority or license.
(a) Prior to conducting business in West Virginia an administrator or third party administrator must be licensed in accordance with the requirements of this article.
(b) If West Virginia is a person's home state, then the person may apply for licensure in this state by filing a uniform application with the insurance commissioner. The application shall include or be accompanied by the following information and documents:
(1) All basic organizational documents of the applicant, including any articles of incorporation, articles of association, partnership agreement, trade name certificate, trust agreement, shareholder agreement and other applicable documents and all amendments to the documents;
(2) The bylaws, rules, regulations or similar documents regulating the internal affairs of the applicant;
(3) National association of insurance commissioners' biographical affidavits for the individuals who are responsible for the conduct of affairs of the applicant, including all members of the board of directors, board of trustees, executive committee or other governing board or committee; the principal officers in the case of a corporation or the partners or members in the case of a partnership, association or limited liability company; any shareholders or member holding directly or indirectly ten percent or more of the voting stock, voting securities or voting interest of the applicant; and any other person who exercises control or influence over the affairs of the applicant;
(4) Audited annual financial statements or reports for the two most recent fiscal years that prove that the applicant has a positive net worth. If the applicant has been in existence for less than two fiscal years, the application shall include financial statements or reports, certified by an officer of the applicant and prepared in accordance with GAAP, for any completed fiscal years and for any month during the current fiscal year for which the financial statements or reports have been completed. An audited financial/annual report prepared on a consolidated basis shall include a columnar consolidating or combining worksheet that shall be filed with the report and include the following:
(A) Amounts shown on the consolidated audited financial report;
(B) Amounts for each entity stated separately; and
(C) Explanations of consolidating and eliminating entries.
The applicant shall also include any other information required by the commissioner in order to review the current financial condition of the applicant;
(5) A statement describing the business plan including information on staffing levels and activities proposed in this state and nationwide. The plan shall provide details setting forth the applicant's capability for providing a sufficient number of experienced and qualified personnel in the areas of claims processing, record keeping and underwriting; and
(6) Any other pertinent information required by the commissioner.
(c) An administrator licensed or applying for licensure under this section shall make available for inspection by the commissioner copies of all contracts with insurers or other persons using the services of the administrator.
(d) An administrator licensed or applying for licensure under this section shall produce its accounts, records and files for examination and make its officers available to give information with respect to its affairs as often as reasonably required by the commissioner.
(e) The commissioner may refuse to issue a certificate of authority or license if the commissioner determines that the administrator, or any individual responsible for the conduct of affairs of the administrator, is not competent, trustworthy, financially responsible or of good personal and business reputation or has had an insurance or an administrator certificate of authority or license denied or revoked for cause by any jurisdiction, or if the commissioner determines that any of the grounds set forth in section seventeen of this article exists with respect to the administrator.
(f) A certificate of authority or license issued under this section shall remain valid, unless surrendered, suspended or revoked by the commissioner, for as long as the administrator continues in business in this state and remains in compliance with this article.
(g) An administrator licensed or applying for licensure under this section shall immediately notify the commissioner of any material change in its ownership, control or other fact or circumstance affecting its qualification for a certificate of authority or license in this state.
(h) An administrator licensed or applying for a home state certificate of authority/license that administers or will administer governmental or church self-insured plans in its home state or any other state shall maintain a surety bond for the use and benefit of the home state commissioner and the insurance regulatory authority of any additional state in which the administrator is authorized to conduct business and cover individuals and persons who have remitted premiums or insurance charges or other moneys to the administrator in the course of the administrator's business in the lessor of the following amounts:
(1) One hundred thousand dollars; or
(2) Ten percent of the aggregate total amount of self-funded coverage under church plans or governmental plans handled in the administrator's home state and all additional states in which the administrator is authorized to conduct business.
§33-46-13. Registration requirement.
A person who directly or indirectly underwrites, collects charges or premiums from, or adjusts or settles claims on residents of this state, in connection with life, annuity or accident and sickness coverage provided by a self-funded plan other than a governmental or church plan shall register with the commissioner annually, verifying its status as in this article described.
§33-46-14. Nonresident administrator.

(a) Unless an administrator has obtained a home state license in this state under section twelve of this article, any administrator who performs administrator duties in this state shall obtain a nonresident administrator license in accordance with this section by filing with the commissioner the uniform application, accompanied by a letter of certification. In lieu of requiring an administrator to file a letter of certification with the uniform application, the commissioner may verify the nonresident administrator's home state certificate of authority or license status through an electronic database maintained by the national association of insurance commissioners, its affiliates or subsidiaries.


(b) An administrator is not eligible for a nonresident administrator license under this section if it does not hold a certificate of authority or license as a resident in a home state that has adopted the national association of insurance commissioners' model third party administrator act or a substantially similar law governing administrators.


(c) Except as provided in subsections (b) and (h) of this section, the commissioner shall issue to the administrator a nonresident administrator license promptly upon receipt of a complete application and the application fee.

(d) Unless notified by the commissioner that the commissioner is able to verify the nonresident administrator's home state certificate of authority or license status through an electronic database maintained by the national association of insurance commissioners, its affiliates or subsidiaries, each nonresident administrator shall annually file a statement that its home state administrator certificate of authority or license remains in force and has not been revoked or suspended by its home state during the preceding year.


(e) At the time of filing the statement required under subsection (d) of this section or, if the commissioner has notified the nonresident administrator that the commissioner is able to verify the nonresident administrator's home state certificate of authority or license status through an electronic database, on or before the first day of October, the nonresident administrator shall pay the fee set forth in section fifteen of this article.


(f) An administrator licensed or applying for licensure under this section shall produce its accounts, records and files for examination and make its officers available to give information with respect to its affairs as often as reasonably required by the commissioner.


(g) A nonresident administrator is not required to hold a nonresident administrator license in this state if the administrator's duties in this state are limited to the administration of a group policy or plan of insurance and no more than a total of one hundred lives for all plans reside in this state. This subsection applies only to multistate administrators. The administrator must be licensed in its home state regardless of the number of lives under a group policy or plan.


(h) The commissioner may refuse to issue a nonresident administrator license, or may delay the issuance of a nonresident administrator license, if the commissioner determines that, due to events or information obtained subsequent to the home state's licensure of the administrator, the nonresident administrator cannot satisfy the requirements of this article or that grounds exist for the home state's revocation or suspension of the administrator's home state certificate of authority or license. In that event, the commissioner shall give written notice of its determination to the commissioner of the home state, and the commissioner may delay the issuance of a nonresident administrator license to the nonresident administrator until such time, if at all, that the commissioner determines that the administrator can satisfy the requirements of this article and that no grounds exist for the home state's revocation or suspension of the administrator's home state certificate of authority or license.


§33-46-15. Fees and charges.
Except where it is otherwise specially provided, the commissioner shall assess third-party administrators the following fees: For annual fee for each license, two hundred dollars; for receiving and filing annual reports, one hundred dollars; for filing a certified copy of articles of incorporation, fifty dollars; for filing a copy of its charter, fifty dollars; for filing statements preliminary to admission, one hundred dollars; for filing any additional paper required by law or furnishing copies of the additional paper, one dollar; and for every copy of a report or certificate of condition of administrator to be filed in any other state, twenty-five dollars. The commissioner may by rule set reasonable charges for printed forms for the annual statements required by law. He or she may sell at cost publications purchased by, or printed on behalf of the commissioner. All fees and moneys collected shall be used for the purposes set forth in section thirteen, article three of this chapter.
§33-46-16. Annual report and filing fee.
(a) Each administrator licensed under section twelve of this article shall file an annual report for the preceding calendar year with the commissioner on or before the first day of July of each year or within an extension of time granted by the commissioner for good cause. The annual report shall include an audited financial statement performed by an independent certified public accountant. An audited financial/annual report prepared on a consolidated basis shall include a columnar consolidating or combining worksheet that shall be filed with the report and include the following:
(1) Amounts shown on the consolidated audited financial report;
(2) Amounts for each entity stated separately; and
(3) Explanations of consolidating and eliminating entries.
The report shall be in the form and contain any matters prescribed by the commissioner and shall be verified by at least two officers of the administrator.
(b) The annual report shall include the complete names and addresses of all insurers with which the administrator had agreements during the preceding fiscal year.
(c) At the time of filing its annual report, the administrator shall pay the filing fee provided in section fifteen of this article.

(d) The commissioner shall review the most recently filed annual report of each administrator on or before the first day of September of each year. Upon completion of its review, the commissioner shall either:


(1) Issue a certification to the administrator that the annual report shows that the administrator has a positive net worth as evidenced by audited financial statements and is currently licensed and in good standing, or noting any deficiencies found in that annual report and financial statements; or


(2) Update any electronic database maintained by the national association of insurance commissioners, its affiliates or subsidiaries, indicating the annual report shows that the administrator has a positive net worth as evidenced by audited financial statements and is in compliance with existing law, or noting any deficiencies found in the annual report.


§33-46-17. Grounds for denial, suspension or revocation of license.

(a) The license of an administrator shall be denied, suspended or revoked if the commissioner finds that the administrator:
(1) Is in an unsound financial condition;
(2) Is using methods or practices in the conduct of its business that render its further transaction of business in this state hazardous or injurious to insured persons or the public; or
(3) Has failed to pay any judgment rendered against it in this state within sixty days after the judgment has become final.
(b) The commissioner may deny, suspend or revoke the license of an administrator if the commissioner finds that the administrator:
(1) Has violated any lawful rule or order of the commissioner or any provision of the insurance laws of this state;
(2) Has refused to be examined or to produce its accounts, records and files for examination, or if any individual responsible for the conduct of affairs of the administrator, including members of the board of directors, board of trustees, executive committee or other governing board or committee; the principal officers in the case of a corporation or the partners or members in the case of a partnership, association or limited liability company; any shareholder or member holding directly or indirectly ten percent or more of the voting stock, voting securities or voting interest of the administrator; and any other person who exercises control or influence over the affairs of the administrator; has refused to give information with respect to its affairs; or has refused to perform any other legal obligation as to an examination, when required by the commissioner;
(3) Has, without just cause, refused to pay proper claims or perform services arising under its contracts or has, without just cause, caused covered individuals to accept less than the amount due them or caused covered individuals to employ attorneys or bring suit against the administrator to secure full payment or settlement of their claims;
(4) At any time fails to meet any qualification for which issuance of the license could have been refused had the failure then existed and been known to the commissioner;
(5) Or any of the individuals responsible for the conduct of its affairs, including members of the board of directors, board of trustees, executive committee or other governing board or committee; the principal officers in the case of a corporation or the partners or members in the case of a partnership, association or limited liability company; any shareholder or member holding directly or indirectly ten percent or more of its voting stock, voting securities or voting interest; and any other person who exercises control or influence over its affairs has been convicted of, or has entered a plea of guilty or nolo contendere to, a felony without regard to whether the adjudication was withheld;
(6) Is under suspension or revocation in another state; or
(7) Has failed to timely file its annual report pursuant to section sixteen of this article, if a resident administrator, or its statement and filing fee, as applicable, pursuant to subsections (d) and (e), section fourteen of this article if a nonresident administrator.
(c) The commissioner may, in his or her discretion and without advance notice or hearing, immediately suspend the license of an administrator if the commissioner finds that one or more of the following circumstances exist:
(1) The administrator is insolvent or impaired;
(2) A proceeding for receivership, conservatorship, rehabilitation or other delinquency proceeding regarding the administrator has been commenced in any state; or
(3) The financial condition or business practices of the administrator otherwise pose an imminent threat to the public health, safety or welfare of the residents of this state.
(d) If the commissioner finds that one or more grounds exist for the suspension or revocation of a license issued under this article, in any case except where that action is not mandatory, the commissioner may, in lieu of suspension or revocation, by order require the administrator to pay to the state of West Virginia a penalty in a sum not exceeding ten thousand dollars and upon the failure of the administrator to pay the penalty within thirty days after notice of the penalty, the commissioner may revoke or suspend the license of the administrator.
(e) When any license has been revoked or suspended or renewal of the license refused, the commissioner may reissue, terminate the suspension or renew the license when he or she is satisfied that the conditions causing the revocation, suspension or refusal to renew have ceased to exist and are unlikely to recur.
§33-46-18. Exemption for administrators of public health programs.
Programs supervised by the department of health and human resources, pursuant to chapter nine of this code; the public employees insurance agency, pursuant to articles sixteen and sixteen-c, chapter five of this code; and the department of administration, pursuant to article sixteen-b, chapter five of this code, are exempted from the provisions of this article. Third party administrators who administer the above-referenced programs are exempt from the provisions of this article with respect to these specific programs only.
§33-46-19. Unauthorized business.
The unauthorized conduct of the business of an administrator shall be treated as unauthorized insurance business and shall be subject to the same criminal and civil penalties as provided in article forty-four for violation of the Unauthorized Insurers Act.
§33-46-20. Commissioner authorized to propose rules.
The insurance commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code that are necessary to effectuate this article."
The bill was then ordered to third reading.
S. B. 538, Allowing supplemental assessment of personal property in certain cases; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page four, following line forty-nine, by striking out the remainder of the bill.
And,
By amending the enacting section to read as follows:
"That section five, article three, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows" followed by a colon.
The bill was then ordered to third reading.
S. B. 589, Relating to common interest communities and condominiums; restrictive covenants; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 605, Establishing Community Improvement Act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a two new sections, designated sections eighty-six and eighty-seven; that chapter sixteen of said code be amended by adding thereto a new article, designated article thirteen-e, all to reads as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 24. PLANNING AND ZONING.
Part XXI. Voluntary Proffering.

§8-24-86. Conditions as part of final plat approval.

(a) A zoning ordinance may provide for the voluntary proffering by a landowner as a requirement of final plat approval for a development project.
(b) For purposes of this article, a 'voluntary proffer' is a written offer by a landowner to the planning commission whereby the landowner offers to satisfy certain reasonable conditions as a requirement of the final plat approval for a development project. A voluntary proffer made to a county shall be in lieu of payment of an impact fee as authorized by section four, article twenty, chapter seven of this code.
(c) For purposes of this section, a condition contained in a voluntary proffer is considered reasonable if: (1) The development project results in the need for the conditions; (2) the conditions have a reasonable relation to the development project; and (3) all conditions are in conformity with the comprehensive plan adopted pursuant to this article.
(d) No proffer may be accepted by a county or municipality unless it has approved a list detailing any proposed capital improvements from all areas within the county or municipality, to which the proffer is made, and containing descriptions of any proposed capital improvements, cost estimates, projected time frames for constructing the improvements and proposed or anticipated funding sources: Provided, That the approval of the list does not limit the county or municipality from accepting proffers relating to items not contained on the list. For purposes of this subsection, 'capital improvement' has the same definition as found in section three, article twenty, chapter seven of this code.
(e) If a voluntary proffer includes the dedication of real property or the payment of cash, the proffer shall provide for the alternate disposition of the property or cash payment in the event the property or cash payment is not to be used for the purpose for which it was proffered.
(f) Notwithstanding any provision of this code to the contrary, a municipality may transfer the portion of the proceeds of a voluntary proffer intended by the terms of the proffer to be used by the board of education of a county in which the municipality is located upon the condition that the portion so transferred may only be used by the board for capital improvements.
§8-24-87. Enforcement and guarantees.
(a) The planning commission is vested with all the necessary authority to administer and enforce conditions attached to the final plat approved for a development project, including the authority to: (1) Order in writing of the remedy of any noncompliance with the conditions; (2) bring legal action to insure compliance with the conditions, including injunction, abatement, or other appropriate action or proceeding; and (3) require a guarantee, satisfactory to the planning commission in an amount sufficient for and conditioned upon the construction of any physical improvements required by the conditions, or a contract for the construction of the improvements and the contractor's guarantee, in like amount and so conditioned, which guarantee shall be reduced or released by the planning commission upon the submission of satisfactory evidence that construction of the improvements has been completed in whole or in part.
(b) Failure to meet all conditions attached to the final plat approved for a development project shall constitute cause to deny the issuance of any of the required use, occupancy, or building permits, as may be appropriate.
CHAPTER 16. PUBLIC HEALTH.

ARTICLE 13E. COMMUNITY ENHANCEMENT ACT.
§16-13E-1. Short title.
This article shall be known and may be cited as the 'West Virginia Community Enhancement Act'.
§16-13E-2. Definitions.
For purposes of this article:

(a) 'Assessment bonds' means special obligation bonds or notes issued by a community enhancement district which are payable from the proceeds of assessments.
(b) 'Assessment' means the fee, including interest, paid by the owner of real property located within a community enhancement district to pay for the cost of a project or projects constructed upon or benefitting or protecting such property and administrative expenses related thereto, which fee is in addition to all taxes and other fees levied on the property.
(c) 'Board' means a community enhancement board created pursuant to this article.
(d) 'Code' means the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(e) 'Community enhancement district' or 'district' means a community enhancement district created pursuant to this article.
(f) 'Cost' means the cost of: (1) Construction, reconstruction, renovation and acquisition of all lands, structures, real or personal property, rights, rights-of-way, franchises, easements and interests acquired or to be acquired by the district; (2) all machinery and equipment, including machinery and equipment needed to expand or enhance county or city services to the district; (3) financing charges and interest prior to and during construction and, if deemed advisable by the district or governing body, for a limited period after completion of the construction; (4) interest and reserves for principal and interest, including costs of municipal bond insurance and any other type of financial guaranty; (5) costs of issuance in connection with the issuance of assessment bonds; (6) the design of extensions, enlargements, additions and improvements to the facilities of any district; (7) architectural, engineering, financial and legal services; (8) plans, specifications, studies, surveys and estimates of costs and revenues; (9) administrative expenses necessary or incident to determining to proceed with any project; and (10) other expenses as may be necessary or incident to the construction, acquisition and financing of a project.
(g) 'County commission' means the governing body of a county as defined in section one, article one, chapter seven of this code.
(h) 'Governing body' means, in the case of a county, the county commission and in the case of a municipality, the mayor and council together, the council or the board of directors, as charged with the responsibility of enacting ordinances and determining the public policy of such municipality.
(i) 'Governmental agency' means the state government or any agency, department, division or unit thereof; counties; municipalities; any watershed enhancement districts, soil conservation districts, sanitary districts, public service districts, drainage districts, school districts, urban renewal authorities or regional governmental authorities established pursuant to this code.
(j) 'Municipality' means a municipality as defined in section two, article one, chapter eight of this code.
(k) 'Person' means an individual, firm, partnership, corporation, voluntary association or any other type of entity.
(l) 'Project' means the design, construction, reconstruction, establishment, acquisition, improvement, renovation, extension, enlargement, equipping, maintenance, repair (including replacements) and start up operation of water transmission and distribution facilities, sewage collection and transmission facilities, stormwater systems, police stations, fire stations, libraries, museums, schools, other public buildings, hospitals, piers, docks, terminals, drainage systems, culverts, streets, roads, bridges (including approaches, causeways, viaducts, underpasses and connecting roadways), motor vehicle parking facilities (including parking lots, buildings, ramps, curb-line parking, meters and other facilities deemed necessary, appropriate, useful, convenient or incidental to the regulation, control and parking of motor vehicles), public transportation, public recreation centers, public recreation parks, swimming pools, tennis courts, golf courses, equine facilities, motor vehicle competition and recreational facilities, flood protection or relief projects, or the grading, regrading, paving, repaving, surfacing, resurfacing, curbing, recurbing, widening, lighting or otherwise improving any street, avenue, road, highway, alley or way, or the building or renewing of sidewalks and flood protection; and the terms shall mean and include any project as a whole, and all integral parts thereof, including all necessary, appropriate, useful, convenient or incidental appurtenances and equipment in connection with any one or more of the above.
§16-13E-3. Power and authority of counties and municipalities to create and establish community enhancement districts.

(a) Every county and municipality is hereby empowered and authorized, in addition to any other rights, powers and authority conferred upon it elsewhere in this code, to create, modify and expand community enhancement districts in the manner hereinafter set forth in such county or municipality and to assist in the development, construction, acquisition, extension or improvement of a project or projects located in such county or municipality.
(b) Unless agreed to by a municipality, the power and authority hereby conferred on a county shall not extend into territory within the boundaries of any municipality: Provided, That notwithstanding any provision in this code to the contrary, the power and authority hereby conferred on counties may extend within the territory of a public service district created under section two, article thirteen-a of this chapter.
§16-13E-4. Petition for creation or expansion of community enhancement district; petition requirements.

(a) The owners of at least sixty-one percent of the real property, determined by acreage, located within the boundaries of the area described in the petition, by metes and bounds or otherwise in a manner sufficient to describe the area, may petition a governing body to create or expand a community enhancement district.
(b) The petition for the creation or expansion of a community enhancement district shall include, where applicable, the following:
(1) The proposed name and proposed boundaries of such district and a list of the names and addresses of all owners of real property within the proposed district;
(2) A detailed project description;
(3) A map showing the proposed project, including all proposed improvements;
(4) A list of estimated project costs and the preliminary plans and specifications for such improvements, if available;
(5) A list of nonproject costs and how they will be financed;
(6) A consultant study outlining the projected assessments, setting forth the methodology for determining the assessments and the methodology for allocating portions of an initial assessment against a parcel expected to be subdivided in the future to the various lots into which the parcel will be subdivided and demonstrating that such assessments will adequately cover any debt service on bonds issued to finance the project and ongoing administrative costs;
(7) A development schedule;
(8) A list of recommended members for the board;
(9) If the project includes water, wastewater or sewer improvements, written evidence from the utility or utilities that will provide service to the district that said utility or utilities:
(A) Currently has adequate capacity to provide service without significant upgrades or modifications to its treatment, storage or source of supply facilities;
(B) Will review and approve all plans and specifications for the improvements to determine that the improvements conform to the utility's reasonable requirements and, if the improvement consists of water transmission or distribution facilities, that the improvements provide for adequate fire protection for the district; and
(C) If built in conformance with said plans and specifications, will accept the improvements following their completion, unless such projects are to be owned by the district;
(10) If the project includes improvements other than as set forth in subdivision (9) of this subsection that will be transferred to another governmental agency, written evidence that such agency will accept such transfer, unless such projects are to be owned by the district;
(11) The benefits that can be expected from the creation of the district and the project; and
(12) A certification from each owner of real property within the proposed district who joins in the petition that he or she is granting an assessment against his or her property in such an amount as to pay for the costs of the project and granting a lien for said amount upon said property enforceable in accordance with the provision of this article.
(c) After reviewing the petition presented pursuant to this section, the governing body may by order or ordinance determine the necessity and economic feasibility of creating a community enhancement district and developing, constructing, acquiring, improving or extending a project therein. If the governing body determines that the creation of a community enhancement district and construction of the project is necessary and economically feasible, it shall set a date for the public meeting required under section five of this article and shall cause the petition to be filed with the clerk of the county commission or the clerk or recorder of the municipality, as the case may be, and be made available for inspection by interested persons before the meeting.
(d) Notwithstanding any other provision of this article to the contrary, nothing in this article shall modify:
(1) The jurisdiction of the public service commission to determine the convenience and necessity of the construction of utility facilities, to resolve disputes between utilities relating to which utility should provide service to a district or otherwise to regulate the orderly development of utility infrastructure in the state; or
(2) The authority of the infrastructure and jobs development council as to the funding of utility facilities to the extent that loans, loan guarantees, grants or other funding assistance from a state infrastructure agency are involved.
§16-13E-5. Notice to property owners before creation or expansion of community enhancement district and construction or acquisition of project; form of notice; affidavit of publication.

(a) Before the adoption or enactment of an order or ordinance creating a community enhancement district, the governing body shall cause notice to be given to the owners of real property located within the proposed community enhancement district that such ordinance or order will be considered for adoption or enactment, as the case may be, at a public meeting of the governing body at a date, time and place named in the notice and that all persons at that meeting, or any adjournment thereof, shall be given an opportunity to protest or be heard concerning the adoption, enactment or rejection of the order or ordinance. At or after the meeting the governing body may amend, revise or otherwise modify the information in the petition for the community enhancement district or project as it may deem appropriate after taking into account any comments received at such meeting.
(b) The notice required in this section shall be published at least thirty days prior to the date of the meeting as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of this code and the publication area for such publication shall be the county or municipality in which the proposed community enhancement district is located. The notice shall be in the form of, or substantially in the form of, the following notice:
'NOTICE TO ALL PERSONS OWNING PROPERTY LOCATED WITHIN ................... (here describe the boundaries of the proposed community enhancement district) IN THE ...................... (county or municipality) OF .............. (name of county or municipality):
A petition has been presented to the ............................ (county commission, city council or other governing body) of the ................ (county or municipality) of .............. (name of county or municipality) requesting establishment of a community enhancement district under chapter sixteen, article thirteen-b of the code of West Virginia to ................ (here describe the project both within and outside of the proposed community enhancement district to be financed, developed, constructed, acquired, extended or improved, or the lots or parcels of land which may be protected, in the case of a flood relief project) in ................. (name of county or municipality) by ............... (here provide general description of the project) as the ................ (county commission, city council or other governing body) may deem proper and to assess the total cost (or, if the assessments are only necessary to pay for part of the total cost, the approximate percentage of the total cost) of such improvement on the property. A copy of the petition is available in the office of the .......... (name of clerk or recorder) for review by the public during regular office hours.
The petition to create a community enhancement district and to make such improvements, and estimates therefor, will be considered by the ................... (county commission, city council or other governing body) at a public meeting to be held on the ....... day of ................, .................., at .......m. at ............................. Any owner of property whose property may be affected by the creation of the above-described community enhancement district, and any person whose property is not located within said community enhancement district but wishes his or her property to be included, will be given an opportunity, under oath, to protest or be heard at said meeting or any adjournment thereof:
............................ (name of clerk or recorder)
.................................. (official position).'
(c) An affidavit of publication of the notice made by the newspaper publisher, or a person authorized to do so on behalf of such publisher, and a copy of the notice shall be made part of the minutes of the governing body and spread on its records of the meeting described in the notice. The service of said notice upon all persons owning any interest in any property located within the proposed community enhancement district shall conclusively be deemed to have been given upon the completion of such newspaper publication.
(d) The petitioners shall bear the expense of publication of the notice and the meeting as requested by subsection (e) of this section.
(e) After the public meeting and before the governing body may adopt or enact an order or ordinance creating a community enhancement district, the governing body shall mail a true copy of the proposed order or ordinance creating the community enhancement district to the owners of real property in said district. Unless waived in writing, any petitioning owner of real property shall have thirty days from mailing of the proposed ordinance or order in which to withdraw his or her signature from the petition in writing prior to the vote of the governing body on such ordinance or order. If any signatures on the petition are so withdrawn, the governing body may pass the proposed ordinance or order only upon certification by the petitioners that the petition otherwise continues to meet the requirements of this article. If all petitioning owners of real property waive the right to withdraw their signatures from the petition, then the governing body may immediately adopt or enact the ordinance or order.
§16-13E-6. Creation of community enhancement district; community enhancement district to be a public corporation and political subdivision; powers thereof; community enhancement boards.

(a) Each community enhancement district shall be created by adoption or enactment of an order or ordinance.
(b) From and after the date of the adoption or enactment of the order or ordinance creating a community enhancement district, it shall thereafter be a public corporation and political subdivision of this state, but without any power to levy or collect ad valorem taxes. Each community enhancement district is hereby empowered and authorized, in addition to any other rights, powers and authorities conferred upon it in this article or elsewhere in this code, to:
(1) Acquire, own and hold, in its corporate name, by purchase, lease, right of eminent domain, gift or otherwise, such property, both real and personal and other interests in real estate, or any other property, whether tangible or intangible, as may be necessary or incident to the planning, financing, development, construction, acquisition, extension, improvement and completion of a project;
(2) Design, plan, finance, develop, construct, acquire, extend, improve and complete one or more projects and assess the cost of all or any portion of a project on real property located within the community enhancement district;
(3) Sue or be sued;
(4) Establish a bank account or accounts in its name;
(5) Enter into agreements or other transactions with any person or governmental agency necessary or incident to the development, planning, construction, acquisition or improvement of a project or for the operation, maintenance or disposition of a project or for any other services required by a project;
(6) Annually, on or before the seventh day of June, certify to the sheriff of the county in which the property is located the assessments granted against all property in the district for inclusion in the tax ticket;
(7) Expend funds to acquire, or construct part of a project on property located outside of a community enhancement district, and for any work undertaken thereon, as may be necessary or incident to the completion of a project;
(8) Enter into agreements with one or more counties, municipalities, public service districts or community enhancement districts to plan, develop, construct, acquire or improve a project jointly;
(9) Accept appropriations, gifts, grants, bequests and devises and use or dispose of the same to carry out its corporate purpose;
(10) Make and execute contracts, releases, assignments, compromises and other instruments necessary or convenient for the exercise of its powers, or to carry out its corporate purpose;
(11) Have a seal and alter the same;
(12) Raise funds by the issuance and sale of assessment bonds;
(13) Obtain options to acquire real property, or any interest therein, by purchase, lease or otherwise, which is found by the board to be suitable as a site, or part of a site, for the construction of a project;
(14) Pledge funds generated by assessments in a district or proceeds from the sale of assessment bonds payment of debt service on tax increment financing obligations issued under article eleven-b, chapter seven of this code, for the period of time determined by the community enhancement board; and
(15) Take any and all other actions consistent with the purpose of this article and not in violation of the constitution of this state as may be necessary or incident to the construction and completion of a project.
(c) Notwithstanding the powers granted to community enhancement districts in subsection (b) of this section or as otherwise provided in this code, no community enhancement district may expend funds to assist any utility to upgrade, improve, modify, repair or replace the utility's existing storage, treatment or source of supply facilities, whether such existing facilities are located within or outside of the district.
(d) The powers of each community enhancement district shall be vested in and exercised by a community enhancement board which shall be composed of five members, four of whom shall be appointed by the governing body of the county or municipality in which the community enhancement district is located and one of whom shall be the sheriff or his or her designee of the county or the treasurer or his or her designee of the municipality (or such other person serving in an equivalent capacity if there is no treasurer), as the case may be, in which the community enhancement district is located. At least three members of the board shall be residents of the assessment district: Provided, That should less than three persons reside within the boundaries of the community enhancement district, then at least three members of the board shall be residents of the county or municipality, as the case may be: Provided, however, That if no persons reside within the boundaries of the community enhancement district then at least three members must be approved by the owner or owners of the land. No more than three initial members of the board may be from the same political party.
(e) The four members appointed by the governing body shall be appointed for overlapping terms of four years each and thereafter until their respective successors have been appointed and have qualified. For the purpose of initial appointments, one member shall be appointed for a term of four years; one member shall be appointed for a term of three years; one member shall be appointed for a term of two years; and one member shall be appointed for a term of one year. Members may be reappointed for any number of terms. Before entering upon the performance of his or her duties, each member shall take and subscribe to the oath required by section five, article IV of the constitution of this state. Vacancies shall be filled by appointment by the governing body of the county or municipality creating the assessment district for the unexpired term of the member whose office shall be vacant and such appointment shall be made within thirty days of the occurrence of such vacancy. Any such member may be removed by the governing body which appointed such member in case of incompetency, neglect of duty, gross immorality or malfeasance in office. Members shall be entitled no more than fifty dollars per meeting and reasonable expenses associated with their services.
(f) The board shall organize within thirty days following the first appointments and annually thereafter at its first meeting after the first day of January of each year by selecting one of its members to serve as chairman, one to serve as treasurer and one to serve as secretary. The secretary or his or her designee shall keep a record of all proceedings of the board which shall be available for inspection as other public records, and the treasurer or his or her designee shall maintain records of all financial matters relating to the community enhancement district, which shall also be available for inspection as other public records. Duplicate records shall be filed with the clerk or recorder, as the case may be, of the county or municipality which created the community enhancement district and shall include the minutes of all board meetings. The secretary and treasurer shall perform such other duties pertaining to the affairs of the community enhancement district as shall be prescribed by the board.
(g) The members of the board, and the chairman, secretary and treasurer thereof, shall make available to the governing body responsible for appointing the board, at all times, all of its books and records pertaining to the community enhancement district's operation, finances and affairs for inspection and audit. The board shall meet at least semiannually.
(h) A majority of the members of the board constitutes a quorum and meetings shall be held at the call of the chairman.
(i) Staff, office facilities and costs of operation of the board may be provided by the county or municipality which created the community enhancement district or by contract and said costs of operations shall be funded from assessments collected within the district.
(j) The chairman shall preside at all meetings of the board and shall vote as any other members of the board, but if he or she should be absent from any meeting the remaining members may select a temporary chairman, and if the member selected as chairman resigns as such or ceases for any reason to be a member of the board, the board shall select one of its members as chairman to serve until the next annual organizational meeting.
(k) The board shall, by resolution, determine its own rules of procedure, fix the time and place of its meetings and the manner in which special meetings may be called. The members of the board shall not be personally liable or responsible for any obligations of the assessment district or the board but are answerable only for willful misconduct in the performance of their duties.
(l) The official name of a community enhancement district created under the provisions of this article may contain the name of the county or municipality, as the case may be, in which it is located.
(m) Notwithstanding any provision in this code to the contrary, the power and authority hereby conferred on community enhancement districts may extend within the territory of a public service district created under section two, article thirteen-a of this chapter.
§16-13E-7. Provisions for construction of a project.
(a) After the creation of a community enhancement district and the appointment of the board thereof, the board shall provide by resolution for the construction of the project and shall also provide in the same or subsequent resolutions for the supervision of such work by a professional engineer, governmental agency or any other person designated by the board. The board may provide for the construction of the project by one of the two following methods or any combination thereof:
(1) If there exists a governmental agency with the experience, knowledge and authority to construct the project, the board may elect to enter into a contract with such agency for the construction of all or part of the project or for any other service necessary or incident to the construction of the project, in which case such governmental agency shall be responsible for entering into contracts, subject to the board's approval, with such other persons as may be necessary or incident to the construction of the project; or
(2) The board may elect to enter into one or more contracts with such contractors and other persons as may be necessary or incident to the construction of the project, in which case it shall solicit competitive bids. All contracts for work on any project, the expense of which will exceed fifty thousand dollars, shall be awarded to the lowest qualified responsible bidder who shall furnish a sufficient performance and payment bond. The board may reject any and all bids and if it rejects all bids, notices shall be published as originally required before any other bids may be received. The board may let portions of the work necessary to complete a project under different contracts.
(b) The resolution described in subsection (a) of this section shall also provide for payment of the cost of the project.
(c) Prior to the construction of the project, the board shall obtain such permits and licenses required by law for the construction and operation of the project.
(d) Prior to bidding a water, wastewater or storm water component of a project, the board shall submit the final plans and specifications to the utility or utilities who will provide the water, wastewater or storm water service for review and written approval.
§16-13E-8. Notice to property owners of assessments; correcting and laying assessments; report on project completion; credits.

(a) Prior to the issuance of assessment bonds or pledging any amounts to payment of tax increment financing obligation debt service, the board shall cause a report to be prepared describing each lot or parcel of land located within the community enhancement district and setting forth the total cost of the project based on the contract with the governmental agency, the accepted bid or bids, or a cost estimate certified by a professional engineer, and all other costs incurred prior to the commencement of construction and the future administrative costs, and the respective amounts chargeable upon each lot or parcel of land and the proper amount to be assessed against the respective lots or parcels of land with a description of the lots and parcels of land as to ownership and location. If two or more different kinds of projects are involved, the report shall set forth the portion of the assessment attributable to each respective project. The board shall thereupon give notice to the owners of real property to be assessed that on or after a date specified in the notice an assessment will be deemed granted against the property. The notice shall state that the owner of assessed property, or other interested party, may on said date appear before the board to move the revision or correction of the proposed assessment and shall show the total cost of the project, whether the assessments will pay for all or part of the total cost of the project and the lots or parcels of property to be assessed and the respective amounts to be assessed against such lots or parcels, with a description of the respective lots and parcels of land as to ownership and location. The notice shall also be published as a Class II-0 legal advertisement in compliance with the provisions of article three, chapter fifty-nine of the code, and the publication area for such publication is the assessment district. On or after the date so advertised, the board may revise, amend, correct and verify the report and proceed by resolution to establish the assessments as corrected and verified and shall certify the same to the governing body which created the district.
(b) Upon completion of a project, the board shall prepare a final report certifying the completion of the project and showing the total cost of the project and whether the cost is greater or less than the cost originally estimated. If the total cost of the project is less or greater than the cost shown in the report prepared prior to construction, the board may revise the assessment charged on each lot or parcel of land pursuant to subsection (a) of this section to reflect the total cost of the project as completed, and in so doing shall, in the case of an assessment increase only, follow the same procedure with regard to notice and providing each owner of assessed property the right to appear before the board to move for the revision or correction of such proposed reassessment as required for the original assessment. If an assessment is decreased, the board shall, by resolution and written notice to the sheriff of the county in which the community enhancement district is located, cause the next installment or installments of assessments then due and payable by each affected property owner to be reduced pro rata, and shall provide written notice to such property owners of the amount of such decrease by the deposit of such notice in the United States mail, postage prepaid.
(c) The value of the projects financed with the assessments shall be treated as a credit toward any impact fees related to the service or services provided levied under chapter seven, article twenty of this code.
§16-13E-9. Exemption of public property from assessments.
No lots or parcels of land owned or controlled by the United States, this state, any municipality, county, board of education or other public body shall be subject to any assessments.
§16-13E-10. Assessment bonds; sinking fund for assessment bonds;
tax exemption.
(a) For constructing or acquiring any project authorized by this article, and also for reimbursing or paying the costs and expenses of creating the district, the board of any such district is hereby authorized to borrow money, from time to time, and in evidence thereof issue the bonds of such district, payable from the proceeds of the assessments granted under this article. Such bonds shall be issued in one or more series, may bear such date or dates, may mature at such time or times not exceeding thirty-five years from their respective dates, shall be fully registered as to principal and interest in the name of the bondholder with a certificate of authentication attached thereto, may bear interest at such rate or rates not exceeding eighteen percent per annum, may be payable at such times, may be executed in such manner, may be payable at such place or places, may be subject to such terms of redemption with or without premium, may be declared or become due before maturity date thereof, may be authenticated in any manner, and, upon compliance of such conditions, may contain such terms and covenants as provided by the resolution or resolutions of the board. All such bonds shall be, and shall be treated as, negotiable instruments for all purposes. Bonds bearing the signatures of officers and offices on the dates of the signing thereof shall be valid and binding for all purposes notwithstanding that before the delivery thereof any or all such persons whose signatures appear thereon shall have ceased to be such officers. Notwithstanding the requirements or provisions of any other law, any such bonds may be negotiated or sold in such manner at such time or times and at such prices or prices as is found by the board to be most advantageous. Any resolution or resolutions providing for the issuance of such bonds may contain covenants and restrictions upon the issuance of additional bonds thereafter as may be deemed necessary or advisable for the assurance of the payment of the bonds thereby authorized.
(b) At or before the time of issuance of any bonds under this article, the board shall by resolution provide for the creation of a sinking fund and for payments in succession fund from the assessments granted pursuant to this article in such amount as shall be sufficient to pay the accruing interest and retire the bonds at or before the time each will respectively become due and to establish or maintain reserves therefor. All sums which are or should be, in accordance with such provisions, paid into such sinking fund shall be used solely for payment of interest and for the retirement of such bonds at or prior to maturity as may be provided or required by such resolution.
(c) The property, including leased property, of the community enhancement district and bonds and any income or interest thereon issued by the community enhancement district are exempt from taxation by the state of West Virginia and other taxing bodies of the state.
§16-13E-11. Indebtedness of assessment district.
No constitutional or statutory limitation with respect to the nature or amount of or rate of interest on indebtedness which may be incurred by municipalities, counties or other public or governmental bodies shall apply to the indebtedness of a community enhancement district. No indebtedness of any nature of a community enhancement district shall constitute an indebtedness of any municipality or county creating and establishing such community enhancement district or a charge against any property of said municipalities or counties but shall be paid solely from the assessments which the community enhancement district is authorized to impose on the owners of the property within the district by this article. No indebtedness or obligation incurred by any community enhancement district shall give any right against any member of the governing body of any municipality or any member of the county commission of any county or any member of the community enhancement board of any community enhancement district.
§16-13E-12. Payment of assessments to sheriff; report to community enhancement district; collection of delinquent assessments.

The assessments imposed pursuant to this article will not be considered to be ad valorem taxes or the equivalent of ad valorem taxes under any other provision of this code: Provided, That for the exclusive purposes of collection of the assessments imposed under section eight of this article and enforcement of the assessment liens created by section thirteen of this article, the provisions of chapter eleven-a of this code shall apply as if the assessments were taxes as that term is defined in section one, article one of that chapter. The sheriff shall promptly deposit all assessments upon receipt thereof in a segregated account established by the sheriff for such purpose and shall maintain a record of the assessments so received. Each month, the sheriff shall pay all moneys collected for the community enhancement district into the district treasury or if the sheriff consents to a trustee for the benefit of bondholders if assessment bonds are issued by the community enhancement district. Payments to the community enhancement district shall be made in the time set forth in section fifteen, article one, chapter eleven-a of this code and the sheriff shall be entitled to take a commission for collection of the assessments on behalf of the community enhancement district, as provided in section seventeen of said article. For each tax year, the sheriff will prepare and deliver to the board of each community enhancement district located in the county, a statement setting forth the aggregate amount of assessments received for such district and the name of any property owner who failed to pay the assessments due and payable for the period in question. This report shall be due on or before the first day of August of the following year. The sheriff is authorized to collect delinquent assessments and enforce the liens created in section thirteen of this article as if those assessments were delinquent real property taxes and the liens are tax liens using the enforcement tools provided in articles two and three, chapter eleven-a of this code.
§16-13E-13. Liens; recording notice of liens; priority; release of lien; notice to future property owners.

(a) With the exception of property exempt from assessment pursuant to section nine of this article, there shall be a lien on all real property located within the community enhancement district for the assessments imposed by section eight of this article, which lien shall attach on the date specified in the notice to property owners. A notice of the liens of said assessments referring to the assessing resolution and setting forth a list of the property assessed, described respectively as to amounts of assessment, ownership and location of the property, shall be certified, by the chairman and secretary of the board, to the clerk of the county commission of the county wherein the project is located. The county clerk shall record the notice of such lien in the appropriate trust deed book or other appropriate county lien book and index the same in the name of each owner of property assessed. From the date of an assessment, the trustee, for the benefit of bondholders if assessment bonds are issued by the community enhancement district, and/or the district shall have such lien and shall be entitled to enforce the same in its, his or their name to the extent of the amount, including principal and interest and any penalty due for any failure to pay an installment when due, of such assessments and against the property to which the assessment applies, as to any assessment not paid as and when due. The trustee or the district, as an alternative to the enforcement provision set forth in section twelve of this article, are granted all legal remedies as are necessary to collect the assessment. Such assessments shall be and constitute liens for the benefit of the community enhancement district or of the trustee, for the benefit of bondholders if assessment bonds are issued by the community enhancement district, upon the respective lots and parcels of land assessed and shall have priority over all other liens except those for land taxes due the state, county and municipality and except any liens for preexisting special assessments provided under this code. If any assessment is revised in accordance with this article, the lien created by this section shall extend to the assessment so revised and shall have the same priority as the priority of the lien created upon the laying of the original assessment. Such assessments and interest thereon shall be paid by the owners of the property assessed as and when the installments are due. Following the payment in full of any assessment bonds including any interest thereon, the chairman and secretary of the board shall execute a release of all liens and shall certify the same to county clerk for recordation.
(b) Following the grant of an assessment on property as provided in this article, the seller of such property shall provide reasonable disclosure to the buyer in the real estate contract that an assessment has been granted on the property, the amount of the assessment and the duration of the assessment.
§16-13E-14. Liberal construction.
This article being necessary for the public health, safety and welfare and economic development, it shall be liberally construed to effectuate the purpose hereof."
The bill was then ordered to third reading.
Com. Sub. for S. B. 611, Defining podiatric medical assistants; other provisions; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page seven, section six, following line sixty-one, by inserting a new subsection (e), to read as follows:
"(e) The board shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine of this code setting forth fees for licenses and permits and the renewals of licenses and permits."
And,
On page eleven, section ten, line two, by striking out the words "or denies an application for a temporary permit".
The bill was then ordered to third reading.
S. B. 627, Renaming Guthrie Center Gus R. Douglass Agricultural Center; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 634, Defining crow as game-bird,; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 635, Clarifying foster care services in relation to behavioral health; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 649, Relating to use of waste tire remediation funds; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 655, Creating public utilities tax loss restoration fund; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page four, section twenty-seven, line seventeen, following the word "Provided" and the comma, by inserting the following:
"That the calculation to the adjustments shall exclude loss in tax revenue attributed to the school current levy, as set forth in section six-c, article eight, chapter eleven of this code: Provided, however" and a comma.
The bill was then ordered to third reading.
S. B. 657, Relating to capitol company act; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, following the enacting clause, by striking out the remainder of the bill, and inserting in lieu thereof the following:
"That section eight, article one, chapter five-e of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 1. WEST VIRGINIA CAPITAL COMPANY ACT.
§5E-1-8. Tax credits.
(a) The total amount of tax credits authorized for a single qualified company may not exceed two million dollars. Capitalization of the company may be increased pursuant to rule of the authority.
(b)(1) The total credits authorized by the authority for all companies may not exceed a total of ten million dollars each fiscal year: Provided, That for the fiscal year beginning on the first day of July, one thousand nine hundred ninety-nine, the total credits authorized for all companies may not exceed a total of six million dollars: Provided, however, That for the fiscal year beginning on the first day of July, two thousand, the total credits authorized for all companies may not exceed a total of four million dollars: Provided further, That for the fiscal year beginning on the first day of July, two thousand one, the total credits authorized for all companies may not exceed a total of four million dollars: And provided further, That for the fiscal year beginning on the first day of July, two thousand two, the total credits authorized for all companies may not exceed a total of three million dollars: And provided further, That for the fiscal year beginning on the first day of July, two thousand three, the total credits authorized for all companies may not exceed a total of three million dollars: And provided further, That the capital base of any qualified company shall be invested in accordance with the provisions of this article. The authority shall allocate these credits to qualified companies in the order that the companies are qualified.
(2) Not more than two million dollars of the credits allowed under subdivision (1) of this subsection may be allocated by the authority during each fiscal year to one or more small business investment companies described in this subdivision. The remainder of the tax credits allowed during the fiscal year shall be allocated by the authority under the provisions of section four, article two of this chapter. The portion of the tax credits allowed for small business investment companies described in this subdivision shall be allowed only if allocated by the authority during the first thirty days of the fiscal year, and may only be allocated to companies that: (A) Were organized on or after the first day of January, one thousand nine hundred ninety-nine; (B) are licensed by the small business administration as a small business investment company under the small business investment act; and (C) have certified in writing to the authority on the application for credits under this act that the company will diligently seek to obtain and thereafter diligently seek to invest leverage available to the small business investment companies under the small business investment act. These credits shall be allocated by the authority in the order that the companies are qualified. Any credits which have not been allocated to qualified companies meeting the requirements of this subdivision relating to small business investment companies during the first thirty days of the fiscal year shall be made available and allocated by the authority under the provisions of section four, article two of this chapter.
(c) Any investor, including an individual, partnership, limited liability company, corporation or other entity who makes a capital investment in a qualified West Virginia capital company, is entitled to a tax credit equal to fifty percent of the investment, except as otherwise provided in this section or in this article. The credit allowed by this article shall be taken after all other credits allowed by chapter eleven of this code. It shall be taken against the same taxes and in the same order as set forth in subsections (c) through (i), inclusive, section five, article thirteen-c, chapter eleven of this code. The credit for investments by a partnership, limited liability company, a corporation electing to be treated as a subchapter S corporation or any other entity which is treated as a pass through entity under federal and state income tax laws may be divided pursuant to election of the entity's partners, members, shareholders or owners.
(d) The tax credit allowed under this section is to be credited against the taxpayer's tax liability for the taxable year in which the investment in a qualified West Virginia capital company is made. If the amount of the tax credit exceeds the taxpayer's tax liability for the taxable year, the amount of the credit which exceeds the tax liability for the taxable year may be carried to succeeding taxable years until used in full, or until forfeited: Provided, That: (i) Tax credits may not be carried forward beyond fifteen years; and (ii) tax credits may not be carried back to prior taxable years. Any tax credit remaining after the fifteenth taxable year is forfeited.
(e) The tax credit provided for in this section is available only to those taxpayers whose investment in a qualified West Virginia capital company occurs after the first day of July, one thousand nine hundred eighty-six.
(f) The tax credit allowed under this section may not be used against any liability the taxpayer may have for interest, penalties or additions to tax.
(g) Notwithstanding any provision in this code to the contrary, the tax commissioner shall publish in the state register the name and address of every taxpayer and the amount, by category, of any credit asserted under this article. The categories by dollar amount of credit received are as follows:
(1) More than $1.00, but not more than $50,000;
(2) More than $50,000, but not more than $100,000;
(3) More than $100,000, but not more than $250,000;
(4) More than $250,000, but not more than $500,000;
(5) More than $500,000, but not more than $1,000,000; and
(6) More than $1,000,000."
The bill was then ordered to third reading.
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred Com. Sub. for S. B. 594, third reading, Special Calendar, to the House Calendar; Com. Sub. for S. B. 433, second reading, Special Calendar, to the House Calendar; Com. Sub for S. B. 443, Com. Sub for 535, S. B. 558, S. B. 658, S. B. 659, S. B. 660, H. B. 3211 and H. B. 3212, second reading, House Calendar, to the Special Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Hrutkay had requested S. B. 206 be removed from the Consent Calendar and be placed upon the Special Calendar.
The Clerk announced that, pursuant to House Rule 70a, Delegate Trump had requested S. B. 505, S. B. 634 and S. B. 655 be removed from the Consent Calendar and each be placed upon the Special Calendar.
Special Calendar

Unfinished Business

H. C. R. 38, Requesting a study on the impact of the state medicaid agency furnishing all recipients of services or assistance under the medicaid program a detailed periodic statement; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 76, Requesting a study on Medicaid Aged and Disabled Waivers; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 78, Renaming the street located on Route 52 in Mingo County, the "Raymond John Toler Drive"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 84, Calling upon the United States government to provide funding assistance for the unfunded mandates it places upon the states; coming up in regular order, as unfinished business, was, on motion of Delegate Staton, laid over for one day.
Third Reading

Com. Sub. for S. B. 56, Prohibiting certain insurers to require persons under contract to use mail-order pharmacy; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 430), and there were--yeas 96, nays 3, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Louisos and Walters.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 56) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 76, Increasing amount from consolidated fund as loan to economic development authority; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 431), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Carmichael.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 76) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 76 - "A Bill to repeal section twelve-a, article one, chapter twelve of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to repeal sections ten, fifteen, nineteen and twenty-one, article six of said chapter; to amend and reenact sections two, seven, twelve and thirteen, article one of said chapter; to amend and reenact sections one, two and three, article two of said chapter; to amend and reenact sections one and one-a, article three of said chapter; to amend and reenact sections three, four and six, article three-a of said chapter; to amend and reenact sections one and five, article five of said chapter; to amend and reenact sections one-a, two, five, eight, nine- e, twelve, thirteen and sixteen, article six of said chapter; to further amend said chapter by adding thereto a new article, designated article six-c; and to amend and reenact section twenty, article fifteen, chapter thirty-one of said code, all relating generally to the management and investment of moneys by the state; designating financial institutions as depositories for state funds; adding state and federal savings and loan associations as candidates as depository banks; removing requirement the state treasurer retain and invest money for current operation purposes; providing types of accounts; requiring approval of state treasurer to open account or process transaction through financial institution and exceptions; adding provision that the requirement that state funds only be deposited in designated depositories meeting collateral requirements does not apply to bond proceeds from the sale of general obligation bonds and bonds issued by various state entities; requiring contracts or agreements for banking goods or services with exceptions for trust and investment accounts for various bond issues; directing the treasurer to invest moneys; disposition of earnings on investments; expressly allowing payments to the state by electronic funds transfer; distribution of deposit reports; deleting collections by the chief inspector of public offices as the position no longer exists; requiring spending units to comply with procedures for receipt and disbursement of moneys not due the state; requiring disposition of federal funds transferred from unclaimed property division; extending the time for stale checks to become unclaimed property from six months to a maximum of one year; requiring competitive bids for the selection of vendors to implement electronic capabilities of offices of state treasurer and auditor; specifying legal effect of documents and electronic signatures and adding the comptroller; administration of the West Virginia check card; allowing the state treasurer to authorize spending units to assess and collect fees for electronic commerce receipts; adding cash to the definition of securities; authorizing the treasurer to create any accounts needed for the deposit of cash, to invest the money and to prescribe forms and procedures for receipt and disbursements of the moneys; transfer of management of consolidated fund from investment management board to the state treasurer; amending definition of consolidated fund; investment of funds of political subdivisions; transferring rights, duties and responsibilities for the consolidated fund and certain loans made from consolidated fund; creating the consolidated fund investment act; stating purposes and findings of the act; specifying the authority of the treasurer for investments and restrictions on investments; continuing the consolidated fund and vesting it in the state treasurer on the first day of July, two thousand three; transferring the management, control and administration of the consolidated fund to the state treasurer from the investment management board; requiring the state treasurer to retain an internal auditor; requiring the treasurer to annually develop, adopt and review asset allocation plans and investment policies; specifying permitted investments; authorizing loans for industrial development and investment in the West Virginia enterprise capital fund, LLC; increasing the amount of loans available to the economic development authority to one hundred seventy-five million dollars; exempting West Virginia enterprise capital fund, LLC, from taxes or fees; handling of securities; establishing the uniform prudent investor act as the standard of care; requiring the investment management board to transfer the cash, securities and other investments of the consolidated fund to the treasurer on the first day of July, two thousand three; requiring audits, financial statements and reports; specifying that spending units retain the functions and duties imposed by law as to any fund or account; creating fee and investment accounts; and authorizing fees for administration and expenses."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 136, Exempting mandatory immunizations for religious beliefs; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 432), and there were--yeas 28, nays 71, absent and not voting 1, with the yeas and absent and not voting being as follows:
Yeas: Armstead, Ashley, Azinger, Blair, Border, Calvert, Ellem, Faircloth, Hall, Hamilton, Howard, Iaquinta, Kominar, Louisos, Overington, Perdue, Renner, Schadler, Smirl, Sobonya, Sumner, Tabb, Wakim, Walters, Warner, Webb, G. White, and H. White.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting not having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 136) rejected.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 1:11 p.m., on motion of Delegate Staton, the House of Delegates recessed until 3:30 p.m., and reconvened at that time.
* * * * * * * * * *

Evening Session

* * * * * * * * * *

The Clerk announced that, pursuant to House Rule 70a, Delegate Amores had requested S. B. 440 be removed from the Consent Calendar and be placed upon the House Calendar.
Reordering of the Calendar

Delegate Staton announced that the Committee on Rules had transferred S. B. 433 and S. B. 553, on second reading, House Calendar, to the Special Calendar; and S. B. 507, on third reading, Special Calendar, to the House Calendar.
Special Calendar

Third Reading

Com. Sub. for S. B. 204, Relating to involuntary commitment generally; on third reading, coming up in regular order, with an amendment pending, and with the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section two, following line twelve, by inserting a new paragraph to read as follows:
"Notwithstanding any language in subsection (a) of this section to the contrary, if the individual to be examined under the provisions of this section is incarcerated in a jail, prison or other correctional facility, then only the chief administrative officer of the facility holding the individual may file the application and the application must include the additional statement that the correctional facility itself cannot reasonably provide treatment and other services for the individual's mental illness or addiction."
On page fourteen, section three, line nine, following the word "certification", by inserting the words "practicing in compliance with article seven of said chapter".
And,
On page fourteen, section three, line thirteen, following the word "addicted", by changing the period to a colon and inserting the words "Provided, That the opinions offered by an independent clinical social worker or an advanced nurse practitioner with psychiatric certification must be within their particular areas of expertise, as recognized by the order of the authorizing court" followed by a period.
There being no further amendments, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 433), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Houston.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 204) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 383, Allowing alcohol beverage control commissioner, with approval of governor and board of public works, to sell warehouse and purchase replacement; on third reading, coming up in regular order, with an amendment pending, was reported by the Clerk.
Delegate Martin asked and obtained unanimous consent that his amendment be withdrawn
There being no further amendments, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 434), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman, Houston and Manchin.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 383) passed.
Delegate Staton moved that the bill take effect from its passage
On this question, the yeas and nays were taken (Roll No. 435), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Houston.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 383) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 388, Modifying requirements for titling and registration of imported vehicles; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 436), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 388) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 430, Providing additional restrictions on outdoor advertising; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 437), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 430) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 496, Creating Motor Fuels Excise Tax Act; on third reading, coming up in regular order, with a committee amendment pending, and with the further right to amend, was reported by the Clerk.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page eleven, section fourteen, line thirty-two, following the word "education", by inserting the words "made pursuant to subdivisions one, two, three, four, five and six, subsection c, section nine, article fourteen-c of this chapter".
On page fifteen, section fourteen, line one hundred nine, by striking out the word "are" and inserting in lieu thereof the word "is".
On page thirty-six, section eleven, line one hundred seven, following the word "until", by striking out the words "the time as".
On page forty-seven, section two, beginning on line one hundred fifty-seven, by striking out the words "title 26 of the" and inserting in lieu thereof the words "Title 26" and a comma.
On page sixty-five, section five, line one hundred thirteen, by striking out the word "deemed".
On page ninety-one, section thirteen, line one hundred twenty-four, by striking out the word "may" and inserting in lieu thereof the word "shall".
On page one hundred eleven, section twenty-five, line thirty, following the word "payable", by inserting the words "by the importer".
On page one hundred twenty-three, section thirty-four, line sixty-five, by striking out the word "Give" and inserting in lieu thereof the word "Gives".
On page one hundred twenty-seven, section thirty-six, line twenty-eight, by striking out the word "fine" and inserting in lieu thereof the word "penalty".
On page one hundred twenty-eight, section thirty-seven, line two, following the words "this article or", by inserting the word "to".
On page one hundred thirty-four, section forty-one, line seventy, following the word "Fails", by inserting the word "to".
On page one hundred forty-two, section forty-seven, following line eleven, by inserting the following:
"(b) Beginning the first day of July, two thousand four, the commissioner shall deposit four tenths of one percent of the tax collected pursuant to the provisions of this article into a special revenue account in the state treasury to be known as the 'Weights and Measures Fund': Provided, That in no fiscal year may such deposits exceed one million one hundred eighty two thousand dollars. Expenditures from the account shall be for the purposes set forth in article one, chapter forty seven of this code which relate to ensuring the quality of motor fuels; the accuracy of motor fuel meters; or the accuracy of scales used to weigh motor vehicles in the enforcement of highway load limits, enabling compliance with highway load limits or ensuring accurate delivery weights of commodities conveyed by motor vehicle. Expenditures are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found to be in excess of that needed for purposes stated herein shall be transferred to the road fund."
And,
By relettering the remaining subsection.
On motion of Delegate Michael, the bill was amended on page seventy-six, section nine, line one hundred eleven, by striking out the colon.
On page seventy-six, section nine, beginning on line one hundred twelve, by striking out all of subparagraphs (A), (B), (C), (D) and (E).
On page seventy-seven, section nine, line one hundred twenty-eight, by striking out the words "(F) Any" and inserting in lieu thereof the word "any".
On page seventy-eight, section nine, beginning on line one hundred forty-seven, by striking out all of subdivisions (7), (8), (9), (10), (11), and (12); and, by renumbering the remaining subdivisions.
On page one hundred seven, section twenty-three, beginning on line fourteen, by striking out the words "for two or more consecutive months".
On page one hundred seven, section twenty-three, line fifteen, following the word "to" by inserting the word "the".
And,
On page one hundred seven, section twenty-three, on lines eighteen and nineteen, by striking out the words "not remitted by the delinquent licensed distributor or licensed importer" and inserting in lieu thereof the words "that accrue after the ten business day period referenced above for delinquent distributors or importers".
There being no further amendment, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 438), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 496) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 529, Creating institute for health care professionals and center for nursing; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 439), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for 529) passed.
An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 529 - "A Bill to amend chapter thirty of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article seven-b, relating to the center for nursing; terminating the nursing shortage study commission; establishing the center for nursing; providing for the center to assume the duties of the nursing shortage study commission; delineating the purpose and functions of the center; establishing a board of directors for the center; establishing terms, term limitations and reimbursement for board members; providing for legislative rules; establishing a special revenue account; assessing fees to fund the center; and providing for termination of the center."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 547, Relating to judges and justices and judicial retirement; on third reading, coming up in regular order, was reported by the Clerk.
At the request of Delegate Staton, and by unanimous consent, further consideration of the bill was postponed until the completion of bills on the first reading calendar.
Com. Sub. for S. B. 583, Creating coal resource transportation road system; on third reading, coming up in regular order, with the restricted right to amend, was reported by the Clerk.
On motion of Delegate Staton, the bill was amended on page four, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
"That section one, article six, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that said article be further amended by adding thereto a new section, designated section ten; that sections ten and eleven, article seventeen of said chapter be amended and reenacted; that said article be further amended by adding thereto a new section, designated section eleven-d; that said chapter be further amended by adding thereto two new articles, designated articles seventeen-a and seventeen-b; that section three, article one, chapter seventeen-e of said code be amended and reenacted; that chapter twenty-four-a of said code be amended by adding thereto a new article, designated article one-a; and that article seven of said chapter be amended by adding thereto a new section, designated section seven, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

ARTICLE 6. SPEED RESTRICTIONS.
§17C-6-1. Speed limitations generally; penalty.
(a) No person may drive a vehicle on a highway at a speed greater than is reasonable and prudent under the existing conditions and the actual and potential hazards. In every event speed shall be so controlled as may be necessary to avoid colliding with any person, vehicle or other conveyance on or entering the highways in compliance with legal requirements and the duty of all persons to use due care.
(b) Where no special hazard exists that requires lower speed for compliance with subsection (a) of this section, the speed of any vehicle not in excess of the limits specified in this section or established as hereinafter authorized in this section is lawful, but any speed in excess of the limits specified in this subsection or established as hereinafter authorized in this section is unlawful. The following speed limits apply:
(1) Fifteen miles per hour in a school zone during school recess or while children are going to or leaving school during opening or closing hours. A school zone is all school property including school grounds and any street or highway abutting such the school grounds and extending one hundred twenty-five feet along such the street or highway from the school grounds. The speed restriction does not apply to vehicles traveling on a controlled- access highway which is separated from the school or school grounds by a fence or barrier approved by the division of highways;
(2) Twenty-five miles per hour in any business or residence district; and
(3) Fifty-five miles per hour on open country highways, except as otherwise provided by this chapter.
The speeds set forth in this section may be altered as authorized in sections two and three of this article.
(c) The driver of every vehicle shall, consistent with the requirements of subsection (a) of this section, drive at an appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when a special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions.
(d) The speed limit on controlled access highways and interstate highways, where no special hazard exists that requires a lower speed, shall be not less than fifty-five miles per hour and the speed limits specified in subsection (b) of this section do not apply.
(e) Unless otherwise provided in this section, any person who violates the provisions of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one hundred dollars; upon a second conviction within one year thereafter, shall be fined not more than two hundred dollars; and, upon a third or subsequent conviction within two years thereafter, shall be fined not more than five hundred dollars: Provided, That if such the third or subsequent conviction is based upon a violation of the provisions of this section where the offender exceeded the speed limit by fifteen miles per hour or more, then upon conviction, shall be fined not more than five hundred dollars or confined in the county or regional jail for not more than six months, or both.
(f) Any person who violates the provisions of subdivision (1), subsection (b) of this section is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars: Provided, That if such the conviction is based upon a violation of the provisions of subdivision (1), subsection (b) of this section where the offender exceeded the speed limit by fifteen miles per hour or more in the presence of one or more children, then upon conviction, shall be fined not less than one hundred dollars nor more than five hundred dollars or confined in the regional or county jail for not more than six months, or both.
(g) If an owner or driver is arrested under the provisions of this section for the offense of driving above the posted speed limit on a controlled access highway or interstate highway, and if the evidence shall show shows that the motor vehicle was being operated at ten miles per hour or less above said the speed limit, then, upon conviction thereof, such that person shall be fined not more than five dollars, plus court costs.
(h) Any person operating a commercial motor vehicle engaged in the transportation of coal on the coal resource transportation road system who violates subsection (a), (b) or (c) of this section shall, upon conviction, be subject to fines in triple the amount otherwise provided in subsection (e) of this section.
(i) If an owner or driver is convicted under the provisions of this section for the offense of driving above the speed limit on a controlled-access highway or interstate highway of this state, and if the evidence shall show shows that the motor vehicle was being operated at ten miles per hour or less above said the speed limit, then notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a certified abstract of the judgment on such the conviction shall not be transmitted to the division of motor vehicles: Provided, That the provisions of this subsection do not apply to conviction of owners or drivers who have been issued a commercial driver's license as defined in chapter seventeen-e of this code, if the offense was committed while operating a commercial vehicle.
(h) (j) If an owner or driver is convicted in another state for the offense of driving above the maximum speed limit on a controlled-access highway or interstate highway, and if the maximum speed limit in such the other state is less than the maximum speed limit for a comparable controlled- access highway or interstate highway in this state, and if the evidence shall show shows that the motor vehicle was being operated at ten miles per hour or less above what would be the maximum speed limit for a comparable controlled-access highway or interstate highway in this state, then notwithstanding the provisions of section four, article three, chapter seventeen-b of this code, a certified abstract of the judgment on such the conviction shall not be transmitted to the division of motor vehicles or, if transmitted, shall not be recorded by the division, unless within a reasonable time after conviction, the person convicted has failed to pay all fines and costs imposed by the other state: Provided, That the provisions of this subsection do not apply to conviction of owners or drivers who have been issued a commercial driver's license as defined in chapter seventeen-e of this code, if the offense was committed while operating a commercial vehicle.
§17C-6-10. Enforcement of article with respect to operations of commercial motor vehicles.

In addition to enforcement by officers and other persons authorized by law, designated employees of the public service commission of West Virginia may enforce the provisions of this article as they relate to the operation of commercial motor vehicles.
ARTICLE 17. SIZE, WEIGHT AND LOAD.
§17C-17-10. Officers may weigh, measure, or examine vehicles and require removal or rearrangement of excess loads.

(a) Any police officer or employee of the department division of highways or the public service commission designated by the commissioner of highways as a member of an official weighing crew by his or her representative agency may require the driver of any vehicle or combination of vehicles located on or within one hundred feet of any public highway or right-of- way, and whether moving or stopped, to stop and submit such the vehicle or combination of vehicles to a weighing with portable or stationary weighing devices or submit such the vehicle or combination of vehicles to a measuring or to any other examination necessary to determine if such the vehicle or combination of vehicles is in violation of any of the provisions of this article or article seventeen-a of this chapter, and may require that such the vehicle or combination of vehicles be driven to the nearest weighing device, but only if such weighing device is within two miles of the place where the vehicle or combination of vehicles is stopped.
No police officer or member of an official weighing crew may stop a vehicle or combination of vehicles may be detained for weighing unless a portable or stationary weighing device is actually present at the location where, and at the time, the vehicle or combination of vehicles is stopped or unless the vehicle or combination of vehicles is escorted immediately after being stopped to a the nearest portable or stationary weighing device. In no case may a vehicle or combination of vehicles be detained more than one hour from the time the same it is stopped for weighing unless the vehicle or combination of vehicles is impounded for a another violation or placed out of service for a safety violation. in accordance with the provisions of section fourteen of this article.
(b) Whenever a police officer or a member of an official weighing crew determines that a vehicle or combination of vehicles is in violation of any of the provisions of this article or article seventeen-a of this chapter, he or she may require the driver to stop such vehicle or combination of vehicles in a suitable place and to remain standing in place or be moved to a suitable location until such the vehicle or combination of vehicles is brought into conformity with the provisions violated.
In the case of a weight violation all material unloaded shall be cared for by the owner, lessee or borrower of such the vehicle or combination of vehicles at the risk of such the owner, lessee or borrower: Provided, That no criminal charge shall be preferred against any driver, operator or owner of a vehicle when a rearrangement of the load upon the vehicle, without removal therefrom of the load from the vehicle, reduces the axle loads of said the vehicle to such the limit as is permitted under this chapter.
(c) Any driver of a vehicle or combination of vehicles who fails or refuses to comply with any requirement or provision of this section shall be guilty of a misdemeanor, or in the case of any driver of a vehicle engaged in the transportation of coal, any other additional penalties that may be applicable under the provisions of article seventeen-a of this chapter.
§17C-17-11. Permits for excess size and weight.
(a) The commissioner of highways public service commission may, in its his or her discretion, upon application in writing and good cause being shown therefor issue a special permit in writing authorizing: (1) The applicant, in crossing any highway of this state, to operate or move a vehicle or combination of vehicles of a size or weight or load exceeding the maximum specified in this chapter or otherwise not in conformity with the provisions of this chapter, whether the operation be is continuous or not, provided the applicant shall agree agrees to compensate the commissioner of highways for all damages or expenses incurred in connection with the crossing; (2) the applicant to operate or move a vehicle or combination of vehicles of a size or weight of vehicles or nondivisible load exceeding the maximum specified in this chapter or otherwise not in conformity with the provisions of this chapter; and (3) the applicant to move or operate, for limited or continuous operation, a vehicle hauling containerized cargo in a sealed, seagoing container to or from a seaport or inland waterway port that has or will be transported by marine shipment where the vehicle is not, as a result of hauling the container, in conformity with the provisions of this article relating to weight limitations, upon the conditions that: (A) The container be hauled only on the roadways and highways designated by the commissioner of highways; (B) the contents of the container are not changed from the time it is loaded by the consignor or the consignor's agent to the time it is delivered to the consignee or the consignee
' s agent; and (C) any additional conditions as the commissioner of highways or the public service commission may impose to otherwise ensure compliance with the provisions of this chapter.
(b) (1) The commissioner of highways may issue a special permit to operate or move a vehicle or combination of vehicles of a size or weight of vehicles or nondivisible load exceeding the maximum specified in this chapter or otherwise not in conformity with the provisions of this chapter over routes designated by the commissioner of highways upon such terms and restrictions as prescribed by the public service commission, together with the commissioner of highways may prescribe.
(2) For purposes of this section, nondivisible load means any load exceeding applicable length or weight limits which, if separated into smaller loads or vehicles, would: (A) Compromise the intended use of the vehicle, to the extent that the separation would make it unable to perform the function for which it was intended; (B) destroy the value of the load or vehicle, to the extent that the separation would make it unusable for its intended purpose; or (C) require more than eight workhours to dismantle using appropriate equipment: Provided, That the applicant for a nondivisible load permit has the burden of proof as to the number of workhours required to dismantle the load.
(c) The application for any permit other than a special annual permit shall specifically describe the vehicle or vehicles and load to be operated or moved along or across the highway and the particular highway or crossing of the highway for which the permit to operate is requested, and whether the permit is requested for a single trip or for a continuous operation.
(d) The commissioner of highways public service commission is authorized to issue or withhold a permit at his or her discretion; or, if the permit is issued, to limit the number of trips, or to establish seasonal or other time limitations within which the vehicles described may be operated on or across the highways indicated, or otherwise to limit or prescribe conditions of operation of the vehicle or vehicles, when necessary to assure against undue damage to the road foundations, surface, or structures, and may require the undertaking, bond or other security as may be considered necessary to compensate for any injury to any roadway structure and to specify the type, number and the location for escort vehicles for any vehicle: Provided, That in establishing limitations on permits issued under this section, the public service commission shall consult with the commissioner of highways, and may not issue, limit or condition a permit in a manner inconsistent with the authority of the commissioner of highways.
The commissioner public service commission may charge a fee not to exceed five dollars for the issuance of a permit for a mobile home and a reasonable fee for the issuance of a permit for any other vehicle under the provisions of this section to pay the administrative costs thereof.
(e) Every permit shall be carried in the vehicle or combination of vehicles to which it refers and shall be open to inspection by any police officer or authorized agent of the commissioner of highways or the public service commission granting the permit, and no person shall violate any of the terms or conditions of the special permit.
§17C-17-11d. Establishing maximum road highway weights.
Effective the first day of July, two thousand three, the maximum gross vehicle weight on existing state-maintained roads and public highways designated for gross weight vehicle load of eighty thousand pounds, shall have a tolerance of ten percent. All requirements for vehicle design and axle weights otherwise established under this code remain applicable. In no case may the commissioner authorize weight limits on any state maintained road or public highway that would jeopardize or otherwise limit federal highway fund appropriations to this state. The commissioner of highways shall by the thirty-first day of December, two thousand three, review and revise as the commissioner deems appropriate, weight limits for all state maintained roads and public highways, and provide to the joint committee of government and finance a report denoting all weight limits as they have been designated on state maintained roads and public highways.
ARTICLE 17A. REGULATION OF THE COMMERCIAL TRANSPORTATION OF COAL.

§17C-17A-1. Legislative findings and creation of program.
(a) The Legislature finds and declares that:
(1) No other economic undertaking in the history of West Virginia has had a greater impact upon the citizens of this state, providing such an economic force and affecting the social construct and day-to-day life and environment of the people and communities of this state, than the activities associated with the extraction, transportation and consumption of coal or its byproducts. In areas of this state where the coal industry exists, the economic benefits of coal production are an indispensable part of the local community's vitality.
(2) The historic progression of the coal industry has resulted in an increasing use of the public highways of this state for the transportation of coal to river ports, power generators or rail loading facilities. Roads where coal is transported are mainly two lane rural roads and highways of varying grades and conditions. The daily presence of large commercial motor vehicles on these roads and highways causes significant impact to local communities and the local transportation infrastructure. Local residents are exposed on a daily basis to the dangers associated with sharing the road with a large number of these vehicles.
(3) The increased capacity and ability of coal hauling vehicles, tied with increased economic pressures to reduce industry transportation costs, have created economic incentives for transporting coal at higher than legal limits, and for drivers to drive long hours and operate these vehicles at higher rates of speed. Consequently, average vehicle weights have increased and many coal transport vehicles regularly exceed the lawful limit by more than one hundred percent. The excessive weights of these vehicles have also resulted in the rapid deterioration of state roads and bridges, creating significant costs to the state of millions of dollars in lost road and bridge use and life.
(4) Advances in truck stability, braking, and safety technology have made modern coal transporters much safer conveyances than those used by the industry when the state's current weight laws were enacted. Further advances in technology have made tracking and recording individual vehicles, their operators and load significantly more efficient.
(5) Enforcement of truck safety and driver safety laws has been divided between various jurisdictions such as local and state law enforcement, the division of highways, and the public service commission. As a result, local and state enforcement of those comprehensive laws has not been uniform, with the result that many of these laws have not been enforced.
(6) The resulting need for a remedy for hauling these additional amounts of coal is most severe in a limited and discrete geographic area of the state where the limited access to rail and river transportation options and economic conditions require a regulatory program that allows a greater weight allowance for coal hauling vehicles to address the unique economic circumstances of that region.
(7) That this limited highway system must include additional safety protections for the public sharing the roads with a large coal hauling vehicle fleet and specialized training for operators of these vehicles, requiring the program be designed to assure that state weight and safety requirements be effectively administered and enforced.
(b) A special regulatory program with administrative enforcement authority over all vehicles hauling coal in West Virginia is created. This program is designed to address the economic needs of the state coal industry within the confines of the ability of the transportation infrastructure to accommodate these needs and in careful consideration for road safety and maintenance requirements of these vehicles, by providing for state-wide coal truck weight reporting requirements and allowing a limited statewide increase in weights for commercial vehicles and an additional, limited increase for vehicles hauling coal where the greater increase is required.
§17C-17A-2. Definitions.
For purposes of this article:
(a) A 'coal resource transportation road' means a road designated by the department of transportation as safe and sufficient to allow vehicles hauling coal to carry a greater gross and axle weight of up to one hundred and twenty thousand pounds, with a five percent variance.
(b) 'Coal' or 'coal by-products' means the mineral in raw or clean state, and includes synthetic fuel manufactured or produced for which credit is allowable under 26 U. S. C. §29 of the Internal Revenue Code (1996).
(c) 'Commission' means the public service commission of West Virginia.
(d) 'Division' means the division of highways within the department of transportation.
(e) 'Mining operation' means any activity related to extraction of coal regulated under the provisions of this code.
(f) 'Operator' means the person driving a commercial motor vehicle transporting coal on any public highway of this state.
(g) 'Person' means any individual, partnership, firm, society, association, trust, corporation, other business entity or any agency, unit or instrumentality of federal, state or local government.
(h) 'Shipper' means the person who loads coal or causes coal to be loaded into any commercial motor vehicle that will operate on any public highway in this state.
(i) 'Receiver' means the person who accepts for unloading coal from any vehicle that has operated on any public highway in this state.
(j) 'Vehicle owner' means the person who as owner of a commercial motor vehicle employs, contracts or otherwise directs a driver to operate that vehicle on a public highway of this state for the purpose of transporting coal.
§17C-17A-3. Authority of the division of highways and public service commission generally.
(a) The division of highways shall establish all legal vehicle weight limits for all public highways including roads within the coal resource transportation road system. Public highways shall be designated as coal resource transportation roads by the commissioner of the division of highways pursuant to this article. Only state-maintained roads and public highways found in the following areas: Boone; Fayette; Lincoln; Logan; McDowell; Mercer; Mingo; Raleigh; Wayne and Wyoming counties; in Greenbrier County, routes west of Sam Black Church and southwest to the Summers County line; in Clay County, routes 4 and 16; in Nicholas County, routes 19, 20, 39, 41 and 55; in Webster County, routes 9, 20 and 82; and all state-maintained roads and public highways found in Washington, Malden, Louden and Cabin Creek districts, Kanawha County, are eligible to qualify as part of the coal resource transportation road system. The division shall post signs on roads informing the public of the designation and shall also list a toll free telephone line for public reporting of poor driving or law violations by special permit operators. The division shall provide periodic reports to the commercial motor vehicle weight and safety enforcement advisory committee as established in section two, article one-a, chapter twenty-four-a of this code relating to the study of coal resource transportation roads. The periodic reports shall include the following at a minimum: (1) Citations issued for violations of this chapter; (2) disposition of the violations; (3) road conditions and maintenance; and (4) the amount of undue road damage attributable to coal resource transportation road system permit use.
(b) The public service commission shall administer the coal resource transportation road permitting program and otherwise enforce the provisions of this article. The commission shall establish requirements for vehicle operators holding coal resource transportation road permits pursuant to section five of this article consistent with federal statutory and regulatory requirements.
(1) The commission may, during normal business hours, conduct inspections of all trucking related records of shippers, vehicle operators, vehicle owners and receivers engaged in the transportation of coal. Copies of records shall be provided to commission employees upon request. This provision may not be construed to authorize the commission to reveal trade secrets or other confidential financial information of those persons inspected; however the commission may use any weight measurement records as evidence of a violation of this article.
(2) The commission shall establish and maintain a toll free telephone line for public reporting of poor driving or law violations by special permit operators. In addition, the commission shall require all vehicles operating under a permit issued pursuant to the provisions of this article to clearly display on the vehicle the toll free telephone number.
(3) The commission shall implement a study of commercial vehicle safety related issues, including using higher education institutions and other research organizations. The commission shall provide periodic reports to the commercial motor vehicle weight and safety enforcement advisory committee as established in section two, article one-a, chapter twenty-four-a of this code relating to the study of motor vehicle weight and safety enforcement.
(4) The commission shall establish procedures to use electronic real time reporting of coal vehicle weights by shippers and receivers. The commission may require daily certified reports from shippers or receivers if electronic reporting methods are not used. The commission may authorize alternative measures of reporting that require same day reporting of weight measurements by shippers and receivers.
(5) The commission shall impose and collect from shippers of coal on the coal resource transportation road system through the use of the special permit, issued pursuant to section five of this article, for the privilege of loading coal in excess of eighty-eight thousand pounds for transport on a coal resource transportation road. The fee shall be assessed in the amount of five cents per ton of coal hauled over the road. Revenue from the fees shall be deposited in the coal resource transportation fund created in section five of this article.
(c) Notwithstanding the provisions of section three, article one, chapter twenty-nine-a of this code, the commission and the division shall each propose legislative rules for promulgation in accordance with the provisions of article three of said chapter to carry out their duties and responsibilities pursuant to the provisions of this article.
§17C-17A-4. Special permit issuance; and promulgation of rules.
(a) The commission may issue permits to authorize the hauling of coal of a greater gross and axle weight than otherwise authorized by state law on roads designated by the commissioner of highways as coal resource transportation roads.
(b) Notwithstanding the provisions of section three, article one, chapter twenty-nine-a of this code, the commission shall promulgate emergency and legislative rules to effectuate purposes of this section, which shall provide, at a minimum, the following:
(1) Twenty-four hours mandatory specialized training requirements for commercial vehicles operators with less than two years of commercial driving experience;
(2) Requirements for random drug and alcohol testing; and
(3) Requirements for daily records consistent with the provisions of any applicable federal statutory or regulatory requirements.
§17C-17A-5. Operation of coal trucks under special permits; weight limitations; payment of permit fees.

(a) Any vehicle, when transporting coal over certain public highways, designated as coal resource transportation roads by the commissioner of the department of highways, may be operated at the weights as set forth in this section in excess of the maximum gross weight prescribed in section nine, article seventeen of this chapter and any other maximum weight limitations on any public highway by paying the corresponding special permit fee and otherwise complying with the provisions of this article.
(b) Special permits shall be issued subject to the following requirements:
(1) A single unit truck having one steering axle and two axles in tandem shall be limited to a maximum gross weight of eighty thousand pounds with a tolerance of five percent and pay a special permit fee annually of one hundred dollars;
(2) A single unit truck having one steering axle and three axles in tridem arrangement shall be limited to a maximum gross weight of ninety thousand pounds with a tolerance of five percent and pay a special permit fee annually of one hundred sixty dollars;
(3) A tractor-semitrailer combination with five axles shall be limited to a maximum gross weight of one hundred ten thousand pounds with a tolerance of five percent and pay a special permit fee annually of three hundred dollars;
(4) A tractor-semitrailer combination with six or more axles shall be limited to a maximum gross weight of one hundred twenty thousand pounds with a tolerance of five percent and pay a special permit fee annually of five hundred dollars.
(c) The axle loads set forth in subsection (b) of this section may in no event exceed the maximum axle load allowable based upon the minimum axle spacings as determined by the division of highways in accordance with generally accepted industry standards and bridge loading analysis.
(d) In order to qualify for issuance of a special permit, the applicant shall provide information that demonstrates that the vehicle, as configured, has a total combined axle rating capacity equal to or greater than the maximum amount of weight for which a special permit is sought. The information may include, but not be limited to, the manufacturer's rated capacity. In the event that manufacturer's rated capacity is not available, any other information reasonably determined by the secretary of the department of transportation to give evidence of adequate combined axle rating capacity may be submitted.
(e) Special permits authorized by this section shall be issued by the commission on forms prescribed and furnished by it. The special permit indicium shall be permanently affixed immediately below the window glass on the top of the door on the driver's side of the vehicle. Lost, destroyed, stolen or otherwise unusable special permits indicia shall be replaced in accordance with legislative rules to be promulgated by the commission. The special permit indicium shall be issued to a particular vehicle and shall remain with the vehicle upon transfer of possession or ownership of the vehicle.
(f) Special permits issued pursuant to the provisions of this article are valid for a period of one year from the date of purchase: Provided, That no renewal permits shall be issued to any permittee who, at the time of the renewal, has any administrative or criminal actions pending relating to the operation of commercial motor vehicles in this or other states.
(g) For purposes of this section, the dimensional requirements of motor vehicles shall conform to all applicable federal laws and regulations. Nothing in this section may be construed or administered to jeopardize the receipt of federal funds for highway purposes.
(h) Any operator of a vehicle with a special permit issued under the provisions of this article shall submit the vehicle or combination of vehicles to weighing with portable or stationary weighing devices as required by section ten, article seventeen of this chapter. Any driver or owner of a vehicle or combination of vehicles operating under the provisions of this section who fails or refuses to comply with any requirement of section ten, article seventeen of this chapter forfeits all privileges granted by the special permits.
(i) Any vehicle or combination of vehicles transporting coal pursuant to the provisions of this article shall be securely covered to prevent the escape of the load on any trip exceeding a total distance of one mile on any public highway.
(j) As a condition of receipt of a special permit, vehicle owners and operators shall submit permitted vehicles to safety checks and other vehicle inspection requirements as required by legislative rules of the commission. The commission may impose additional vehicle operation and maintenance requirements by rule as the commission deems appropriate to assure the safe operation of vehicles issued a special permit.
(k) The commission shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code regarding the implementation of the requirements of this section. The rules shall be initially promulgated as emergency rules pursuant to the provisions of said article by no later than the first day of October, two thousand three.
(l) The payment of the special permit fee is in addition to any state registration fee, user fee or other decal fee.
(m) All revenues generated pursuant to this section shall be credited to a special account within the road fund which is created and shall be designated as the 'coal resource transportation road fund'. Moneys of the fund shall be used, by the division of highways for construction, maintenance, and repair of public highways and bridges over which substantial quantities of coal are transported.
(n) For periods of less than one year, the permit fee imposed by subsection (b)of this section shall be prorated to the nearest month.
§17C-17A-6. Reporting requirements for shippers, vehicle owners and receivers of coal transported on public highways.

(a) Every shipper of coal for transport on a public highway in this state that loads vehicles to a gross weight in excess of eighty thousand gross pounds shall be required to report to the commission weight and other transport related data as required in this article. The commission shall by rule establish special recording and reporting methods for timely and accurate disclosure of all shipments of coal made upon any public highway of this state. The rules shall provide for administrative penalties to be imposed for failure to timely or accurately report weight or other required data.
(b) Every vehicle owner who transports coal on a public highway of this state is subject to the provisions of this article and any rules established by the commission requiring reporting, monitoring or removal from service of any unsafe vehicle or driver.
(c) Every receiver of coal transported on a public highway in this state that unloads or causes to be unloaded any shipment of coal shall report to the commission the weight of the shipment and other data related to the shipment as required by rules promulgated by the commission. The rules shall provide for administrative penalties to be imposed for failure to timely or accurately report the weight or other data. Compliance with the reporting requirements shall cause the receiver to be immune from any and all criminal, civil and administrative liability, damages, costs, fines and penalties, based on, arising out of or resulting from the receiver's receipt or acceptance of the shipment.
(d) The commission shall by rule establish special recording and reporting methods for timely and accurate disclosure of all shipments of coal made by commercial motor vehicles upon a public highway of this state.
§17C-17A-7. Permit application procedure.
The commission shall propose in accordance with provisions of article three, chapter twenty- nine-a of this code by emergency and legislative rules, filed no later than the first day of October, two thousand three, a permit application procedure for the issuance of permits pursuant to the authority contained within this article.
§17C-17A-8. Powers and duties of the commission.

In addition to all other powers, duties, responsibilities and authority granted and assigned to the commission in this code and elsewhere prescribed by law, notwithstanding any provision of the code to the contrary:
(1) The commission shall promulgate rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out the provisions of this article including modifying any existing rules and establishing permit application fees up to an amount sufficient to defray the costs of permit review;
(2) The commission or any authorized representative, employee or agent may, at reasonable times, enter onto any coal shipping or receiving facility in the state for the purpose of making an inspection or investigation;
(3) The commission may also perform or require a person, by order, to perform any and all acts necessary to carry out the provisions of this article or the rules promulgated under this article;
(4) The commission, its authorized representative, employee or agent shall make periodic inspections at coal shipping or receiving facilities to effectively implement and enforce the requirements of this article or its rules and may conduct at weigh stations or any other adequate site or facility inspections of coal in transit.
§17C-17A-9. Administrative sanctions.
(a) This section imposes administrative sanctions for violations occurring on the coal resource transportation road system. It is the intent of the Legislature to impose administrative sanctions in addition and separate from any criminal or civil penalties upon any person violating or assisting in the violation of the provisions of this article.
(b) For a particular violation, the commission may take administrative notice of criminal convictions, or a plea of nolo contendere, for a violation for purposes of imposing the administrative sanctions in this section in lieu of the procedure provided in subsection (f) of this section. After providing notice and an opportunity to show cause why penalties should not be imposed for the violation of provisions of this article, the commission shall impose sanctions upon an operator, shipper, receiver or truck owner when a violation is found to have occurred. Lack of intent is not a defense to a violation except as it applies to receivers.
(c) Administrative sanctions for violations shall be imposed as follows:
(1) Every shipper of coal for transport on the public roads or highways of this state which loads coal in an amount which results in gross vehicle weight to be in excess of the weight limits established in this article shall be subject to an administrative penalty per pound in excess of the lawful weight pursuant to the penalty schedule established in section ten of this article;
(2) It is unlawful for any person to operate a commercial motor vehicle engaged in the transportation of coal with a gross vehicle weight for nonpermitted vehicles in excess of the lawful maximum weight on a coal resource transportation road without a permit required by section five of this article. Any person violating this subsection shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of ninety days for the first offense, six months for the second offense, and one year for the third offense: Provided, That in the case of a permit, expired for less than thirty days, the operator my present a valid permit to the commission within five days of the date of the offense in order to avoid the penalty;
(3) Any owner of a commercial motor vehicle engaged in the transportation of coal operating without an excess weight hauling permit and bearing a gross vehicle weight in excess of the lawful maximum weight for the public highway for nonpermitted vehicles who allows the operation of that vehicle upon a coal resource transportation road of this state shall have any state-issued hauling permit then in force suspended by the commission for a period of ninety days for the first offense, six months for the second offense, and revoked for the third offense: Provided, That in the case of a permit, expired for less than thirty days, the operator my present a valid permit to the commission of motor vehicles within five days of the date of the offense in order to avoid the penalty; Provided, however, That should there be no state-issued hauling permit then in force, the owner shall have his or her vehicle registration suspended by the commission of motor vehicles for a period of ninety days for the first offense, six months for the second offense, and revoked for the third offense;
(4) Any operator who operates a vehicle engaged in the transportation of coal that has been issued a special permit by the division upon the coal resource transportation road system and who operates the vehicle with a gross vehicle weight that is in excess of the lawful maximum weight allowed pursuant to the permit, shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of three days for the first offense, thirty days for the second offense, and six months for the third offense;
(5) Any owner of a vehicle engaged in the transportation of coal that has been issued a special permit by the commission who allows the operation of that vehicle upon the coal resource transportation road system with a gross vehicle weight that is in excess of the lawful maximum weight allowed pursuant to the permit shall have the special permit suspended by the commission for a period of three days for the first offense, thirty days for the second offense, and revoked for the third offense;
(6) Any operator who operates a vehicle engaged in the transportation of coal with a suspended excess weight hauling permit at a weight in excess of the limits imposed by article seventeen of this chapter upon the coal resource transportation system shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of six months for the first offense, twelve months for the second offense, and two years for the third offense: Provided, That if the operator is also the owner of the vehicle, the owner penalties set forth in subdivision (5) of this subsection also apply;
(7) Any owner of a vehicle engaged in the transportation of coal with a suspended excess weight hauling permit who allows the operation of that vehicle upon the roads or highways of this state during a period of permit suspension at a weight in excess of the limits imposed by article seventeen of this chapter shall have all state-issued hauling permits then in force suspended by the commission or, if applicable, the commissioner of highways for a period of twelve months for the first offense, two years for the second offense, and revoked for the third offense;
(8) Any operator who operates a vehicle engaged in the transportation of coal that has been issued a special permit by the commission under the provisions of section five of this article and who is charged with a violation of section one, article six, chapter seventeen-c of this code upon a road or highway of this state designated by the commissioner of division of highways as a part of the coal resource transportation road system shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of three days for the first offense, thirty days for the second offense, and revoked for the third offense;
(9) Any person who falsifies information relating to the acquisition of a hauling permit shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of sixty days for the first offense, one hundred twenty days for the second offense, and six months for the third offense;
(10) Any person regulated pursuant to this article that falsifies information relating to the acquisition of a hauling permit shall have its state-issued business license suspended by the commissioner of the state tax division for a period of six months for the first offense, one year for the second offense, and two years for the third offense;
(11) Any person who fabricates or displays an altered, forged, or counterfeited permit shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of sixty days for the first offense, one hundred twenty days for the second offense, and revoked for the third offense;
(12) Any person that bribes or attempts to bribe an employee of the state of West Virginia, or who gives an employee of the state of West Virginia a gift, gratuity, entertainment, loan, favor or other thing of monetary value for the purpose of avoiding any penalties permitted under this article shall have his or her state-issued hauling permit then in force suspended by the commission for a period of sixty days for the first offense, one hundred twenty days for the second offense, and revoked for the third offense; and
(13) In the case of multiple violations by a permittee, shipper, operator or receiver, the commission may direct that the imposed suspension be served concurrently or consecutively, taking into account the frequency of violations committed during the inclusive time periods, or in the same course of misconduct if the commission determines that sufficient mitigating or aggravating circumstances are present.
(14) Any person who aids or abets another person's attempt to avoid suspension shall have his or her driver's license suspended by the commissioner of the division of motor vehicles for a period of sixty days for the first offense, one hundred twenty days for the second offense and six months for the third offense.
(15) Any person that aids or abets a person's attempt to avoid suspension shall have its state- issued business license suspended by the tax commissioner for a period of three months for the first offense, six months for the second offense and one year for the third offense.
(d) Without providing a hearing, the commission may immediately suspend a person from obtaining permits or operating under permit authority for failure to pay a fee required under this article until proper payment is received. Upon the completion of all administrative appeals of any violation that results in a license suspension, the commission shall notify the division of motor vehicles which shall act accordingly.
(e) Without providing a hearing, the commission and law-enforcement personnel may immediately confiscate an altered, forged, or counterfeited permit, or a permit used in violation of its terms and conditions. Upon issuance of a citation alleging a violation of this subsection, the vehicle and its load shall be impounded by law-enforcement personnel until such time as a hearing on the matter is conducted by the division.
(f) Administrative sanctions may be imposed pursuant to the following procedures:
(1) No administrative sanction may be imposed until after the person has been notified by certified mail or personal service. The notice shall include: A reference to the section of statute, rule, order, or permit violated; a concise statement of the facts alleged to constitute a violation; a statement of the administrative penalties to be imposed; and a statement of the person's right to a hearing. The person has twenty days from receipt of the notice within which to deliver to the commission a written request for a hearing.
(2) Subsequent to the hearing and upon finding that a violation has occurred, the commission shall issue a final order. If no hearing is requested, the notice shall become a final order upon the expiration of the twenty-day period.
(3) For purposes of the enhanced penalty provisions of this section, the second and subsequent offenses shall be calculated on a per year basis.
(4) In addition to the imposition of an administrative sanction, the commission or division may, by administrative order and upon an appropriate finding, assess a violator for the reasonable costs, as established by rules of any investigation, inspection, or monitoring survey which led to the establishment of the violation.
§17C-17A-10. Penalties for violation of weight laws; impounding vehicles.

(a) Any owner, lessee or borrower of a commercial motor vehicle or combination of vehicles transporting coal who operates or permits to be operated on any highway the vehicle or combination of vehicles with a total gross weight load imposed upon the highway by any one group of two or more consecutive axles in excess of that permitted by section five of this article, is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine based on the number of pounds in excess of the registered weight, or in excess of allowable weights for single axle, or in excess of allowable weights for groups of two or more consecutive axles, in accordance with the following schedule:
Excess WeightAmount of Fine
1 to 4,000 pounds1 cent per overweight pound
4,001 to 8,000 pounds3 cents per overweight pound
8,001 to 12,000 pounds7 cents per overweight pound
12,001 to 16,000 pounds10 cents per overweight pound
16,001 to 20,000 pounds15 cents per overweight pound
20,001 to 40,000 pounds30 cents per overweight pound
40,001 pounds or more45 cents per overweight pound
(b) Upon a second or subsequent conviction within two years thereafter, the owner, lessee or borrower shall be punished by a fine according to the following schedule:

Excess WeightAmount of Fine


1 to 4,000 pounds 1 cent per overweight pound
4,001 to 8,000 pounds5 cents per overweight pound
8,001 to 12,000 pounds10 cents per overweight pound
12,001 to 16,000 pounds15 cents per overweight pound
16,001 to 20,000 pounds20 cents per overweight pound
20,001 to 40,000 pounds40 cents per overweight pound
40,001 pounds or more80 cents per overweight pound
(c) The fines specified in subsections (a) and (b) of this section are mandatory and may not be waived or reduced by any judicial officer.
(d) In the event any owner, lessee or borrower of a vehicle is charged with violating this section, the vehicle charged to have been overloaded shall be impounded by the arresting officer. The vehicle shall not be released to the alleged offender or the owner unless and until he or she either has: (1) Been acquitted of the charge; (2) been found guilty of the charge and paid any fine assessed under subsection (a) or (b) of this section; or (3) furnished cash or surety bond in at least double the amount of the fine which may be assessed the offender under subsection (a) or (b) of this section conditioned upon the payment of any fine and costs assessed for the violation. The offender is liable for any reasonable storage costs incurred in storing impounded vehicles: Provided, That if the owner of the vehicle is a resident of or has a principal place of business located in this state, and the vehicle has been duly licensed in the state, then the vehicle may not be impounded by the arresting officer who shall deliver to the operator a written notice of the violation; the place, date, and time of violation; the license number of the vehicle; the title number and name and address of the owner; the driver's name, address, and the number of his or her commercial driver's license; and the court, place, date and time for hearing, which shall be within ten days of the violation, Saturdays, Sundays, and holidays excluded. A copy of the notice shall be mailed to the owner of the vehicle within forty-eight hours. If the owner or his, her or its agent fails to appear at the designated place and time or, if convicted, fails to pay the fine and costs assessed for the violation, the court shall order the owner to post a bond or the impounding of the vehicle as provided in this section.
(e) Any shipper or receiver who directs or knowingly permits a commercial motor vehicle to be loaded in excess of registered weight, allowable weights for single axle or allowable weights for groups of two or more consecutive axles, is also guilty of a misdemeanor and, upon conviction, shall be punished by a fine equal to that which may be imposed on the owner, lessee or borrower of a commercial motor vehicle under subsection (a) of this section.
(f) The penalties and fees specified in this section are in addition to any other liability that may be legally fixed against the owner, operator or other person charged with a weight violation.
§17C-17A-11. Effective date.
Criminal and administrative penalties imposed by this article take effect on the first day of October, two thousand three.
§17C-17A-12. Designating special coal resource transportation roads, highways and bridges.

(a) From those counties and districts described in subdivision (a), section two of this article, the commissioner of the division of highways shall identify those public roads, highways and bridges used during the previous twelve month period for transportation of quantities of coal in excess of fifty thousand tons, or projected to be used for transporting quantities of coal in excess of fifty thousand tons during the ensuing year. The identification process shall include the following as to each discretely identifiable section of the public highway:
(1) The current condition of the public roads, highways and bridges;
(2) The estimated quantities of coal transported;
(3) Any planned or necessary maintenance or improvement;
(4) The number of truck loads of coal transported in an average day;
(5) Any anticipated increase or decrease in the quantity of coal being transported; and
(6) Other information determined by the commissioner to be relevant.
(b) Upon completion of the identification process, but in no event later than the first day of July, two thousand three, the commissioner shall designate by order an interim coal resource transportation road system consisting of those public roads, highways, bridges or segments thereof which may be used as special coal haulage roads consistent with the authority contained in this article. The commissioner shall establish a process for the receipt and evaluation of public comment on the designations contained within the interim coal resource transportation road system, and designate weight limits and other conditions for use of the coal resource transportation road system as public interest so provides. The commissioner shall publish a directory, including supporting maps and other documents, of the interim coal resource transportation road system.
(c) By no later than the first day of January, two thousand four, the commissioner shall designate by order the coal resource transportation road system and shall publish a directory, including supporting maps and other documents, of that road system.
(d) The commissioner shall establish a process for periodic evaluation of the designations contained in the coal resource transportation road system in order to add to or delete from the road system certain additional sections of public highways: Provided, That the evaluations and modifications of the road system shall be completed at a minimum on an annual basis.
§17C-17A-13. Authority of the commissioner of the division of highways relating to road and bridge repair on designated coal resource transportation roads.

(a) In addition to all other powers provided by law to the commissioner of highways, he or she may enter into agreements with coal shippers, motor vehicle operators or owners holding or applying for permits issued pursuant to this article, or with any other persons, for the purpose of replacing, repairing, widening, reconstructing, altering, improving or maintaining public highways used for coal resource transportation. These agreements shall contain necessary criteria to assure any damages associated with the transport of coal upon the respective public highways are ameliorated.
(b) All moneys collected by the commissioner shall be deposited in a special account created within the state road fund, known as the coal resource transportation fund, to be expended for the purposes set forth in subsection (a) of this section.
§17C-17A-14. Exclusion of off-road vehicles.
Notwithstanding any other provisions of state law to the contrary, the provisions of this article shall not apply to coal hauling vehicles operating off-road or vehicles designed for off-road.
§17C-17A-15. Exclusion of interstate highways.
Notwithstanding any other provisions of this code to the contrary, the provisions of this article shall not apply to the interstate highways in this state.
§17C-17A-16. Spotting unlawful; penalties.
It is unlawful for any person to intentionally assist an owner or operator of a commercial motor vehicle engaged in the transportation of coal to avoid a road, safety or other lawful inspection or enforcement activity by any law or weight enforcement officer through electronic communications or other means intended to give the commercial vehicle driver knowledge of the location of the officers. Any person who violates this section is guilty of a misdemeanor and shall, upon conviction, be fined not less than one thousand dollars, and upon a second or subsequent conviction, fined not less than two thousand dollars.
ARTICLE 17B. TRANSFER OF CERTAIN JURISDICTION AND EMPLOYEES TO PUBLIC SERVICE COMMISSION.

§17C-17B-1. Legislative findings and purposes.
(a) The Legislature finds that:
(1) Enforcement officers of the public service commission of West Virginia are, as part of their enforcement of chapters twenty-four and twenty-four-a of this code with respect to common and contract carriers by motor vehicle, other for-hire carriers, and private commercial carriers, currently inspecting for safety many of the same vehicles and loads that are inspected for size and weight by employees of the department of transportation;
(2) To effectuate the legislative findings and declarations set forth in section one, article one, chapter five-f of this code, the jurisdiction over the administration and enforcement of state statutes and rules relating to vehicular weight and the jurisdiction over the issuance of permits for excess vehicular weight should be transferred to the public service commission;
(3) To preserve continuity and to maximize efficiency, those employees of the department of transportation who are employed primarily in the performance of the governmental duties described in this section should be transferred to the public service commission; and
(4) The enforcement of state statutes and rules relating to coal truck weight, including costs of inspections of the vehicles and loads, training of enforcement officers, program oversight, administrative proceedings, personal services, employee benefits and all other costs associated with enforcement matters, falls within the scope of maintenance of state roads and public highways as described in section fifty-two, article six of the constitution of this state and in section one, article three, chapter seventeen of this code.
(b) The purposes of this article are to transfer:
(1) Jurisdiction over the enforcement of state statutes and rules, including, but not limited to, the provisions of article seventeen-a of this chapter, relating to coal truck weight, from the department of transportation to the public service commission of West Virginia;
(2) Jurisdiction over the issuance of permits for excess vehicular weight under section eleven, article seventeen, of this chapter, from the department of transportation to the public service commission of West Virginia; and
(3) To the public service commission of West Virginia those employees of the department of transportation whose primary governmental duties include the administration and enforcement of statutes and rules relating to vehicular weight.
§17C-17B-2. Transfer of jurisdiction over vehicle weight enforcement and excess weight permit issuances to public service commission.

(a) Effective the first day of July, two thousand three, the jurisdiction over the enforcement of state statutes and rules, including, but not limited to, applicable provisions of article seventeen of this chapter, relating to vehicular weight, shall be transferred from the department of transportation to the public service commission of West Virginia.
(b) Effective the first day of July, two thousand three, the jurisdiction over the issuance of permits for excess vehicular weight shall be transferred from the department of transportation to the public service commission of West Virginia.
§17C-17B-3. Transfer of certain employees from department of transportation to public service commission.

(a) Effective the first day of July, two thousand three, employees of the department of transportation whose primary governmental duties as of the thirtieth day of June, two thousand three, included the administration and enforcement of this code and rules promulgated under this code, relating to vehicular weight or the issuance of permits for excess vehicular weight shall be transferred from the department of transportation to the public service commission of West Virginia.
(b) Upon the transfer of employees as provided in subsection (a) of this section, the department of transportation shall pay to the public service commission the costs of personal services, employees benefits and other associated costs of the transferred employees.
§17C-17B-4. Costs of enforcement to be funded from revenues in state road fund.

(a) On and after the first day of July, two thousand three, the cost of enforcement of this code and rules promulgated under this code, relating to vehicular weight, including inspections of vehicles and loads, training of enforcement officers, administrative proceedings, personal services, employees benefits and all other costs associated with enforcement matters, shall be funded by revenues in the state road fund, established pursuant to the provisions of section one, article three, chapter seventeen of this code.
(b) The secretary of transportation and the treasurer shall take all actions necessary to implement the transfer of funding to effectuate the purposes of this article.
(c) For fiscal years beginning on and after the first day of July, two thousand four, the commission shall include in its budget to the Legislature the costs of implementation and continuing enforcement of this article for payment and appropriation from the state road fund, or other sources as deemed appropriated, into the public service commission fund.
§17C-17B-5. Exceptions.
(a) Nothing in this article reduces or eliminates the authority of any police officer to enforce the provisions of article seventeen of this chapter.
(b) Nothing in this article reduces or eliminates the jurisdiction of the department of transportation to administer and enforce sections eleven-a, eleven-b, eleven-c, and twelve, article seventeen of this chapter.
(c) Nothing in this article expands, reduces, or eliminates any remedies otherwise available by law.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.

Notwithstanding any other provision of this code, the following definitions apply to this article:
"Alcohol" means:
(a) Any substance containing any form of alcohol, including, but not limited to, ethanol, methanol, propanol and isopropanol;
(b) Beer, ale, port or stout and other similar fermented beverages (including sake or similar products) of any name or description containing one half of one percent or more of alcohol by volume, brewed or produced from malt, wholly or in part, or from any substitute therefor for malt;
(c) Distilled spirits or that substance known as ethyl alcohol, ethanol, or spirits of wine in any form (including all dilutions and mixtures thereof from whatever source or by whatever process produced); or
(d) Wine of not less than one half of one percent of alcohol by volume.
"Alcohol concentration" means:
(a) The number of grams of alcohol per one hundred milliliters of blood; or
(b) The number of grams of alcohol per two hundred ten liters of breath; or
(c) The number of grams of alcohol per sixty-seven milliliters of urine.
"Commercial driver license" means a license issued in accordance with the requirements of this article to an individual which authorizes the individual to drive a class of commercial motor vehicle.
"Commercial driver license information system" is the information system established pursuant to the federal commercial motor vehicle safety act to serve as a clearinghouse for locating information related to the licensing and identification of commercial motor vehicle drivers.
"Commercial driver instruction permit" means a permit issued pursuant to subsection (d), section nine of this article.
"Commercial motor vehicle" means a motor vehicle designed or used to transport passengers or property:
(a) If the vehicle has a gross vehicle weight rating as determined by federal regulation;
(b) If the vehicle is designed to transport sixteen or more passengers, including the driver; or
(c) If the vehicle is transporting hazardous materials and is required to be placarded in accordance with 49 C. F. R. part 172, subpart F.
"Commissioner" means the commissioner of motor vehicles of this state.
"Controlled substance" means any substance so classified under the provisions of chapter sixty-a of this code (uniform controlled substances act) and includes all substances listed on Schedules I through V, inclusive, article two of said chapter sixty-a, as they may be are revised from time to time.
"Conviction" means the final judgment in a judicial or administrative proceeding or a verdict or finding of guilty, a plea of guilty, a plea of nolo contendere or a forfeiture of bond or collateral upon a charge of a disqualifying offense, as a result of proceedings upon any violation of the requirement of this article.
"Division" means the division of motor vehicles.
"Disqualification" means a prohibition against driving a commercial motor vehicle.
"Drive" means to drive, operate or be in physical control of a motor vehicle in any place open to the general public for purposes of vehicular traffic. For the purposes of sections twelve, thirteen and fourteen of this article, "drive" includes operation or physical control of a motor vehicle anywhere in this state.
"Driver" means any person who drives, operates or is in physical control of a commercial motor vehicle, in any place open to the general public for purposes of vehicular traffic, or who is required to hold a commercial driver license.
"Driver license" means a license issued by a state to an individual which authorizes the individual to drive a motor vehicle of a specific class.
"Employee" means a person who is employed by an employer to drive a commercial motor vehicle, including independent contractors. An employee who is self-employed as a commercial motor vehicle driver must shall comply with both the requirements of this article pertaining to both employees and employers.
"Employer" means any person, including the United States, a state, or a political subdivision of a state, who owns or leases a commercial motor vehicle, or assigns a person to drive a commercial motor vehicle.
"Farm vehicle" includes a motor vehicle or combination vehicle registered to the farm owner or entity operating the farm and used exclusively in the transportation of agricultural or horticultural products, livestock, poultry and dairy products from the farm or orchard on which they are raised or produced to markets, processing plants, packing houses, canneries, railway shipping points and cold storage plants and in the transportation of agricultural or horticultural supplies and machinery to such the farms or orchards to be used thereon on the farms or orchards.
"Farmer" includes an owner, tenant, lessee, occupant or person in control of the premises used substantially for agricultural or horticultural pursuits, who is at least eighteen years of age with two years licensed driving experience.
"Farmer vehicle driver" means the person employed and designated by the "farmer" to drive a "farm vehicle" as long as driving is not his or her sole or principal function on the farm, who is at least eighteen years of age with two years licensed driving experience.
"Gross combination weight rating (GCWR)" means the value specified by the manufacturer as the loaded weight of a combination (articulated) vehicle. In the absence of a value specified by the manufacturer, GCWR will be determined by adding the GVWR of the power unit and the total weight of the towed unit and any load thereon.
"Gross vehicle weight rating (GVWR)" means the value specified by the manufacturer as the loaded weight of a single vehicle. In the absence of a value specified by the manufacturer the GVWR will be determined by the total weight of the vehicle and any load thereon.
"Hazardous materials" has the meaning as that found in the Hazardous Materials Transportation Act (§ 49 U.S.C. 5101 et seq. (1998)).
"Motor vehicle" means every vehicle which is self-propelled, and every vehicle which is propelled by electric power obtained from overhead trolley wires but not operated upon rails.
"Out-of-service order" means a temporary prohibition against driving a commercial motor vehicle as a result of a determination by a federal agency or the public service commission, pursuant to chapter twenty-four-a of this code, that: (a) The continued use of a commercial motor vehicle may result in death, serious injury or severe personal injury; or (b) the continued actions by the driver of a commercial motor vehicle poses an imminent hazard to public safety.
"Violation of an out-of-service order" means: (a) The operation of a commercial motor vehicle during the period the driver was placed out of service; or (b) the operation of a commercial motor vehicle by a driver after the vehicle was placed out of service and before the required repairs are made.
"Serious traffic violation" means:
(a) Excessive speeding which is defined as fifteen miles per hour in excess of all posted limits;
(b) Reckless driving as defined in section three, article five, chapter seventeen-c of this code including erratic lane changes and following the vehicle ahead too closely;
(c) A violation of state or local law relating to motor vehicle traffic control, other than a parking violation, arising in connection with a fatal traffic accident. Vehicle weight and vehicle defects are excluded as serious traffic violations, except as to violations committed by a special permittee on the coal resource transportation road system; or
(d) Any other serious violations as may be determined by the U.S. United States Secretary of Transportation.
"State" means a state of the United States and the District of Columbia.
"Tank vehicle" means any commercial motor vehicle that is designed to transport any liquid or gaseous materials within a tank that is either permanently or temporarily attached to the vehicle or the chassis. Such These vehicles include, but are not limited to, cargo tanks and portable tanks, as defined in 49 C.F.R. Part 171 (1998). However, this definition does not include portable tanks having a rated capacity under one thousand gallons.
"At fault traffic accident" means for the purposes of waiving the road test, a determination, by the official filing the accident report, of fault as evidenced by an indication of contributing circumstances in the accident report.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.

ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.
§24A-1A-1. Regulation of commercial vehicle weights.
(a) Effective the first day of July, two thousand three, the commission has jurisdiction over the enforcement of this code and rules promulgated under this code, including, but not limited to, applicable provisions of article seventeen-a, chapter seventeen-c of this code relating to vehicular weight.
(b) Effective the first day of January, two thousand three, the commission has jurisdiction over the issuance of permits for excess vehicular weight.
(c) Effective the first day of January, two thousand three, employees of the division of highways, department of transportation, whose primary governmental duties as of the thirtieth day of June, two thousand two, included the administration and enforcement of state statutes and rules relating to vehicular weight or the issuance of permits for excess vehicular weight shall be transferred from the division of highways and department of transportation to the commission.
(d) The commission shall implement and administer the provisions of this section, and of articles six, six-a and six-b of this chapter.
§24A-1A-2. Creation of advisory committee; purpose; members; terms.
(a) There is created the commercial motor vehicle weight and safety enforcement advisory committee, the purpose of which is to study the implementation of the commercial motor vehicle weight and safety enforcement program set forth in this article.
(b) The committee consists of the following members:
(1) One member who is an employee of the division of highways, to be appointed by the commissioner of highways;
(2) One member who is an employee of the public service commission, to be appointed by the chairman of the public service commission;
(3) One member who is a state police officer, to be appointed by the superintendent of the state police;
(4) One member who is an employee of the division of motor vehicles, to be appointed by the commissioner of motor vehicles;
(5) One member who is an employee of the development office, to be appointed by the governor;
(6) One member who is representative of the coal industry, to be appointed by the governor;
(7) One member of the Senate, to be appointed by the president of the Senate;
(8) One member of the House of Delegates, to be appointed by the speaker of the House of Delegates;
(9) One citizen member, to be appointed by the governor, and
(10) One member of the largest organization representing coal miners, to be appointed by the governor.
(c) Members shall serve for terms of three years. No member may be appointed to serve more than two consecutive terms.
(d) The committee shall annually nominate from its members a chair, who shall hold office for one year.
(e) The committee shall hold at least four meetings each year, or more often as may, in the discretion of the chair, be necessary to effectuate the purposes of this article.
(f) The public members of the committee may receive compensation for attendance at official meetings, not to exceed the amount paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law.
(g) Committee members may be reimbursed for actual and necessary expenses incurred for each day or portion of a day engaged in the discharge of committee duties in a manner consistent with guidelines of the travel management office of the department of administration.
(h) On or before the first day of January, two thousand four and each subsequent year thereafter, the committee shall submit to the governor and to the Legislature a report of its recommendations for improving the effectiveness of the commercial vehicle weight and safety enforcement program.
(i) The commercial vehicle weight and safety enforcement advisory committee shall continue to exist until the first day of July, two thousand seven, pursuant to the provisions of article ten, chapter four of this code, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
ARTICLE 7. COMPLAINTS, DAMAGES AND VIOLATIONS
§24A-7-7. Authority of motor carrier inspectors to enforce all traffic rules as to commercial vehicles; use of radar as evidence.

(a) The employees of the commission designated as motor carrier inspectors have the same authority as law-enforcement officers generally to enforce the provisions of chapter seventeen-c of this code with respect to commercial motor vehicles owned or operated by motor carriers, exempt carriers or private commercial carriers, where vehicles have a gross vehicle weight rating of ten thousand pounds or more.
(b) The speed of a commercial motor vehicle owned or operated by a motor carrier, exempt carrier or private commercial carrier may be proved by evidence obtained by use of any device designed to measure and indicate or record the speed of a moving object by means of microwaves when the evidence is obtained by employees of the commission designated as motor carrier inspectors. The evidence so obtained is prima facie evidence of the speed of the vehicle.
(c) Motor carrier inspectors shall also perform a North American standard safety inspection of each commercial motor vehicle stopped for enforcement purposes pursuant to this section.
(d) Before exercising the provisions of this section, the motor carrier inspectors shall receive adequate training.
(e) Nothing in this section affects the existing authority of law-enforcement officers not employed by the commission to enforce the provisions of chapter seventeen-c of this code."
There being no further amendments, the bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 440), and there were--yeas 56, nays 43, absent and not voting 1, with the nays and absent and not voting being as follows:
Nays: Armstead, Ashley, Blair, Boggs, Border, Brown, Butcher, Canterbury, Caputo, Carmichael, DeLong, Duke, Ellem, Evans, Fleischauer, Foster, Fragale, Frich, Hamilton, Hatfield, Iaquinta, Kuhn, Leggett, Louisos, Mahan, Manchin, Manuel, Martin, Paxton, Perdue, Poling, Renner, Schoen, Shaver, Spencer, Susman, Talbott, R. Thompson, Trump, Tucker, Webster, Yeager and Yost.
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 583) passed.
On motion of Delegate Staton, the title of the bill was amended to read as follows: Com. Sub. for S. B. 583 - "A Bill to amend and reenact section one, article six, chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to further amend said article by adding thereto a new section, designated section ten; to amend and reenact sections ten and eleven, article seventeen of said chapter; to further amend said article by adding thereto a new section, designated section eleven-d; to further amend said chapter by adding thereto two new articles, designated articles seventeen-a and seventeen-b; to amend and reenact section three, article one, chapter seventeen-e of said code; to amend chapter twenty-four-a of said code by adding thereto a new article, designated article one-a; and to amend article seven of said chapter by adding thereto a new section, designated section seven, all relating to the regulation of commercial vehicles; increasing speeding fines for certain commercial vehicles transporting coal; authorizing public service commission to enforce laws of the road for commercial vehicles; authorizing pubic service commission to issue special permits; authorizing weight enforcement for commercial vehicles moving or parked on or within one hundred feet of a public highway or right- of-way; establishing administrative enforcement process and penalties for vehicles transporting coal; issuance of special permits for designated roads; setting maximum highway weights; providing legislative findings for special regulation of coal transportation on the coal resource transportation road system; defining terms; designating eligible counties; directing public service commission to administer commercial vehicle weights and measures; providing that division of highways and public service commission administer all aspects of weight and safety requirements; providing that division of highways coordinate establishment of coal resource transportation roads with the public service commission; establishing a permitting program for vehicles transporting coal which allows higher weight limits upon meeting certain requirements; authorizing public service commission to promulgate emergency and legislative rules; providing special operator and vehicle permit and safety requirements; providing for fees to be assessed for permits; providing reporting requirements for vehicle owners, coal shippers and coal receivers; authorizing commission employees to inspect certain weight transportation records; establishing administrative sanctions for coal vehicle weight violations; establishing new penalties for weight violations; establishing procedure and criteria for commissioner of division of highways to designate special coal resource transportation roads; setting an effective date; authorizing commissioner of division of highways to enter into agreements with persons responsible for coal transport to undertake road and bridge improvements; exclusion of off- road vehicles and interstate highways; providing penalties for spotting; providing for transfer of certain duties, authority and employees of the division of highways to the public service commission; providing dates for transfer of these duties; providing that state road funds for these costs be transferred to public service commission; providing that transfer of these duties does not alter other law-enforcement agencies' authority; costs of enforcement; removing weight from the list of nonserious traffic violations; creating commercial motor vehicle weight and safety enforcement advisory committee; providing for its membership, organization, compensation, expense reimbursements, duties and termination of committee; and providing that certain employees of the public service commission are authorized to enforce certain traffic offenses and use radar."
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 441), and there were--yeas 67, nays 31, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Ashley, Boggs, Brown, Butcher, Canterbury, Caputo, Evans, Fleischauer, Foster, Fragale, Frich, Hamilton, Hatfield, Kuhn, Leggett, Louisos, Manchin, Manuel, Martin, Paxton, Poling, Renner, Schoen, Shaver, Spencer, Susman, Talbott, Thompson, R., Tucker, Webster and Yeager.
Absent And Not Voting: Coleman and Duke.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 583) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 5:21 p.m., on motion of Delegate Staton, the House of Delegates recessed until 6:30 p.m., and reconvened at that time.
* * * * * * * * * *

Special Calendar

Third Reading

S. B. 626, Revising works act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 442), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Coleman, Duke, Mezzatesta and Stalnaker.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 626) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 637, Supplementing, amending, reducing and increasing items from state road fund to department of transportation, division of motor vehicles; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 443), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 637) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 444), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Brown, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 637) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 638, Making supplementary appropriation to department of military affairs and public safety, division of corrections, parolee supervision fees; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 445), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 638) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 446), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 638) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 639, Making supplementary appropriation to department of transportation, division of motor vehicles, driver's license reinstatement fund; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 447), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 639) passed.

Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 448), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 639) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 640, Making supplementary appropriation of federal funds to department of military affairs and public safety, division of veterans' affairs; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 449), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 640) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 450), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 640) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 641, Making supplementary appropriation of federal funds to department of administration, children's health insurance agency; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 451), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 641) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 452), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 641) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. B. 642, Making supplementary appropriation to department of health and human resources, division of human services; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 453), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 642) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 454), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 642) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. B. 643, Making supplementary appropriation to bureau of commerce, division of natural resources; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 455), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 643) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 456), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Beach, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 643) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. B. 644, Making supplementary appropriation of federal funds to department of military affairs and public safety, division of corrections; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 457), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 644) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 458), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 644) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

S. B. 645, Making supplementary appropriation of federal funds to public service commission, motor carrier division; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 459), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 645) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 460), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Ashley, Cann, Coleman, Mezzatesta and Stalnaker.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 645) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Com. Sub. for S. B. 651, Creating academy of science and technology; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 461), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Kiss-SPKR, Cann, Coleman and Mezzatesta.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 651) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 652, Renaming Marion health care hospital John Manchin, Sr., health care center; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 462), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Faircloth.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 652) passed.
An amendment to the title of the bill, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the title to read as follows:
S. B. 652 - "A Bill to amend and reenact section one, article eight, chapter twenty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section one, article eleven of said chapter, all relating to emergency hospitals; and renaming the Marion health care hospital the John Manchin, Sr. health care center."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2050, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 463), and there were--yeas 89, nays 5, absent and not voting 6, with the nays and absent and not voting being as follows:
Nays: Armstead, Carmichael, Caruth, Louisos and Walters.
Absent And Not Voting: Campbell, Cann, Coleman, Fragale, Hall and Hrutkay.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2050) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 464), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Campbell, Cann, Coleman, Fragale and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2050) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Campbell announced that he was absent when the votes were taken on Roll Nos. 463 and 464, and that had he been present, he would have voted "Yea" thereon.
H. B. 3204, Expiring funds from the insurance commissioner -insurance commission fund; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 465), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Cann, Coleman, Fragale and Hall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3204) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 466), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Cann, Coleman, Fragale and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3204) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3205, Expiring funds from the public service commission; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 467), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Louisos and Schoen.
Absent And Not Voting: Cann, Coleman, Hall and Hrutkay.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3205) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 468), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Louisos.
Absent And Not Voting: Cann, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3205) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3206, Supplemental appropriation to the department of tax and revenue -tax division; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 469), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3206) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 470), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3206) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3207, Supplemental appropriation to the department of military affairs and public safety - division of juvenile services; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 471), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3207) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 472), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3207) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3208, Supplemental appropriation to the department of military affairs and public safety - division of corrections - correctional units; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 473), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3208) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 474), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3208) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3209, Supplemental appropriation to the department of military affairs and public safety - West Virginia parole board; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 475), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Frich and Walters.
Absent And Not Voting: Brown, Cann, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3209) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 476), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3209) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 3210, Supplemental appropriation to the department of military affairs and public safety - division of protective services; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 477), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3210) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 478), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Cann, Coleman and Hall.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3210) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages From the Senate

A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 2511,
Authorizing the issuance of a special motor vehicle license plate for "Nemesis Shrine" members.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub. for H. B. 2512, Relating to competitive bidding and notice requirements for the development of natural resources in which the public land corporation has an interest.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2514, Relating to competitive bidding and notice requirements for the development of natural resources in which the public land corporation has an interest.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2529, Relating to the licensure and regulation of psychophysiological detection of deception examiners.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 2669, Hazardous waste management.
A message from the Senate, by
The Clerk of the Senate, announced concurrence by the Senate in the amendment of the House of Delegates to the amendment of the Senate, and the passage, as amended, of
Com. Sub for H. B. 2715, Modernizing the regulation of surplus lines insurers by enactment of the NAIC nonadmitted insurance model act.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2902 , Relating to confidentiality and disclosure of information set forth in oil and gas combined reporting form.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 3037 , Mandating that an apprentice fireman be terminated from employment following three unsuccessful attempts at passing an apprentice examination.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3045 , Implementing the Master Tobacco Settlement Agreement.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3068 , Empowering public service districts to enter into agreements for engineering, design or feasibility studies, without the prior approval of the public service commission.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 3108 , Making all business entity filing requirements consistent with the corporation requirements under the new corporation laws.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 10,
Requesting a study on the advisability of seeking to improve the West Virginia Department of Transportation Employee Handbook.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 42,
Requesting the United States Congress to enact and fully fund navigation needs on our Nation's rivers.
On motion of Delegate Staton, the resolution was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything following the title, and inserting in lieu thereof the following:
"Whereas, The upper reaches of the headwaters of many of our nation's navigable rivers have suffered a decline in river commerce, resulting in severe cutbacks in federal funding for maintenance and operation of locks and dams on these rivers by the United States Army Corps of Engineers (COE), including the hours the locks are open for transit by river traffic; and
Whereas, This problem is especially severe within the Pittsburgh District of COE, for the Monongahela River and Upper Kanawha River in West Virginia and for the upper reaches of the Allegheny River in Pennsylvania, thus causing great harm to commercial and recreational users of these two rivers and to the communities and businesses that rely on unhindered navigation of these rivers; therefore, be it
Resolved by the Legislature of West Virginia:
That the Congress of the United States is requested to enact and fully fund legislation requiring that the Army Corps of Engineers base river navigation budgets not solely on the tonnage of commerce, but also on the value of the commerce and on the needs of recreational users of the rivers and on the importance of all such river uses to the economic well-being and development of communities and regions bounding the river; and, be it
Further Resolved, That it is requested that the Pennsylvania and West Virginia congressional delegations, especially those members of the United States House of Representatives whose districts include the Pittsburgh District of the Army Corps of Engineers, seek appropriations for the federal Fiscal Year 2003 (which began the first day of October, two thousand two) and for successive fiscal years that will enable the Pittsburgh District of the Corps of Engineers to fully meet the navigation needs of all river users and communities for the Upper Allegheny, Upper Monongahela and Upper Kanawha rivers and support Congressman Mollohan in his request for $5 million to research and demonstrate the feasibility of automating lock operation, directly permitting the remote operation of lock chambers for Upper Mon locks and developing a national technology base for a future combination of cost reductions with service improvements and seek congressional authorization and funding for studies of how the federal government might partnership with states and local communities on innovative ways to fund and operate river navigation needs; and, be it
Further Resolved, That the Legislature of West Virginia supports the Pittsburgh-based River Navigation Coalition in their extensive and effective efforts to keep the locks and dams operational on the Allegheny, Monongahela and Kanawha rivers, maximize the hours of operation of the locks for all users, promote river recreational boating, promote commercial navigation by maintaining the river channels and continued operation of the locks and promote economic growth pertaining to recreational and commercial navigation for the entire region; and, be it
Further Resolved, That the Legislature of West Virginia supports the Upper Monongahela River Association Incorporated, a West Virginia not-for-profit 501 (c) (4) corporation (successor to the informal Upper Monongahela Committee for Better Boating formed in February 2000) and a founding member of the River Navigation Coalition, in UMRA's efforts to achieve all of the goals; and, be it
Further Resolved, That the Clerk of the House of Delegates is directed to furnish a copy of this resolution to the West Virginia and Pennsylvania delegations to Congress."
On motion of Delegate Staton, the House concurred in the Senate amendment.
The question before the House being the adoption of the resolution, the same was put and prevailed.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 54, Requesting a study on economically feasible methods to provide access to library services for the large number of West Virginia citizens living in remote areas.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 97, Extending the Committee of Conference until March 8, 2003, relating to consideration of Com. Sub. for H. B. 2120, relating to workers' compensation generally.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 287, Authorizing various agencies within department of tax and revenue to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 316, Authorizing various agencies within bureau of commerce to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
S. B. 648, Relating to election laws generally.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage of
S. B. 662 - "A Bill expiring funds to the unappropriated surplus balance in the state fund, general revenue, for the fiscal year ending the thirtieth day of June, two thousand three, in the amount of one hundred fifty thousand dollars from the division of banking - assessment and examination fund, fund 3041, fiscal year 2003, organization 0303, in the amount of one hundred thousand dollars from the insurance commissioner - insurance commission fund, fund 7152, fiscal year 2003, organization 0704, and in the amount of one hundred thousand dollars from the alcohol beverage control administration - general administrative fund, fund 7352, fiscal year 2003, organization 0708, and making a supplementary appropriation of public moneys out of the treasury from the unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand three, to the department of tax and revenue - tax division, fund 0470, fiscal year 2003, organization 0702."
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 662) was taken up for immediate consideration, read a first time and then ordered to second reading.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 3 - "Requesting the Joint Committee on Government and Finance study the need for creating a forensic science task force."
Whereas, The state has a shortage of specialists in certain forensic science fields; and
Whereas, The lack of forensic science specialists affects the state's ability to address emergency situations; and
Whereas, An improvement in the state's forensic science capabilities would enhance the ability of law enforcement to solve crimes and prosecute criminals; and
Whereas, There is a need to coordinate efforts to enhance laboratory accreditation, training of specialists and sharing of equipment among forensic organizations in the state; and
Whereas, Future federal funding for crime laboratories may require the establishment of a statewide plan for organizing forensic science capabilities; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the need for creating a forensic science task force; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:
S. C. R. 41 - "Requesting the Joint Committee on Government and Finance appoint an interim committee to study the feasibility of converting the Teachers' Defined Contribution Retirement System to a defined benefit retirement system."
Whereas, There is interest among members of the Teachers' Defined Contribution Retirement System in converting the system to a defined benefit retirement system; and
Whereas, The financial ramifications of converting the Teachers' Defined Contribution Retirement System to a defined benefit retirement system, including potential creation of additional unfunded liability of the state, bear further study to determine feasibility; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to appoint an interim committee to study the feasibility of converting the Teachers' Defined Contribution Retirement System to a defined benefit retirement system; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2004, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub for H. B. 2083,
Expanding personnel covered by job sharing in the school system.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:

On page two, by striking out everything following the enacting section and inserting in lieu thereof the following:
CHAPTER 18. EDUCATION.

ARTICLE 5. COUNTY BOARD OF EDUCATION.

§18-5-13. Authority of boards generally.
The boards Each county board, subject to the provisions of this chapter and the rules of the state board, have has the authority:
(a) To control and manage all of the schools and school interests for all school activities and upon all school property, whether owned or leased by the county, including the authority to require that records be kept of all receipts and disbursements of all funds collected or received by any principal, teacher, student or other person in connection with the schools and school interests, any programs, activities or other endeavors of any nature operated or carried on by or in the name of the school, or any organization or body directly connected with the school, to audit the records and to conserve the funds, which shall be considered quasi-public moneys, including securing surety bonds by expenditure of board moneys;
(b) To establish schools, from preschool through high school, inclusive of vocational schools; and to establish schools, and programs or both, for post high school instruction, subject to approval of the state board of education;
(c) To close any school which is unnecessary and to assign the pupils of the school to other schools: Provided, That the closing shall be officially acted upon, and teachers and service personnel involved notified on or before the first Monday in April, in the same manner as provided in section four of this article, except in an emergency, subject to the approval of the state superintendent, or under subdivision (e) of this section;
(d) To consolidate schools;
(e) To close any elementary school whose average daily attendance falls below twenty pupils for two months in succession and send the pupils to other schools in the district or to schools in adjoining districts. If the teachers in the closed school are not transferred or reassigned to other schools, they shall receive one month's salary;
(f) (1) To provide at public expense adequate means of transportation, including transportation across county lines for students whose transfer from one district to another is agreed to by both county boards as reflected in the minutes of their respective meetings, for all children of school age who live more than two miles distance from school by the nearest available road; to provide at public expense, and according to such rules as the board may establish, adequate means of transportation for school children participating in county board-approved curricular and extracurricular activities; and to provide in addition thereto at public expense, by rules and within the available revenues, transportation for those within two miles distance; and to provide, in addition thereto, at no cost to the county board and according to rules established by the board, transportation for participants in projects operated, financed, sponsored or approved by the commission on aging, all subject to the following:
(A) Provided, That all All costs and expenses incident in any way to transportation for projects connected with the commission on aging shall be borne by the commission, or the local or county chapter of the commission;
(B) Provided, however, That in In all cases, the school buses owned by the county board of education shall be driven or operated only by drivers regularly employed by the county board; of education:
(C) Provided further, That the The county board may provide, under rules established by the state board, for the certification of professional employees as drivers of county board-owned vehicles with a seating capacity of less than ten passengers used for the transportation of pupils for school-sponsored activities other than transporting students between school and home. And provided further, That the The use of the vehicles shall be limited to one for each school-sponsored activity; and
(D) And provided further, That buses Buses shall be used for extracurricular activities as provided in this section only when the insurance provided for by this section is in effect.
(2) To enter into agreements with one another as reflected in the minutes of their respective meetings to provide, on a cooperative basis, adequate means of transportation across county lines for children of school age subject to the conditions and restrictions of this subdivision subsection and subdivision subsection (h) of this section;
(g) (1) To lease school buses operated only by drivers regularly employed by the county board to public and private nonprofit organizations or private corporations to transport school-age children to and from camps or educational activities in accordance with rules established by the county board. All costs and expenses incurred by or incidental to the transportation of the children shall be borne by the lessee;
(2) To contract with any college or university or officially recognized campus organizations to provide transportation for college or university students, faculty or staff to and from the college or university. Provided, That only Only college and university students, faculty and staff are being may be transported pursuant to this section. The contract shall include consideration and compensation for bus operators, repairs and other costs of service, insurance and any rules concerning student behavior;
(h) To provide at public expense for insurance against the negligence of the drivers of school buses, trucks or other vehicles operated by the board; and if the transportation of pupils is contracted, then the contract for the transportation shall provide that the contractor shall carry insurance against negligence in an amount specified by the board;
(i) To provide solely from county board funds for all regular full-time employees of the county board all or any part of the cost of a group plan or plans of insurance coverage not provided or available under the West Virginia public employees insurance act;
(j) To employ teacher aides, to provide in-service training for teacher aides, the training to be in accordance with rules of the state board and, in the case of service personnel assuming duties as teacher aides in exceptional children programs, to provide a four-clock-hour program of training prior to the assignment which shall, in accordance with rules of the state board, consist of training in areas specifically related to the education of exceptional children;
(k) To establish and conduct a self-supporting dormitory for the accommodation of the pupils attending a high school or participating in a post high school program and of persons employed to teach in the high school or post high school program;
(l) To employ legal counsel;
(m) To provide appropriate uniforms for school service personnel;
(n) To provide at public expense and under rules as established by any county board of education for the payment of traveling expenses incurred by any person invited to appear to be interviewed concerning possible employment by the county board; of education;
(o) To allow or disallow their designated employees to use publicly provided carriage to travel from their residences to their workplace and return: Provided, That the usage is subject to the supervision of the county board and is directly connected with and required by the nature and in the performance of the employee's duties and responsibilities;
(p) To provide, at public expense, adequate public liability insurance, including professional liability insurance for county board employees;
(q) To enter into agreements with one another to provide, on a cooperative basis, improvements to the instructional needs of each county district. The cooperative agreements may be used to employ specialists in a field of academic study or support functions or services, for the academic study. The agreements are subject to approval by the state board; of education;
(r) To provide information about vocational or higher education opportunities to students with handicapping conditions. The county board shall provide in writing to the students and their parents or guardians information relating to programs of vocational education and to programs available at state funded institutions of higher education. The information may include sources of available funding, including grants, mentorships and loans for students who wish to attend classes at institutions of higher education;
(s) To enter into agreements with one another, with the approval of the state board, for the transfer and receipt of any and all funds determined to be fair when students are permitted or required to attend school in a county district other than the county district of their residence; and
(t) To enter into job-sharing arrangements, as defined in section one, article one, chapter eighteen-a of this code, with its professional employees, subject to the following provisions:
(1) Provided, That a A job-sharing arrangement shall meet all the requirements relating to posting, qualifications and seniority, as provided for in article four, chapter eighteen-a of this code;
(2) Provided, however, That notwithstanding Notwithstanding any provisions of this code or legislative rule and specifically the provisions of article fifteen sixteen, chapter five of this code to the contrary, a county board which enters into a job-sharing arrangement wherein in which two or more professional employees voluntarily share an authorized full-time position shall provide the mutually agreed upon employee coverage but shall not offer insurance coverage to more than one of the job-sharing employees, including any group plan or group plans available under the state public employees insurance act;
(3) Each job-sharing agreement shall be in writing on a form prescribed and furnished by the county board. The agreement shall designate specifically one employee only who is entitled to the insurance coverage. Any employee who is not so designated is not eligible for state public employees insurance coverage regardless of the number of hours he or she works;
(4) provided further, That all All employees involved in the job-sharing agreement meet the requirements of subdivision (4) (3), section two, article sixteen, chapter five of this code; and
(5) When entering into a job-sharing agreement, the county board and the employees involved in the job-sharing agreement shall consider issues such as retirement benefits, termination of the job-sharing agreement and any other issue the parties to the agreement consider appropriate. Any provision in the agreement relating to retirement benefits shall not cause any cost to be incurred by the retirement system that is more than the cost that would be incurred if a single employee were filling the position.

"Quasi-public funds" as used in this section means any money received by any principal, teacher, student or other person for the benefit of the school system as a result of curricular or noncurricular activities.
The board of each county Each county board shall expend under rules it establishes for each child an amount not to exceed the proportion of all school funds of the district that each child would be entitled to receive if all the funds were distributed equally among all the children of school age in the district upon a per capita basis.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 1. GENERAL PROVISIONS.

§18A-1-1. Definitions.

The definitions contained in section one, article one, chapter eighteen of this code apply to this chapter. In addition, the following words used in this chapter and in any proceedings pursuant thereto to this chapter shall, unless the context clearly indicates a different meaning, be construed as follows:
(a) "School personnel" means all personnel employed by a county board of education whether employed on a regular full-time basis, an hourly basis or otherwise. School personnel shall be comprised of two categories: Professional personnel and service personnel;
(b) "Professional personnel" means persons who meet the certification requirements of the state, and/or licensing requirements of the state or both and includes the professional educator and other professional employees;
(c) "Professional educator" is synonymous with and has the same meaning as "teacher" as defined in section one, article one, chapter eighteen of this code. Professional educators shall be classified as:
(1) "Classroom teacher". -- The means a professional educator who has direct instructional or counseling relationship with pupils, spending the majority of his or her time in this capacity;
(2) "Principal". -- The means a professional educator who, as agent of the county board, has responsibility for the supervision, management and control of a school or schools within the guidelines established by said the county board. The major area of such the responsibility shall be the general supervision of all the schools and all school activities involving pupils, teachers and other school personnel;
(3) "Supervisor". -- The means a professional educator who, whether by this or other appropriate title, is responsible for working primarily in the field with professional and other personnel in instructional and other school improvement; and
(4) "Central office administrator". -- The means a superintendent, associate superintendent, assistant superintendent and other professional educators, whether by these or other appropriate titles, who are charged with the administering and supervising of the whole or some assigned part of the total program of the countywide school system;
(d) "Other professional employee" means that person from another profession who is properly licensed and is employed to serve the public schools and includes a registered professional nurse, licensed by the West Virginia board of examiners for registered professional nurses and employed by a county board, of education, who has completed either a two-year (sixty-four semester hours) or a three-year (ninety-six semester hours) nursing program;
(e) "Service personnel" means those who serve the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and as aides;
(f) "Principals academy" or "academy" means the academy created pursuant to section two-b, article three-a of this chapter;
(g) "Center for professional development" means the center created pursuant to section one, article three-a of this chapter;
(h) "Job-sharing arrangement" means a formal, written agreement voluntarily entered into by a county board with two or more of its professional employees who wish to divide between them the duties and responsibilities of one authorized full-time position;
(i) "Prospective employable professional personnel" means certified professional educators who:
(1) Have been recruited on a reserve list of a county board;
(2) Have been recruited at a job fair or as a result of contact made at a job fair;
(3) Have not obtained regular employee status through the job posting process provided for in section seven-a, article four of this chapter; and
(4) Have obtained a baccalaureate degree from an accredited institution of higher education within the past year;
(j) "Dangerous student" means a pupil who is substantially likely to cause serious bodily injury to himself, herself or another individual within that pupil's educational environment, which may include any alternative education environment, as evidenced by a pattern or series of violent behavior exhibited by the pupil, and documented in writing by the school, with the documentation provided to the student and parent or guardian at the time of any offense; and
(k) "Alternative education" means an authorized departure from the regular school program designed to provide educational and social development for students whose disruptive behavior places them at risk of not succeeding in the traditional school structures and in adult life without positive interventions.
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 2083 - "A Bill
to amend and reenact section thirteen, article five, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section one, article one, chapter eighteen-a of said code, all relating to county boards of education generally and expanding job-sharing arrangements to include employees who are not professional employees; requiring written agreements for job-sharing arrangements; requiring agreements to specify which employee is eligible for insurance coverage; requiring certain issues be considered when entering into a job-sharing agreement; and limiting cost to retirement system."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 479), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Sumner.
Absent And Not Voting: Beach, Cann, Coleman and Doyle.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2083) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At the request of Delegate Staton, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
S.B. 484, Providing for rate regulation of title insurers,
And,
S.B. 364, Strengthening multi-disciplinary treatment team process for children involved in court system,
And reports the same back with the recommendation that they do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bills (S. B. 484 and S. B. 364) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 356, Relating to insurance company holding systems and federal Gramm-Leach-Bliley Act,
S. B. 358, Relating to re-domestication of domestic insurance companies,
Com. Sub. for S. B. 412, Eliminating landlord liability for tenant's delinquent utility accounts; security deposits,
And,
Com. Sub. for S. B. 628, Requiring farmers' mutual fire insurance companies to write certain percentage in under-served areas; penalty,
And reports the same back, by unanimous vote of the Committee, with the recommendation that they each do pass.
At the respective requests of Delegate Staton, and by unanimous consent, S. B. 358 was taken up for immediate consideration, read a first time, ordered to second reading and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, S. B. 356, Com. Sub. for S. B. 412 and Com. Sub. for S. B. 628 will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 503, Providing penalty for unauthorized access to government computers or computer networks,
And,
S. B. 650, Defining waters of state,
And reports the same back, with amendment, with the recommendation that they each do pass, as amended.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 654, Extending supervision for certain sex offenders,
And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (S. B. 654) will be placed on the Consent Calendar
.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 109, Notifying third party of entry of order affecting child's care and education,
S. B. 186, Defining aggrieved person for purposes of board of zoning appeals,
And,
S. B. 485, Authorizing insurance commissioner to enter into certain agreements and compromises,
And reports the same back, by unanimous vote by the Committee, with amendment with the recommendation that they each do pass, as amended.
At the respective requests of Delegate Staton, and by unanimous consent, Com. Sub. for S. B. 109 was taken up for immediate consideration, read a first time and then ordered to second reading.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, S. B. 186 and S. B. 485 will be placed on the Consent Calendar.
On motions for leave, bills were introduced (Originating in the Committee on Finance and reported with the recommendation that they each do pass), which were read by their titles, as follows:
By Delegates Michael, Doyle, Browning, Susman, Houston and Warner:
H. B. 3213 - "A Bill expiring funds to the unappropriated surplus balance in the state fund, general revenue, for the fiscal year ending the thirtieth day of June, two thousand three, in the amount of two million dollars from the premium tax savings fund, fund 2367, fiscal year 2003, organization 0218, and making a supplementary appropriation of public moneys out of the treasury from the unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand three, to the to the department of education and the arts-division of rehabilitation services, fund 0310, fiscal year 2003, organization 0932, and to the bureau of commerce-West Virginia development office, fund 0256, fiscal year 2003, organization 0307,"
By Delegates Hall, Leach, Mezzatesta and Campbell:
H. B. 3214
- "A Bill expiring funds to the secretary of state - state election fund, fund 1614, fiscal year 2003, organization 1600, for the fiscal year ending the thirtieth day of June, two thousand three, in the amount of one hundred thousand dollars from the secretary of state - service fees and collections account, fund 1612, fiscal year 2003, organization 1600,"
By Delegates Hall, Anderson, Leach, Mezzatesta and Campbell:
H. B 3215
- "A Bill expiring funds to the unappropriated surplus balance in the state fund, general revenue, for the fiscal year ending the thirtieth day of June, two thousand three, in the amount of ninety nine thousand six hundred eighty four dollars from the secretary of state, fund 0155, fiscal year 2001, organization 1600, activity 097; in the amount of seventy two thousand three hundred sixty nine dollars from the secretary of state, fund 0155, fiscal year 1998, organization 1600, activity 599; in the amount of fifty five thousand seven hundred forty five dollars from the secretary of state, fund 0155, fiscal year 2001, organization 1600, activity 099; and in the amount of three hundred thirteen thousand eight hundred sixteen dollars from the secretary of state, fund 0155, fiscal year 2002, organization 1600, activity 099; and making a supplementary appropriation of public moneys out of the treasury from the unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand three, to the secretary of state, fund 0155, fiscal year 2003, organization 1600, in the line-item entitled "Help America Vote Act-Transfer" and transferring the balance of the line-item to the secretary of state - state election fund, fund 1614, fiscal year 2003, organization 1600,"
By Delegates Hall, Leach, Mezzatesta and Campbell:
H. B. 3216
- "A Bill supplementing, amending, reducing and increasing items of the existing appropriations from the state fund, general revenue, to the secretary of state, fund 0155, fiscal year 2003, organization 1600, supplementing and amending the appropriation for the fiscal year ending the thirtieth day of June, two thousand three,"
By Delegates Hall, Anderson, Leach, Mezzatesta and Campbell:
H. B. 3217
- "A Bill establishing a fund and making a supplementary appropriation of federal funds out of the treasury from the balance of federal moneys remaining unappropriated for fiscal year ending the thirtieth day of June, two thousand three, to the secretary of state - federal consolidated fund, fund 8854, fiscal year 2003, organization 1600, creating and supplementing the appropriation for fiscal year ending the thirtieth day of June, two thousand three,"
By Delegates Hall, Cann, Leach, Mezzatesta and Campbell:
H. B. 3218
- "A Bill expiring funds to the unappropriated surplus balance in the state fund, general revenue, for the fiscal year ending the thirtieth day of June, two thousand three, in the amount of fifty thousand dollars from the office of emergency services-flood disaster, January 1996, fund 6258, fiscal year 2003, organization 0606; in the amount of fifty thousand dollars from the office of emergency services-flood disaster, May 1996, fund 6260, fiscal year 2003, organization 0606; in the amount of fifty thousand dollars from the office of emergency services-flood disaster, July 1996, fund 6261, fiscal year 2003, organization 0606; in the amount of fifty thousand dollars from the office of emergency services-flood disaster, September 1996, fund 6262, fiscal year 2003, organization 0606; in the amount of thirty three thousand eight hundred and four dollars from the office of emergency services-flood disaster, March 1997, fund 6263, fiscal year 2003, organization 0606; fifty thousand dollars from the office of emergency services-flood disaster, June 1998, fund 6264, fiscal year 2003, organization 0606; in the amount of eleven thousand six hundred seventy five dollars from the office of emergency services-flood disaster, February 2000-governor's civil contingent fund, fund 6266, fiscal year 2003, organization 0606; making a supplementary appropriation of public moneys out of the treasury from the unappropriated surplus balance for the fiscal year ending the thirtieth day of June, two thousand three, to the department of military affairs and public safety-office of emergency services, fund 0443, fiscal year 2003, organization 0606,"
And,
By Delegates Houston, Susman, Warner and Michael:
H. B. 3219
- "A Bill expiring funds to the balance of the division of highways-highway tax fund, fund 9017, fiscal year 2003, organization 0803, for the fiscal year ending the thirtieth day of June, two thousand three, in the amount of three million dollars from the division of highways-A. James Manchin Fund, fund 8319, fiscal year 2003, organization 0803."
At the respective requests of Delegate Staton, and by unanimous consent, the bills (H. B. 3213, H. B. 3214, H. B. 3215, H. B. 3216, H. B. 3217, H. B. 3218 and H. B. 3219) were each taken up for immediate consideration, read a first time and then ordered to second reading.
Chairman Michael, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration:
S. B. 151, Relating to reorganizing executive branch of government,
S. B. 352, Reenacting jobs act,
And,
S. B. 647, Establishing and maintaining self-insurance account by investment management board,
And reports the same back, with amendment, with the recommendation that they each do pass.
Chairman Michael, from the Committee on Finance submitted the following report, which was received:
Your Committee on Finance has had under consideration:
S. B. 449, Authorizing transfer of surplus net profits between lottery fund and excess lottery fund,
And reports the same back, with amendment, with the recommendation that it do pass.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 488, Establishing minimum surplus for farmers' mutual fire insurance companies,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (S. B. 488) will be placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 636, Exempting competitive bidding requirement for commodities and services by nonprofit workshops.
And reports the same back with the recommendation that it do pass.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has given further consideration to:
S. B. 341, Creating Uniform Interstate Enforcement of Domestic Violence Protection Orders Act,
And reports the same back, by unanimous vote of the Committee, with amendment, with the recommendation that it do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the provisions of House Rule 70a, the foregoing bill (S. B. 341) will be placed on the Consent Calendar.
At 8:20 p.m., on motion of Delegate Staton, the House of Delegates recessed until 8:35 p.m., and reconvened at that time.
**********

On motion of Delegate Staton, S. B. 484 and Com. Sub. for S. B. 151, having been reported from Committee in earlier proceedings, were taken up for further consideration and then each read a second time, advanced to third reading, and the rule was suspended to permit the offering and consideration of amendments on that reading.

Second Reading

S. B. 52, Eliminating certain bond on out-of-state defendants in automobile accident cases; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 340, Permitting county commissions to establish different building requirements in flood-plain for insurance purposes; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page one by striking out everything following the enacting clause and inserting in lieu thereof the following:
"That sections three-i and three-v, article one, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3i. County commission may cooperate with other governmental units.
(a) Any county commission may join together in the exercise of any of its powers, duties and responsibilities, or otherwise cooperate with any other county or counties, municipality or municipalities, the government of this state or of the United States in carrying out any lawful purpose not in conflict with the constitution of West Virginia: Provided, That the county commission of any county sharing a common border with any other state is hereby empowered to enter into reciprocal agreements with governmental subdivisions or agencies of such other state for the protection of people and property from fire and for emergency medical services and for the reciprocal use of county equipment and personnel for such purpose.
(b) Before a municipality may hold an election pursuant to section two, article six, chapter eight of this code, the county commission must approve the plan for annexation. A county commission may hold a public hearing on any petition for annexation filed by any governing body within the county, to determine the impact on the provision of public services, including utilities, maintenance, police protection, and response to fire and flood.
§7-1-3v. Flood plain and mudslide area management; legislative findings; power and authority; enforcement; provisions cumulative.

(a) The Legislature hereby finds and declares that it is imperative that municipalities and counties in this state be fully authorized and empowered to take all action necessary to comply with the requirements of the National Flood Insurance Act of 1968 (Public Law 91-152) as amended by the Congress of the United States through the fifteenth day of February, one thousand nine hundred seventy-five; that municipalities presently are vested with all statutory power and authority necessary in this regard; and that the purpose of this section is to authorize and empower the several counties of this state to comply with such these requirements.
(b) As used in this section:
(1) 'Act' means the National Flood Insurance Act of 1968 (Public Law 91-152) as amended by the Congress of the United States; through the fifteenth day of February, one thousand nine hundred seventy-five; and
(2) 'Specified area or areas' means the area or areas specified under such that act as a flood plain or mudslide area or areas within which control over construction and improvements must be exercised in order to comply with such that act.
(c) To the extent and only to the extent necessary to comply with or exceed the eligibility requirements of and otherwise fully and in all respects to comply with the requirements of such that act, the county commission of each county is hereby authorized and empowered to may:
(i) (1) Adopt, administer and enforce building codes for a specified area or areas within such the county, which building codes may establish different requirements for different specified areas;
(2) Coordinate efforts with the insurance services office of the national flood insurance program, to develop floodplain management plans and to improve its rating under the community rating system, including but not limited to improving its building code effectiveness grading schedule, to reduce flood insurance rates.
(ii) require (3) Require and issue building permits for all proposed construction or other improvements in such the county: Provided, That nothing contained in this subdivision (ii) shall authorize a county commission to refuse to issue a building permit for any proposed construction or other improvement outside of a specified area or areas within such the county;
(iii) conduct (4) Conduct inspections of construction and other improvements in a specified area or areas within such the county; and
(iv) otherwise take such (5) Take action and impose such requirements regarding land use and control measures in a specified area or areas within such the county as shall be is necessary under such that act: Provided, That no such building code adopted by a county commission shall apply within nor any authority herein above granted in this section shall be exercised by a county commission within the corporate limits of any municipality which has taken appropriate action to comply with such that act unless and until such the municipality so provides by ordinance.
(d) Any such building code adopted by a county commission and any other requirements imposed by a county commission under the provisions of this subsection (c) of this section may be enforced by injunctive action in the circuit court of the county.
(d) (e) The power and authority conferred upon county commissions in this section is supplemental to and not in derogation of any power and authority heretofore or hereafter conferred by law upon county commissions."
Mr. Speaker, Mr. Kiss, and Delegates Doyle, Mahan, Manuel, Sumner, Susman and R. M. Thompson requested that the Journal record them as voting "Nay" on the adoption of the amendment.
The bill was then ordered to third reading.

The following bills on second reading, coming up in regular order, were each read a second time and ordered to third reading:
S. B. 384, Repealing section relating to location of offices of alcohol beverage control administration,
S. B. 400, Allowing insurance commissioner to disclose confidential information in certain cases,
Com. Sub. for S. B. 404, Establishing blue and gray intermodal highway authority,
And,
Com. Sub. for S. B. 405, Changing personal care homes to assisted living residences; extending board.
Com. Sub. for S. B. 423, Allowing board of examiners of land surveyors set certain fees by legislative rule; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page three, section six, following subsection (g), by insert a new subsection, designated subsection (h), to read as follows:
"(h) The fees in effect as of the date of re-enactment of this section remain in effect until the effective date of the legislative rule promulgated pursuant to this section."
The bill was then ordered to third reading.
S. B. 433, Relating to public employees insurance agency's cost-sharing and coverage plan; on second reading, coming up in regular order, was read a second time.
At the request of Delegate Staton, and by unanimous consent, the bill was advanced to third reading with the Committee amendment pending and the rule was suspended to permit the offering and consideration of further amendment on that reading.
S. B. 443, Establishing economic and infrastructure projects under development office guidelines; on second reading, coming up in regular order, was read a second time and ordered to third reading.

S. B. 531, Exempting certain lodging franchise assessed fees from consumers sales and service tax; on second reading, coming up in regular order, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:
That sections two and nine, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-2. Definitions
.
For the purpose of this article: (a) General. -- When used in this article and article fifteen-a of this chapter, words defined in subsection (b) of this section shall have the meanings ascribed to them in this section, except in those instances where a different meaning is provided in this article or the context in which the word is used clearly indicates that a different meaning is intended by the Legislature.
(b) Definitions. --
(a)(1) "Business" includes all activities engaged in or caused to be engaged in with the object of gain or economic benefit, direct or indirect, and all activities of the state and its political subdivisions which involve sales of tangible personal property or the rendering of services when those service activities compete with or may compete with the activities of other persons.
(b)(2) "Communication" means all telephone, radio, light, light wave, radio telephone, telegraph and other communication or means of communication, whether used for voice communication, computer data transmission or other encoded symbolic information transfers and shall include includes commercial broadcast radio, commercial broadcast television and cable television.
(c)(3) "Contracting":
(1)(A) In general. -- "Contracting" means and includes the furnishing of work, or both materials and work, for another (by a sole contractor, general contractor, prime contractor, subcontractor or construction manager) in fulfillment of a contract for the construction, alteration, repair, decoration or improvement of a new or existing building or structure, or any part thereof, or for removal or demolition of a building or structure, or any part thereof, or for the alteration, improvement or development of real property. Contracting means and also includes services provided by a construction manager so long as the project for which the construction manager provides the services results in a capital improvement to a building or structure or to real property.
(2)(B) Form of contract not controlling. -- An activity that falls within the scope of the definition of contracting shall constitute constitutes contracting regardless of whether the contract governing the activity is written or verbal and regardless of whether it is in substance or form a lump sum contract, a cost-plus contract, a time and materials contract, whether or not open-ended, or any other kind of construction contract.
(3)(C) Special rules. -- For purposes of this definition:
(A)(i) The term "structure" includes, but is not limited to, everything built up or composed of parts joined together in some definite manner and attached or affixed to real property or which adds utility to real property or any part thereof or which adds utility to a particular parcel of property and is intended to remain there for an indefinite period of time;
(B)(ii) The term "alteration" means, and is limited to, alterations which are capital improvements to a building or structure or to real property;
(C)(iii) The term "repair" means, and is limited to, repairs which are capital improvements to a building or structure or to real property;
(D)(iv) The term "decoration" means, and is limited to, decorations which are capital improvements to a building or structure or to real property;
(E)(v) The term "improvement" means, and is limited to, improvements which are capital improvements to a building or structure or to real property;
(F)(vi) The term "capital improvement" means improvements that are affixed to or attached to and become a part of a building or structure or the real property or which add utility to real property, or any part thereof, and that last or are intended to be relatively permanent. As used herein, "relatively permanent" means lasting at least a year in duration without the necessity for regularly scheduled recurring service to maintain the capital improvement. "Regular recurring service" means regularly scheduled service intervals of less than one year;
(G)(vii) Contracting does not include the furnishing of work, or both materials and work, in the nature of hookup, connection, installation or other services if the service is incidental to the retail sale of tangible personal property from the service provider's inventory: Provided, That the hookup, connection or installation of the foregoing is incidental to the sale of the same and performed by the seller thereof or performed in accordance with arrangements made by the seller thereof. Examples of transactions that are excluded from the definition of contracting pursuant hereto to this subdivision include, but are not limited to, the sale of wall-to-wall carpeting and the installation of wall-to-wall carpeting, the sale, hookup and connection of mobile homes, window air conditioning units, dishwashers, clothing washing machines or dryers, other household appliances, drapery rods, window shades, venetian blinds, canvas awnings, free-standing industrial or commercial equipment and other similar items of tangible personal property. Repairs made to the foregoing are within the definition of contracting if the repairs involve permanently affixing to or improving real property or something attached thereto which extends the life of the real property or something affixed thereto or allows or intends to allow the real property or thing permanently attached thereto to remain in service for a year or longer; and
(H)(viii) The term "construction manager" means a person who enters into an agreement to employ, direct, coordinate or manage design professionals and contractors who are hired and paid directly by the owner or the construction manager. The business activities of a "construction manager" as defined herein shall in this subdivision constitute contracting, so long as the project for which the construction manager provides the services results in a capital improvement to a building or structure or to real property.
(d)(1) (4) "Directly used or consumed" in the activities of manufacturing, transportation, transmission, communication or the production of natural resources means used or consumed in those activities or operations which constitute an integral and essential part of the activities, as contrasted with and distinguished from those activities or operations which are simply incidental, convenient or remote to the activities.
(2)(A) Uses of property or consumption of services which constitute direct use or consumption in the activities of manufacturing, transportation, transmission, communication or the production of natural resources includes include only:
(A)(i) In the case of tangible personal property, physical incorporation of property into a finished product resulting from manufacturing production or the production of natural resources;
(B)(ii) Causing a direct physical, chemical or other change upon property undergoing manufacturing production or production of natural resources;
(C)(iii) Transporting or storing property undergoing transportation, communication, transmission, manufacturing production or production of natural resources;
(D)(iv) Measuring or verifying a change in property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;
(E)(v) Physically controlling or directing the physical movement or operation of property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;
(F)(vi) Directly and physically recording the flow of property undergoing transportation, communication, transmission, manufacturing production or production of natural resources;
(G)(vii) Producing energy for property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;
(H)(viii) Facilitating the transmission of gas, water, steam or electricity from the point of their diversion to property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;
(I)(ix) Controlling or otherwise regulating atmospheric conditions required for transportation, communication, transmission, manufacturing production or production of natural resources;
(J)(x) Serving as an operating supply for property undergoing transmission, manufacturing production or production of natural resources, or for property directly used in transportation, communication, transmission, manufacturing production or production of natural resources;
(K)(xi) Maintenance or repair Maintaining or repairing of property, including maintenance equipment, directly used in transportation, communication, transmission, manufacturing production or production of natural resources;
(L)(xii) Storage Storing, removal or transportation of economic waste resulting from the activities of manufacturing, transportation, communication, transmission or the production of natural resources;
(M)(xiii) Engaging in pollution control or environmental quality or protection activity directly relating to the activities of manufacturing, transportation, communication, transmission or the production of natural resources and personnel, plant, product or community safety or security activity directly relating to the activities of manufacturing, transportation, communication, transmission or the production of natural resources; or
(N)(xiv) Otherwise be used using as an integral and essential part of transportation, communication, transmission, manufacturing production or production of natural resources.
(3)(B) Uses of property or services which do not constitute direct use or consumption in the activities of manufacturing, transportation, transmission, communication or the production of natural resources include, but are not limited to:
(A)(i) Heating and illumination of office buildings;
(B)(ii) Janitorial or general cleaning activities;
(C)(iii) Personal comfort of personnel;
(D)(iv) Production planning, scheduling of work or inventory control;
(E)(v) Marketing, general management, supervision, finance, training, accounting and administration; or
(F)(vi) An activity or function incidental or convenient to transportation, communication, transmission, manufacturing production or production of natural resources, rather than an integral and essential part of these activities.
(e)(1) (5) "Directly used or consumed" in the activities of gas storage, the generation or production or sale of electric power, the provision of a public utility service or the operation of a utility business means used or consumed in those activities or operations which constitute an integral and essential part of those activities or operation, as contrasted with and distinguished from activities or operations which are simply incidental, convenient or remote to those activities.
(2)(A) Uses of property or consumption of services which constitute direct use or consumption in the activities of gas storage, the generation or production or sale of electric power, the provision of a public utility service or the operation of a utility business include only:
(A)(i) Tangible personal property, custom software or services, including equipment, machinery, apparatus, supplies, fuel and power and appliances, which are used immediately in production or generation activities and equipment, machinery, supplies, tools and repair parts used to keep in operation exempt production or generation devices. For purposes of this subsection, production or generation activities shall commence from the intake, receipt or storage of raw materials at the production plant site;
(B)(ii) Tangible personal property, custom software or services, including equipment, machinery, apparatus, supplies, fuel and power, appliances, pipes, wires and mains, which are used immediately in the transmission or distribution of gas, water and electricity to the public, and equipment, machinery, tools, repair parts and supplies used to keep in operation exempt transmission or distribution devices, and these vehicles and their equipment as are specifically designed and equipped for such those purposes are exempt from the tax when used to keep a transmission or distribution system in operation or repair. For purposes of this subsection, transmission or distribution activities shall commence from the close of production at a production plant or wellhead when a product is ready for transmission or distribution to the public and shall conclude at the point where the product is received by the public;
(C)(iii) Tangible personal property, custom software or services, including equipment, machinery, apparatus, supplies, fuel and power, appliances, pipes, wires and mains, which are used immediately in the storage of gas or water, and equipment, machinery, tools, supplies and repair parts used to keep in operation exempt storage devices;
(D)(iv) Tangible personal property, custom software or services used immediately in the storage, removal or transportation of economic waste resulting from the activities of gas storage, the generation or production or sale of electric power, the provision of a public utility service or the operation of a utility business;
(E)(v) Tangible personal property, custom software or services used immediately in pollution control or environmental quality or protection activity or community safety or security directly relating to the activities of gas storage, generation or production or sale of electric power, the provision of a public utility service or the operation of a utility business.
(3)(B) Uses of property or services which would not constitute direct use or consumption in the activities of gas storage, generation or production or sale of electric power, the provision of a public utility service or the operation of a utility business include, but are not limited to:
(A)(i) Heating and illumination of office buildings;
(B)(ii) Janitorial or general cleaning activities;
(C)(iii) Personal comfort of personnel;
(D)(iv) Production planning, scheduling of work or inventory control;
(E)(v) Marketing, general management, supervision, finance, training, accounting and administration; or
(F)(vi) An activity or function incidental or convenient to the activities of gas storage, generation or production or sale of electric power, the provision of public utility service or the operation of a utility business.
(f) "Drugs" includes all sales of drugs or appliances to a purchaser upon prescription of a physician or dentist and any other professional person licensed to prescribe.
(g)(6) "Gas storage" means the injection of gas into a storage reservoir or the storage of gas for any period of time in a storage reservoir or the withdrawal of gas from a storage reservoir engaged in by businesses subject to the business and occupation tax imposed by sections two and two-e, article thirteen of this chapter.
(h)(7) "Generating or producing or selling of electric power" means the generation, production or sale of electric power engaged in by businesses subject to the business and occupation tax imposed by section two, two-d, two-m or two-n, article thirteen of this chapter.
(i)(8) "Gross proceeds" means the amount received in money, credits, property or other consideration from sales and services within this state, without deduction on account of the cost of property sold, amounts paid for interest or discounts or other expenses whatsoever. Losses may not be deducted, but any credit or refund made for goods returned may be deducted.
(9) "Includes" and "including," when used in a definition contained in this article, does not exclude other things otherwise within the meaning of the term being defined.
(j) "Management information services" means, and is limited to, data processing, data storage, data recovery and backup, programming recovery and backup, telecommunications, computation and computer processing, computer programming, electronic information and data management activities, or any combination of these activities, when such activity, or activities, is not subject to regulation by the West Virginia public service commission and the activity, or activities, is for the purpose of managing, planning for, organizing or operating, any industrial or commercial business, or any enterprise, facility or facilities of an industrial or commercial business, whether the industrial or commercial business or enterprise, facility or facilities of an industrial or commercial business is located within or without this state and without regard to whether the industrial or commercial business, or enterprise, facility or facilities of an industrial or commercial business is owned by the provider of the management information services or by a "related person," as defined in Section 267(b) of the Internal Revenue Code of 1986, as amended.
(k) "Management information services facility" means a building, or any part thereof, or a complex of buildings, or any part thereof, including the machinery and equipment located therein, that is exclusively dedicated to providing management information services to the owner or operator thereof or to another person.
(l)(10) "Manufacturing" means a systematic operation or integrated series of systematic operations engaged in as a business or segment of a business which transforms or converts tangible personal property by physical, chemical or other means into a different form, composition or character from that in which it originally existed.
(n)(11) "Persons" "Person" means any individual, partnership, association, corporation, limited liability company, limited liability partnership, or any other legal entity including this state or its political subdivisions or an agency of either, or the guardian, trustee, committee, executor or administrator of any person.
(m)(12) "Personal service" includes those: (1)(A) Compensated by the payment of wages in the ordinary course of employment; and (2)(B) Rendered to the person of an individual without, at the same time, selling tangible personal property, such as nursing, barbering, shoe shining, manicuring and similar services.
(o)(13) Production of natural resources.
(1)(A) "Production of natural resources" means, except for oil and gas, the performance, by either the owner of the natural resources or another, of the act or process of exploring, developing, severing, extracting, reducing to possession and loading for shipment and shipment for sale, profit or commercial use of any natural resource products and any reclamation, waste disposal or environmental activities associated therewith and the construction, installation or fabrication of ventilation structures, mine shafts, slopes, boreholes, dewatering structures, including associated facilities and apparatus, by the producer or others, including contractors and subcontractors, at a coal mine or coal production facility.
(2)(B) For the natural resources oil and gas, "production of natural resources" means the performance, by either the owner of the natural resources, a contractor or a subcontractor, of the act or process of exploring, developing, drilling, well-stimulation activities such as logging, perforating or fracturing, well-completion activities such as the installation of the casing, tubing and other machinery and equipment and any reclamation, waste disposal or environmental activities associated therewith, including the installation of the gathering system or other pipeline to transport the oil and gas produced or environmental activities associated therewith and any service work performed on the well or well site after production of the well has initially commenced.
(3)(C) All work performed to install or maintain facilities up to the point of sale for severance tax purposes would be is included in the "production of natural resources" and subject to the direct use concept.
(4)(D) "Production of natural resources" does not include the performance or furnishing of work, or materials or work, in fulfillment of a contract for the construction, alteration, repair, decoration or improvement of a new or existing building or structure, or any part thereof, or for the alteration, improvement or development of real property, by persons other than those otherwise directly engaged in the activities specifically set forth in this subsection subdivision (13) as "production of natural resources."
(p)(14) "Providing a public service or the operating of a utility business" means the providing of a public service or the operating of a utility by businesses subject to the business and occupation tax imposed by sections two and two-d, article thirteen of this chapter.
(q)(15) "Purchaser" means a person who purchases tangible personal property, custom software or a service taxed by this article.
(r)(16) "Sale," "sales" or "selling" includes any transfer of the possession or ownership of tangible personal property or custom software for a consideration, including a lease or rental, when the transfer or delivery is made in the ordinary course of the transferor's business and is made to the transferee or his or her agent for consumption or use or any other purpose. "Sale" also includes the furnishing of a service for consideration.
(s)(17) "Service" or "selected service" includes all nonprofessional activities engaged in for other persons for a consideration, which involve the rendering of a service as distinguished from the sale of tangible personal property or custom software, but shall does not include contracting, personal services or the services rendered by an employee to his or her employer or any service rendered for resale: Provided, That the term "service" or "selected service" does not include payments received by a vendor of tangible personal property as an incentive to sell a greater volume of such tangible personal property under a manufacturer's, distributor's or other third-party's marketing support program, sales incentive program, cooperative advertising agreement or similar type of program or agreement, and these payments are not considered to be payments for a "service" or "selected service" rendered, even though the vendor may engage in attendant or ancillary activities associated with the sales of tangible personal property as required under the programs or agreements.
(18) "Streamlined sales and use tax agreement" or "agreement", when used in this article, shall have the same meaning as when used in article fifteen-b of this chapter, except when the context in which the word "agreement" is used clearly indicates that a different meaning is intended by the Legislature.
(t)(19) "Tax" includes all taxes, additions to tax, interest and penalties levied hereunder under this article or article ten of this chapter.
(u)(20) "Tax commissioner" means the state tax commissioner or his or her delegate. The term "delegate" in the phrase "or his or her delegate," when used in reference to the tax commissioner, means any officer or employee of the state tax division duly authorized by the tax commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or rules promulgated for this article.
(v)(21) "Taxpayer" means any person liable for the tax imposed by this article or additions to tax, penalties and interest imposed by article ten of this chapter.
(w)(22) "Transmission" means the act or process of causing liquid, natural gas or electricity to pass or be conveyed from one place or geographical location to another place or geographical location through a pipeline or other medium for commercial purposes.
(x)(23) "Transportation" means the act or process of conveying, as a commercial enterprise, passengers or goods from one place or geographical location to another place or geographical location.
(y)(24) "Ultimate consumer" or "consumer" means a person who uses or consumes services or personal property.
(z)(25) "Vendor" means any person engaged in this state in furnishing services taxed by this article or making sales of tangible personal property or custom software. "Vendor" and "seller" are used interchangeably in this article.
(c) Additional definitions. -- Other terms used in this article are defined in article fifteen-b of this chapter, which definitions are incorporated by reference into article fifteen of this chapter. Additionally, other sections of this article may define terms primarily used in the section in which the term is defined.
§11-15-9. Exemptions.
(a) Exemptions for which exemption certificate may be issued. -- A person having a right or claim to any exemption set forth in this subsection may, in lieu of paying the tax imposed by this article and filing a claim for refund, execute a certificate of exemption, in the form required by the tax commissioner, and deliver it to the vendor of the property or service in the manner required by the tax commissioner. However, the tax commissioner may, by rule, specify those exemptions authorized in this subsection for which exemption certificates are not required. The following sales of tangible personal property and services are exempt as provided in this subsection:
(1) Sales of gas, steam and water delivered to consumers through mains or pipes and sales of electricity;
(2) Sales of textbooks required to be used in any of the schools of this state or in any institution in this state which qualifies as a nonprofit or educational institution subject to the West Virginia department of education and the arts, the board of trustees of the university system of West Virginia or the board of directors for colleges located in this state;
(3) Sales of property or services to this state, its institutions or subdivisions, governmental units, institutions or subdivisions of other states: Provided, That the law of the other state provides the same exemption to governmental units or subdivisions of this state and to the United States, including agencies of federal, state or local governments for distribution in public welfare or relief work;
(4) Sales of vehicles which are titled by the division of motor vehicles and which are subject to the tax imposed by section four, article three, chapter seventeen-a of this code or like tax;
(5) Sales of property or services to churches which make no charge whatsoever for the services they render: Provided, That the exemption granted in this subdivision applies only to services, equipment, supplies, food for meals and materials directly used or consumed by these organizations and does not apply to purchases of gasoline or special fuel;
(6) Sales of tangible personal property or services to a corporation or organization which has a current registration certificate issued under article twelve of this chapter, which is exempt from federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, and which is:
(A) A church or a convention or association of churches as defined in Section 170 of the Internal Revenue Code of 1986, as amended;
(B) An elementary or secondary school which maintains a regular faculty and curriculum and has a regularly enrolled body of pupils or students in attendance at the place in this state where its educational activities are regularly carried on;
(C) A corporation or organization which annually receives more than one half of its support from any combination of gifts, grants, direct or indirect charitable contributions or membership fees;
(D) An organization which has no paid employees and its gross income from fund-raisers, less reasonable and necessary expenses incurred to raise the gross income (or the tangible personal property or services purchased with the net income), is donated to an organization which is exempt from income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended;
(E) A youth organization, such as the girl scouts of the United States of America, the boy scouts of America or the YMCA Indian guide/princess program and the local affiliates thereof, which is organized and operated exclusively for charitable purposes and has as its primary purpose the nonsectarian character development and citizenship training of its members;
(F) For purposes of this subsection:
(i) The term "support" includes, but is not limited to:
(I) Gifts, grants, contributions or membership fees;
(II) Gross receipts from fund-raisers which include receipts from admissions, sales of merchandise, performance of services or furnishing of facilities in any activity which is not an unrelated trade or business within the meaning of Section 513 of the Internal Revenue Code of 1986, as amended;
(III) Net income from unrelated business activities, whether or not the activities are carried on regularly as a trade or business;
(IV) Gross investment income as defined in Section 509(e) of the Internal Revenue Code of 1986, as amended;
(V) Tax revenues levied for the benefit of a corporation or organization either paid to or expended on behalf of the organization; and
(VI) The value of services or facilities (exclusive of services or facilities generally furnished to the public without charge) furnished by a governmental unit referred to in Section 170(c)(1) of the Internal Revenue Code of 1986, as amended, to an organization without charge. This term does not include any gain from the sale or other disposition of property which would be considered as gain from the sale or exchange of a capital asset or the value of an exemption from any federal, state or local tax or any similar benefit;
(ii) The term "charitable contribution" means a contribution or gift to or for the use of a corporation or organization, described in Section 170(c)(2) of the Internal Revenue Code of 1986, as amended; and
(iii) The term "membership fee" does not include any amounts paid for tangible personal property or specific services rendered to members by the corporation or organization;
(G) The exemption allowed by this subdivision does not apply to sales of gasoline or special fuel or to sales of tangible personal property or services to be used or consumed in the generation of unrelated business income as defined in Section 513 of the Internal Revenue Code of 1986, as amended. The provisions of this subdivision apply to sales made after the thirtieth day of June, one thousand nine hundred eighty-nine: Provided, That the exemption granted in this subdivision applies only to services, equipment, supplies and materials used or consumed in the activities for which the organizations qualify as tax-exempt organizations under the Internal Revenue Code and does not apply to purchases of gasoline or special fuel;
(7) An isolated transaction in which any taxable service or any tangible personal property is sold, transferred, offered for sale or delivered by the owner of the property or by his or her representative for the owner's account, the sale, transfer, offer for sale or delivery not being made in the ordinary course of repeated and successive transactions of like character by the owner or on his or her account by the representative: Provided, That nothing contained in this subdivision may be construed to prevent an owner who sells, transfers or offers for sale tangible personal property in an isolated transaction through an auctioneer from availing himself or herself of the exemption provided in this subdivision, regardless of where the isolated sale takes place. The tax commissioner may propose a legislative rule for promulgation pursuant to article three, chapter twenty-nine-a of this code which he or she considers necessary for the efficient administration of this exemption;
(8) Sales of tangible personal property or of any taxable services rendered for use or consumption in connection with the commercial production of an agricultural product the ultimate sale of which is subject to the tax imposed by this article or which would have been subject to tax under this article: Provided, That sales of tangible personal property and services to be used or consumed in the construction of or permanent improvement to real property and sales of gasoline and special fuel are not exempt: Provided, however, That nails and fencing may not be considered as improvements to real property;
(9) Sales of tangible personal property to a person for the purpose of resale in the form of tangible personal property: Provided, That sales of gasoline and special fuel by distributors and importers is taxable except when the sale is to another distributor for resale: Provided, however, That sales of building materials or building supplies or other property to any person engaging in the activity of contracting, as defined in this article, which is to be installed in, affixed to or incorporated by that person or his or her agent into any real property, building or structure is not exempt under this subdivision;
(10) Sales of newspapers when delivered to consumers by route carriers;
(11) Sales of drugs dispensed upon prescription and sales of insulin to consumers for medical purposes;
(12) Sales of radio and television broadcasting time, preprinted advertising circulars and newspaper and outdoor advertising space for the advertisement of goods or services;
(13) Sales and services performed by day care centers;
(14) Casual and occasional sales of property or services not conducted in a repeated manner or in the ordinary course of repetitive and successive transactions of like character by a corporation or organization which is exempt from tax under subdivision (6) of this subsection on its purchases of tangible personal property or services:
(A) For purposes of this subdivision, the term "casual and occasional sales not conducted in a repeated manner or in the ordinary course of repetitive and successive transactions of like character" means sales of tangible personal property or services at fund-raisers sponsored by a corporation or organization which is exempt, under subdivision (6) of this subsection, from payment of the tax imposed by this article on its purchases when the fund-raisers are of limited duration and are held no more than six times during any twelve-month period and "limited duration" means no more than eighty-four consecutive hours; Provided, That sales for volunteer fire departments and volunteer school support groups, with duration of events being no more than eighty-four consecutive hours at a time, which are held no more than eighteen times in a twelve-month period for the purposes of this subdivision are considered "casual and occasional sales not conducted in a repeated manner or in the ordinary course of repetitive and successive transactions of a like character"; and
(B) The provisions of this subdivision apply to sales made after the thirtieth day of June, one thousand nine hundred eighty-nine;
(15) Sales of property or services to a school which has approval from the board of trustees of the university system of West Virginia or the board of directors of the state college system to award degrees, which has its principal campus in this state and which is exempt from federal and state income taxes under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended: Provided, That sales of gasoline and special fuel are taxable;
(16) Sales of mobile homes to be used by purchasers as their principal year-round residence and dwelling: Provided, That these mobile homes are subject to tax at the three-percent rate;
(17) Sales of lottery tickets and materials by licensed lottery sales agents and lottery retailers authorized by the state lottery commission, under the provisions of article twenty-two, chapter twenty-nine of this code;
(18) Leases of motor vehicles titled pursuant to the provisions of article three, chapter seventeen-a of this code to lessees for a period of thirty or more consecutive days. This exemption applies to leases executed on or after the first day of July, one thousand nine hundred eighty-seven, and to payments under long-term leases executed before that date for months of the lease beginning on or after that date;
(19) Notwithstanding the provisions of section eighteen of this article or any other provision of this article to the contrary, sales of propane to consumers for poultry house heating purposes, with any seller to the consumer who may have prior paid the tax in his or her price, to not pass on the same to the consumer, but to make application and receive refund of the tax from the tax commissioner pursuant to rules which are promulgated after being proposed for legislative approval in accordance with chapter twenty-nine-a of this code by the tax commissioner;
(20) Any sales of tangible personal property or services purchased after the thirtieth day of September, one thousand nine hundred eighty-seven, and lawfully paid for with food stamps pursuant to the federal food stamp program codified in 7 U. S. C. §2011, et seq., as amended, or with drafts issued through the West Virginia special supplement food program for women, infants and children codified in 42 U. S. C. §1786;
(21) Sales of tickets for activities sponsored by elementary and secondary schools located within this state;
(22) Sales of electronic data processing services and related software: Provided, That, for the purposes of this subdivision, "electronic data processing services" means: (A) The processing of another's data, including all processes incident to processing of data such as keypunching, keystroke verification, rearranging or sorting of previously documented data for the purpose of data entry or automatic processing and changing the medium on which data is sorted, whether these processes are done by the same person or several persons; and (B) providing access to computer equipment for the purpose of processing data or examining or acquiring data stored in or accessible to the computer equipment;
(23) Tuition charged for attending educational summer camps;
(24) Dispensing of services performed by one corporation, partnership or limited liability company for another corporation, partnership or limited liability company when the entities are members of the same controlled group or are related taxpayers as defined in Section 267 of the Internal Revenue Code. "Control" means ownership, directly or indirectly, of stock, equity interests or membership interests possessing fifty percent or more of the total combined voting power of all classes of the stock of a corporation, equity interests of a partnership or membership interests of a limited liability company entitled to vote or ownership, directly or indirectly, of stock, equity interests or membership interests possessing fifty percent or more of the value of the corporation, partnership or limited liability company;
(25) Food for the following are exempt:
(A) Food purchased or sold by a public or private school, school-sponsored student organizations or school-sponsored parent-teacher associations to students enrolled in the school or to employees of the school during normal school hours; but not those sales of food made to the general public;
(B) Food purchased or sold by a public or private college or university or by a student organization officially recognized by the college or university to students enrolled at the college or university when the sales are made on a contract basis so that a fixed price is paid for consumption of food products for a specific period of time without respect to the amount of food product actually consumed by the particular individual contracting for the sale and no money is paid at the time the food product is served or consumed;
(C) Food purchased or sold by a charitable or private nonprofit organization, a nonprofit organization or a governmental agency under a program to provide food to low-income persons at or below cost;
(D) Food sold by a charitable or private nonprofit organization, a nonprofit organization or a governmental agency under a program operating in West Virginia for a minimum of five years to provide food at or below cost to individuals who perform a minimum of two hours of community service for each unit of food purchased from the organization;
(E) Food sold in an occasional sale by a charitable or nonprofit organization, including volunteer fire departments and rescue squads, if the purpose of the sale is to obtain revenue for the functions and activities of the organization and the revenue obtained is actually expended for that purpose;
(F) Food sold by any religious organization at a social or other gathering conducted by it or under its auspices, if the purpose in selling the food is to obtain revenue for the functions and activities of the organization and the revenue obtained from selling the food is actually used in carrying on those functions and activities: Provided, That purchases made by the organizations are not exempt as a purchase for resale;
(G) Food sold after the thirty-first day of July, two thousand two, by volunteer fire departments and rescue squads that are exempt from federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, when the purpose of the sale is to obtain revenue for the functions and activities of the organization and the revenue obtained is exempt from federal income tax and actually expended for that purpose;
(26) Sales of food by little leagues, midget football leagues, youth football or soccer leagues, band boosters or other school or athletic booster organizations supporting activities for grades kindergarten through twelve and similar types of organizations, including scouting groups and church youth groups, if the purpose in selling the food is to obtain revenue for the functions and activities of the organization and the revenues obtained from selling the food is actually used in supporting or carrying on functions and activities of the groups: Provided, That the purchases made by the organizations are not exempt as a purchase for resale;
(27) Charges for room and meals by fraternities and sororities to their members: Provided, That the purchases made by a fraternity or sorority are not exempt as a purchase for resale;
(28) Sales of or charges for the transportation of passengers in interstate commerce;
(29) Sales of tangible personal property or services to any person which this state is prohibited from taxing under the laws of the United States or under the constitution of this state;
(30) Sales of tangible personal property or services to any person who claims exemption from the tax imposed by this article or article fifteen-a of this chapter pursuant to the provision of any other chapter of this code;
(31) Charges for the services of opening and closing a burial lot;
(32) Sales of livestock, poultry or other farm products in their original state by the producer of the livestock, poultry or other farm products or a member of the producer's immediate family who is not otherwise engaged in making retail sales of tangible personal property; and sales of livestock sold at public sales sponsored by breeders or registry associations or livestock auction markets: Provided, That the exemptions allowed by this subdivision apply to sales made on or after the first day of July, one thousand nine hundred ninety, and may be claimed without presenting or obtaining exemption certificates: Provided, however, That the farmer shall maintain adequate records;
(33) Sales of motion picture films to motion picture exhibitors for exhibition if the sale of tickets or the charge for admission to the exhibition of the film is subject to the tax imposed by this article and sales of coin-operated video arcade machines or video arcade games to a person engaged in the business of providing the machines to the public for a charge upon which the tax imposed by this article is remitted to the tax commissioner: Provided, That the exemption provided in this subdivision applies to sales made on or after the first day of July, one thousand nine hundred ninety, and may be claimed by presenting to the seller a properly executed exemption certificate;
(34) Sales of aircraft repair, remodeling and maintenance services when the services are to an aircraft operated by a certified or licensed carrier of persons or property, or by a governmental entity, or to an engine or other component part of an aircraft operated by a certificated or licensed carrier of persons or property, or by a governmental entity and sales of tangible personal property that is permanently affixed or permanently attached as a component part of an aircraft owned or operated by a certificated or licensed carrier of persons or property, or by a governmental entity, as part of the repair, remodeling or maintenance service and sales of machinery, tools or equipment, directly used or consumed exclusively in the repair, remodeling or maintenance of aircraft, aircraft engines or aircraft component parts, for a certificated or licensed carrier of persons or property, or for a governmental entity;
(35) Charges for memberships or services provided by health and fitness organizations relating to personalized fitness programs;
(36) Sales of services by individuals who baby-sit for a profit: Provided, That the gross receipts of the individual from the performance of baby-sitting services do not exceed five thousand dollars in a taxable year;
(37) Sales of services after the thirtieth day of June, one thousand nine hundred ninety-seven, by public libraries or by libraries at academic institutions or by libraries at institutions of higher learning;
(38) Commissions received after the thirtieth day of June, one thousand nine hundred ninety- seven, by a manufacturer's representative;
(39) Sales of primary opinion research services after the thirtieth day of June, one thousand nine hundred ninety-seven, when:
(A) The services are provided to an out-of-state client;
(B) The results of the service activities, including, but not limited to, reports, lists of focus group recruits and compilation of data are transferred to the client across state lines by mail, wire or other means of interstate commerce, for use by the client outside the state of West Virginia; and
(C) The transfer of the results of the service activities is an indispensable part of the overall service.
For the purpose of this subdivision, the term "primary opinion research" means original research in the form of telephone surveys, mall intercept surveys, focus group research, direct mail surveys, personal interviews and other data collection methods commonly used for quantitative and qualitative opinion research studies;
(40) Sales of property or services after the thirtieth day of June, one thousand nine hundred ninety-seven, to persons within the state when those sales are for the purposes of the production of value-added products: Provided, That the exemption granted in this subdivision applies only to services, equipment, supplies and materials directly used or consumed by those persons engaged solely in the production of value-added products: Provided, however, That this exemption may not be claimed by any one purchaser for more than five consecutive years, except as otherwise permitted in this section.
For the purpose of this subdivision, the term "value-added product" means the following products derived from processing a raw agricultural product, whether for human consumption or for other use: For purposes of this subdivision, the following enterprises qualify as processing raw agricultural products into value-added products: Those engaged in the conversion of:
(A) Lumber into furniture, toys, collectibles and home furnishings;
(B) Fruits into wine;
(C) Honey into wine;
(D) Wool into fabric;
(E) Raw hides into semifinished or finished leather products;
(F) Milk into cheese;
(G) Fruits or vegetables into a dried, canned or frozen product;
(H) Feeder cattle into commonly accepted slaughter weights;
(I) Aquatic animals into a dried, canned, cooked or frozen product; and
(J) Poultry into a dried, canned, cooked or frozen product;
(41) After the thirtieth day of June, one thousand nine hundred ninety-seven, sales of music instructional services by a music teacher and artistic services or artistic performances of an entertainer or performing artist pursuant to a contract with the owner or operator of a retail establishment, restaurant, inn, bar, tavern, sports or other entertainment facility or any other business location in this state in which the public or a limited portion of the public may assemble to hear or see musical works or other artistic works be performed for the enjoyment of the members of the public there assembled when the amount paid by the owner or operator for the artistic service or artistic performance does not exceed three thousand dollars: Provided, That nothing contained herein may be construed to deprive private social gatherings, weddings or other private parties from asserting the exemption set forth in this subdivision. For the purposes of this exemption, artistic performance or artistic service means and is limited to the conscious use of creative power, imagination and skill in the creation of aesthetic experience for an audience present and in attendance and includes, and is limited to, stage plays, musical performances, poetry recitations and other readings, dance presentation, circuses and similar presentations and does not include the showing of any film or moving picture, gallery presentations of sculptural or pictorial art, nude or strip show presentations, video games, video arcades, carnival rides, radio or television shows or any video or audio taped presentations or the sale or leasing of video or audio tapes, airshows, or any other public meeting, display or show other than those specified herein: Provided, however, That nothing contained herein may be construed to exempt the sales of tickets from the tax imposed in this article. The state tax commissioner shall propose a legislative rule pursuant to article three, chapter twenty-nine-a of this code establishing definitions and eligibility criteria for asserting this exemption which is not inconsistent with the provisions set forth herein: Provided further, That nude dancers or strippers may not be considered as entertainers for the purposes of this exemption;
(42) After the thirtieth day of June, one thousand nine hundred ninety-seven, charges to a member by a membership association or organization which is exempt from paying federal income taxes under Section 501(c)(3) or (c)(6) of the Internal Revenue Code of 1986, as amended, for membership in the association or organization, including charges to members for newsletters prepared by the association or organization for distribution primarily to its members, charges to members for continuing education seminars, workshops, conventions, lectures or courses put on or sponsored by the association or organization, including charges for related course materials prepared by the association or organization or by the speaker or speakers for use during the continuing education seminar, workshop, convention, lecture or course, but not including any separate charge or separately stated charge for meals, lodging, entertainment or transportation taxable under this article: Provided, That the association or organization pays the tax imposed by this article on its purchases of meals, lodging, entertainment or transportation taxable under this article for which a separate or separately stated charge is not made. A membership association or organization which is exempt from paying federal income taxes under Section 501(c)(3) or (c)(6) of the Internal Revenue Code of 1986, as amended, may elect to pay the tax imposed under this article on the purchases for which a separate charge or separately stated charge could apply and not charge its members the tax imposed by this article or the association or organization may avail itself of the exemption set forth in subdivision (9) of this subsection relating to purchases of tangible personal property for resale and then collect the tax imposed by this article on those items from its member;
(43) Sales of governmental services or governmental materials after the thirtieth day of June, one thousand nine hundred ninety-seven, by county assessors, county sheriffs, county clerks or circuit clerks in the normal course of local government operations;
(44) Direct or subscription sales by the division of natural resources of the magazine currently entitled "Wonderful West Virginia" and by the division of culture and history of the magazine currently entitled "Goldenseal" and the journal currently entitled "West Virginia History";
(45) Sales of soap to be used at car wash facilities;
(46) Commissions received by a travel agency from an out-of-state vendor;
(47) The service of providing technical evaluations for compliance with federal and state environmental standards provided by environmental and industrial consultants who have formal certification through the West Virginia department of environmental protection or the West Virginia bureau for public health or both. For purposes of this exemption, the service of providing technical evaluations for compliance with federal and state environmental standards includes those costs of tangible personal property directly used in providing such services that are separately billed to the purchaser of such services and on which the tax imposed by this article has previously been paid by the service provider; and
(48) Sales of tangible personal property and services by volunteer fire departments and rescue squads that are exempt from federal income taxes under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, during fund-raising activities held after the thirty-first day of July, two thousand two, if the sole purpose of the sale is to obtain revenue for the functions and activities of the organization and the revenue obtained is exempt from federal income tax and actually expended for that purpose;
(49) Lodging franchise fees, including royalties, marketing fees, reservation system fees or other fees assessed after the first day of December, one thousand nine hundred ninety-seven, that have been or may be imposed by a lodging franchiser as a condition of the franchise agreement; and
(50) Sales of the regulation size United States flag and the regulation size West Virginia flag for display.
(b) Refundable exemptions. -- Any person having a right or claim to any exemption set forth in this subsection shall first pay to the vendor the tax imposed by this article and then apply to the tax commissioner for a refund or credit, or as provided in section nine-d of this article, give to the vendor his or her West Virginia direct pay permit number. The following sales of tangible personal property and services are exempt from tax as provided in this subsection:
(1) Sales of property or services to bona fide charitable organizations who make no charge whatsoever for the services they render: Provided, That the exemption granted in this subdivision applies only to services, equipment, supplies, food, meals and materials directly used or consumed by these organizations and does not apply to purchases of gasoline or special fuel;
(2) Sales of services, machinery, supplies and materials directly used or consumed in the activities of manufacturing, transportation, transmission, communication, production of natural resources, gas storage, generation or production or selling electric power, provision of a public utility service or the operation of a utility service or the operation of a utility business, in the businesses or organizations named in this subdivision and does not apply to purchases of gasoline or special fuel;
(3) Sales of property or services to nationally chartered fraternal or social organizations for the sole purpose of free distribution in public welfare or relief work: Provided, That sales of gasoline and special fuel are taxable;
(4) Sales and services, fire fighting or station house equipment, including construction and automotive, made to any volunteer fire department organized and incorporated under the laws of the state of West Virginia: Provided, That sales of gasoline and special fuel are taxable; and
(5) Sales of building materials or building supplies or other property to an organization qualified under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended, which are to be installed in, affixed to or incorporated by the organization or its agent into real property or into a building or structure which is or will be used as permanent low-income housing, transitional housing, an emergency homeless shelter, a domestic violence shelter or an emergency children and youth shelter if the shelter is owned, managed, developed or operated by an organization qualified under Section 501(c)(3) or (c)(4) of the Internal Revenue Code of 1986, as amended.
The bill was then ordered to third reading.
S. B. 535, Providing mandatory carding for all purchasers of nonintoxicating beer, wine and liquor; liability protection; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 553, Prohibiting killing bears weighing less than certain amount; on second reading, coming up in regular order, was read a second time.
On motion of Delegate Williams, the bill was amended bill on page four, section twenty-two- a, line, forty-six, following the semi-colon, by inserting the word "or" and beginning on line 47, by striking out all of subdivision (10) and renumbering the remaining subdivision.
The bill was then ordered to third reading.
S. B. 558, Establishing County and Municipal Economic Opportunity Development District Acts; on second reading, coming up in regular order, was, on motion of Delegate Staton,
postponed until the completion of all items remaining on the calendar.
S. B. 658, Making supplementary appropriation to department of health and human resources, division of human services, James "Tiger" Morton Catastrophic Illness Fund; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 659, Making supplementary appropriation to state board of examiners for licensed practical nurses; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 660, Supplementing, amending, reducing and increasing items from state road fund to department of transportation, division of highways; on second reading, coming up in regular order, was read a second time and ordered to third reading.
H. B. 3211, Expiring funds to the unappropriated surplus balance in the state fund, general revenue; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
H. B. 3212, Expiring funds to the department of military affairs and public safety - West Virginia state police - surplus real property process fund; on second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
First Reading

S. B. 381, Adding professional surveyors to professional limited liability companies; on first reading, coming up in regular order, was read a first time and ordered to second reading.
Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 480), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Duke and Sumner.
Absent And Not Voting: Coleman and Wakim.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a second time and ordered to third reading.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 481), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:
Absent And Not Voting: Coleman.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 381) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
The House then proceeded to further consideration of S. B. 547, Relating to judges and justices and judicial retirement, having been read a third time in earlier proceedings, and postponed until this time.
On motion of Delegate Staton, the bill was laid over until tomorrow.
S. B. 558, Establishing County and Municipal Economic Opportunity Development District Acts; on second reading, having been postponed until this time, was read a second time.
An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page six, section five, line eighteen, following the words "in section", by striking out the word "eighteen" and inserting in lieu thereof the word "twenty".
On page fifty-one, section five, line eighteen, following the words "in section", by striking out the word "eighteen" and inserting in lieu thereof the word "twenty".
On page sixty-one, section nine, following line seventeen, by striking out the remainder of the subsection.
On page ninety-two, section eleven-a, beginning on line one, by striking out lines one through three in their entirety, and inserting in lieu thereof the following:
"(a) Any municipality or county commission which, pursuant to section twelve, article twenty-two, chapter seven of this code, section eleven, article thirteen-b, chapter eight of this code, or section twelve, article thirty-eight, chapter eight of this code imposes a special district".
And,
On page ninety-six, section nine-f, following the words "of section", by striking out the remainder of the section and inserting in lieu thereof the following:
"twelve, article twenty-two, chapter seven of this code, section
eleven, article thirteen-b, chapter eight of this code, or section twelve, article thirty-eight, chapter eight of this code shall be is exempt from the tax imposed by this article: Provided, That the special district excise tax does not apply to sales of gasoline and special fuel."
The bill was then ordered to third reading.
Miscellaneous Business

Delegate Martin asked and obtained unanimous consent that the remarks of Delegate Paxton regarding the gravity of Delegate Paxton's recent illness be printed in the Appendix to the Journal.
Delegates R. Thompson, Carmichael, Howard and Armstead requested that the Clerk record them as voting "Nay" on the motion to refuse to concur in the Senate amendments as to H. B. 2771 in earlier proceedings.
At 9:06 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 10:00 a.m., Saturday, March 8, 2003.