Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Com. Sub. for Senate Bill No. 554, Continuing guardianship or conservatorship of deceased protected persons.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect from passage, of
     Eng. Senate Bill No. 574, Allowing commissioner to sell liquor warehouse under certain circumstances.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Com. Sub. for Senate Bill No. 596, Relating to powers and duties of board of directors of state board of risk and insurance management.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage of
     Eng. Com. Sub. for Senate Bill No. 675, Relating to outdoor advertising revenues.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Senate Bill No. 28, Exempting certain personal property from levy, forced sale, attachment or execution.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §38-8-1 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 8. EXEMPTIONS FROM LEVY.
§38-8-1. Exemptions of personal property.

     (a) Any individual residing in this state or the dependent of such individual may set apart and hold as exempt from execution or other process the following personal property:
     (1) Such individual's interest, not to exceed five thousand dollars in value, in one motor vehicle;
     (2) Such individual's interest not to exceed eight thousand dollars in aggregate value, in household goods, furniture, toys, animals, appliances, books and wearing apparel that are held primarily for the personal, family or household use of such individual;
     (3) Such individual's aggregate interest, not to exceed three thousand dollars, in any implements, professional books or tools of such individual's trade;
     (4) Such individual's funds on deposit in a federally insured financial institution, wages or salary, not to exceed the greater of: (i) One thousand dollars; or (ii) one hundred twenty-five percent of the amount of the annualized federal poverty level of such individual's household divided by the number of pay periods for such individual per year; and
     (5) Funds on deposit in an individual retirement account (IRA), including a simplified employee pension (SEP), in the name of such individual: Provided, That the amount is exempt only to the extent it is not or has not been subject to an excise or other tax on excess contributions under Section 4973 or 4979 of the Internal Revenue Code of 1986, or both sections, or any successor provisions, regardless of whether the tax is or has been paid.
     (b) Notwithstanding the foregoing, in no case may an individual residing in this state or the dependent of such individual exempt from execution or other process more than fifteen thousand dollars in the aggregate in personal property listed in subdivisions (1), (2), (3) and (4), subsection (a) of this section.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Senate Bill No. 28, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 28) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 143, Relating to small employer accident and sickness insurance policies.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page eight, section sixteen, line one hundred thirty-eight, by striking out the word "eighty" and inserting in lieu thereof the word "seventy-seven".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 143, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 143) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 148, Creating Tax Amnesty Program of 2004.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page three, after the enacting section, by inserting the following chapter heading:
CHAPTER 11. TAXATION.;

     On page eighteen, by striking out all of section eleven;
     And renumbering the remaining sections;
     On page twenty, after section twelve, by adding the following:
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power of tax commissioner to suspend or cancel certificate; refusal to renew.

     (a) Registration period. -- All business registration certificates issued under the provisions of section four of this article shall be are for the period of one year beginning the first day of July and ending the thirtieth day of the following June: Provided, That beginning on or after the first day of July, one thousand nine hundred ninety-nine, all business registration certificates issued under the provisions of section four of this article shall be issued for two fiscal years of this state, subject to the following transition rule. If the first year for which a business was issued a business registration certificate under this article began on the first day of July of an even-numbered calendar year, then the tax commissioner may issue a renewal certificate to that business for the period beginning the first day of July, one thousand nine hundred ninety-nine, and ending the thirtieth day of June, two thousand, upon receipt of fifteen dollars for each such one-year certificate. Thereafter, only certificates covering two fiscal years of this state shall be issued.
     (b) Revocation or suspension of certificate. --
     (1) The tax commissioner may cancel or suspend a business registration certificate at any time during a registration period if:
     (A) The registrant filed an application for a business registration certificate, or an application for renewal thereof, for the registration period that was false or fraudulent.
     (B) The registrant willfully refused or neglected to file a tax return or to report information required by the tax commissioner for any tax imposed by or pursuant to this chapter.
     (C) The registrant willfully refused or neglected to pay any tax, additions to tax, penalties or interest, or any part thereof, when they became due and payable under this chapter, determined with regard to any authorized extension of time for payment.
     (D) The registrant neglected to pay over to the tax commissioner on or before its due date, determined with regard to any authorized extension of time for payment, any tax imposed by this chapter which the registrant collects from any person and holds in trust for this state.
     (E) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from payment of the taxes imposed by such articles on some or all of the registrant's purchases for use in business upon issuing to the vendor a properly executed exemption certificate, by failing to timely pay use tax on taxable purchase for use in business, or by failing to either pay the tax or give a properly executed exemption certificate to the vendor.
     (F) The registrant has failed to pay in full delinquent personal property taxes owing for the calendar year immediately preceding the calendar year in which the application is made.
     (2) Before canceling or suspending any such business registration certificate, the tax commissioner shall give written notice of his or her intent to suspend or cancel the business registration certificate of the taxpayer, the reason for the suspension or cancellation, the effective date of the cancellation or suspension and the date, time and place where the taxpayer may appear and show cause why such business registration certificate should not be canceled or suspended. This written notice shall be served on the taxpayer in the same manner as a notice of assessment is served under article ten of this chapter, not less than twenty days prior to the date of such the show cause informal hearing. The taxpayer may appeal cancellation or suspension of its business registration certificate in the same manner as a notice of assessment is appealed under article ten ten-a of this chapter: Provided, That the filing of a petition for appeal shall does not stay the effective date of the suspension or cancellation. A stay may be granted only after a hearing is held on a motion to stay filed by the registrant, upon finding that state revenues will not be jeopardized by the granting of the stay. The tax commissioner may, in his or her discretion and upon such terms as he or she may specify, agree to stay the effective date of the cancellation or suspension until another date certain.
     (3) On or before the first day of August, two thousand four, the tax commissioner shall propose for promulgation legislative rules establishing ancillary procedures for the tax commissioner's suspension of business registration certificates for failure to pay delinquent personal property taxes pursuant to paragraph (F), subdivision (1) of this subsection. The rules shall, at a minimum, establish any additional requirements for the provision of notice deemed necessary by the tax commissioner to meet requirements of law; establish protocols for the communication and verification of information exchanged between the tax commissioner, sheriffs and others; and establish fees to be assessed against delinquent taxpayers that shall be deposited into a special fund which is hereby created and expended for general tax administration by the tax division of the department of tax and revenue and for operation of the tax division. Upon authorization of the Legislature, the rules shall have the same force and effect as if set forth herein. No provision of this subdivision may be construed to restrict in any manner the authority of the tax commissioner to suspend such certificates for failure to pay delinquent personal property taxes under paragraph (C) or (F), subdivision (1) of this subsection or under any other provision of this code prior to the authorization of the rules.
     (c) Refusal to renew. -- The tax commissioner may refuse to issue or renew a business registration certificate if the registrant is delinquent in the payment of any tax administered by the tax commissioner under article ten of this chapter or the corporate license tax imposed by article twelve-c of this chapter, until the registrant pays in full all such the delinquent taxes including interest and applicable additions to tax and penalties. In his or her discretion and upon such terms as he or she may specify, the tax commissioner may enter into an installment payment agreement with such the taxpayer in lieu of the complete payment. Failure of the taxpayer to fully comply with the terms of the installment payment agreement shall render the amount remaining due thereunder immediately due and payable and the tax commissioner may suspend or cancel the business registration certificate in the manner hereinbefore provided in this section.
     (d) Refusal to renew due to delinquent personal property tax. -- The tax commissioner shall refuse to issue or renew a business registration certificate when informed in writing, signed by the county sheriff, that personal property owned by the applicant and used in conjunction with the business activity of the applicant is subject to delinquent property taxes. The tax commissioner shall forthwith notify the applicant that the commissioner will not act upon the application until information is provided evidencing that the taxes due are either exonerated or paid.
CHAPTER 11A. COLLECTION AND ENFORCEMENT OF PROPERTY TAXES.

ARTICLE 1. ACCRUAL AND COLLECTION OF TAXES.

§11A-1-7. No collection of current taxes until delinquent taxes are paid.

     The sheriff, in preparing his or her tax receipts for any current year shall examine and compare them with the delinquent list for the preceding year in his or her hands, and if any tract or personal property is found to be delinquent for the preceding year, he or she shall note the fact on his or her current receipts and shall decline to receive current taxes on any land or personal property where it appears to his or her office that a prior year's taxes are unpaid. Acceptance of current taxes through oversight shall not relieve the owner of any land or personal property of the liability to pay prior taxes and penalties imposed for nonpayment.
ARTICLE 2. DELINQUENCY AND METHODS OF ENFORCING PAYMENT.

§11A-2-11. Delinquent lists; oath.

     The sheriff, after ascertaining which of the taxes assessed in his or her county are delinquent, shall, on or before the first day of May next succeeding the year for which the taxes were assessed, prepare the following delinquent lists, arranged by districts and alphabetically by name of the person charged, and showing in respect to each the amount of taxes remaining delinquent on the thirtieth day of April: (1) A list of property in the landbook improperly entered or not ascertainable; (2) a list of other delinquent real estate; and (3) a list of all other delinquent taxes: Provided, That the list shall conclude with a notice, substantially as follows: "Any person holding a West Virginia business registration certificate under the authority of article twelve, chapter eleven of this code who does not pay all delinquent personal property taxes shall have his or her license to do business in this state suspended until the delinquency is cured."
     The sheriff on returning each list shall, at the foot thereof, subscribe an oath, which shall be subscribed before and certified by some person duly authorized to administer oaths, in from form or effect as follows:
     I, ........, sheriff (or deputy sheriff or collector) of the County of ........., do swear that the foregoing list is, to the best of my knowledge and belief, complete and accurate, and that I have received none of the taxes listed therein.
     Except for the oath, the tax commissioner auditor shall prescribe the form of the delinquent lists.;
     On pages two and three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11 and §11-10D-12; that §11-12-5 of said code be amended and reenacted; that §11A-1-7 of said code be amended and reenacted; and that §11A-2-11 of said code be amended and reenacted, all to read as follows:;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 148--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11 and §11-10D-12; to amend and reenact §11-12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and reenact §11A-2-11 of said code, all relating generally to the collection of delinquent taxes; granting persons who owe but have not paid one or more taxes administered under West Virginia tax procedure and administration act an amnesty period during which past-due taxes may be paid or payment agreements acceptable to tax commissioner executed; providing for waiver of additions to tax, money penalties and fifty percent of accrued interest on past-due taxes when taxes for which amnesty is granted are paid within one month after tax amnesty period closes or paid pursuant to payment agreements executed during amnesty period; prohibiting criminal prosecution for default for which tax amnesty is granted; setting forth legislative findings and declarations; establishing requirements of and exceptions and limitations to tax amnesty program; defining certain terms; authorizing tax commissioner to do all things necessary to implement two-month tax amnesty program during current calendar year, including, but not limited to, issuance of emergency legislative rules; suspending language of code that is inconsistent or conflicts with language creating tax amnesty program; requiring tax commissioner to report certain information to Legislature and governor after conclusion of tax amnesty program; authorizing tax commissioner to suspend a business registration certificate for failure to pay delinquent personal property taxes; requiring the tax commissioner to refuse to issue or renew a business registration certificate upon certain notice from the sheriff that the registrant has not paid delinquent personal property taxes; requiring tax commissioner to propose legislative rules establishing ancillary procedures for the tax commissioner's suspension of business registration certificates; requiring sheriff to decline to receive current taxes due on any personal property where a prior year's taxes are unpaid; and providing language for inclusion in publication giving notice of that license to do business in state will be suspended for failure to pay delinquent personal property taxes.
     On motion of Senator Helmick, the following amendments to the House of Delegates amendments to the bill (Eng. S. B. No. 148) were reported by the Clerk and adopted:
     On page eighteen, article ten-d, after section ten, by inserting the following:
§11-10D-11. Penalty on liabilities eligible for amnesty for which taxpayer did not apply for amnesty.

     (a) If a taxpayer has a liability that would be eligible for amnesty under this article but the taxpayer fails to apply for amnesty within the designated amnesty period as determined in this article or, after applying for amnesty, fails to satisfy all of the requirements for amnesty, then a penalty in the amount of ten percent of the unpaid liability shall be added to the amount of any unpaid taxes eligible for amnesty.
     (b) The tax commissioner shall assess the penalty provided in subsection (a) of this section unless:
     (1) Taxpayer provides evidence satisfactory to the commissioner which demonstrates that taxpayer's failure to apply for amnesty or his or her failure to satisfy all of the requirements for amnesty was not an intentional attempt to avoid the payment of taxes and was based on the taxpayer's mistaken belief that he or she did not have any liability eligible for amnesty; or
     (2) Taxpayer's failure to apply for amnesty, in the case of an assessment issued before the start of or during the amnesty period, is due to taxpayer contesting in an administrative or judicial forum the disputed liability.;
     And renumbering the remaining sections;
     On page four, article twelve, section five, subsection (b), subdivision (3), by striking out the words "August, two thousand four" and inserting in lieu thereof the words "July, two thousand five";
     On pages two and three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11, §11-10D-12 and §11-10D-13; to amend and reenacted §11-12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and reenact §11A-2-11 of said code, all to read as follows:;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 148--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-10D-1, §11-10D-2, §11-10D-3, §11-10D-4, §11-10D-5, §11-10D-6, §11-10D-7, §11-10D-8, §11-10D-9, §11-10D-10, §11-10D-11, §11-10D-12 and §11-10D-13; to amend and reenact §11-12-5 of said code; to amend and reenact §11A-1-7 of said code; and to amend and reenact §11A-2-11 of said code, all relating generally to the collection of delinquent taxes; granting persons who owe but have not paid one or more taxes administered under West Virginia tax procedure and administration act an amnesty period during which past-due taxes may be paid or payment agreements acceptable to tax commissioner executed; providing for waiver of additions to tax, money penalties and fifty percent of accrued interest on past-due taxes; prohibiting criminal prosecution for default for which tax amnesty is granted; providing a penalty of ten percent for failure to take advantage of this amnesty program; setting forth legislative findings and declarations; establishing requirements of and exceptions and limitations to tax amnesty program; defining certain terms; authorizing tax commissioner to do all things necessary to implement two-month tax amnesty program during current calendar year; requiring tax commissioner to report certain information to Legislature and governor after conclusion of tax amnesty program; authorizing tax commissioner to suspend a business registration certificate for failure to pay delinquent personal property taxes; requiring the tax commissioner to refuse to issue or renew a business registration certificate upon certain notice from the sheriff that the registrant has not paid delinquent personal property taxes; requiring tax commissioner to propose legislative rules establishing ancillary procedures for the tax commissioner's suspension of business registration certificates; requiring sheriff to decline to receive current taxes due on any personal property where a prior year's taxes are unpaid; and providing language for inclusion in publication giving notice of that license to do business in state will be suspended for failure to pay delinquent personal property taxes.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Senate Bill No. 148, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 148) passed with its Senate amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2004, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 161, Creating Model Health Plan for Uninsurable Individuals Act.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47-5, §33-47-6, §33-47-7, §33-47-8, §33-47-9, §33-47-10, §33-47-11 and §33-47-12, all to read as follows:
ARTICLE 47. MODEL HEALTH PLAN FOR UNINSURABLE INDIVIDUALS ACT.
§33-47-1. Definitions
.
     For purposes of this article:
     (a) "Board" means the board of directors of the plan.
     (b) "Church plan" has the meaning given such term under Section 3(33) of the federal Employee Retirement Income Security Act of 1974.
     (c) "Commissioner" means the insurance commissioner of this state.
     (d) (1) "Creditable coverage" means, with respect to an individual, coverage of the individual provided under any of the following:
     (A) A group health plan;
     (B) Health insurance coverage;
     (C) Part A or Part B of Title XVIII of the Social Security Act;
     (D) Title XIX of the Social Security Act, other than coverage consisting solely of benefits under Section 1928;
     (E) Chapter 55 of Title 10, U. S. C.;
     (F) A medical care program of the federal Indian health service or of a tribal organization:
     (G) A state health benefits risk pool;
     (H) A health plan offered under Chapter 89 of Title 5, U. S. C.;
     (I) A public health plan as defined in federal regulations; or
     (J) A health benefit plan under Section 5(e) of the federal Peace Corps Act (22 U. S. C. 2504 (e)).
     (2) A period of creditable coverage shall not be counted, with respect to the enrollment of an individual who seeks coverage under this article, if, after such period and before the enrollment date, the individual experiences a significant break in coverage.
     (e) "Department" means the insurance commissioner of West Virginia.
     (f) "Dependent" means a resident spouse or resident unmarried child under the age of nineteen years, a child who is a student under the age of twenty-three years and who is financially dependent upon the parent, or a child of any age who is disabled and dependent upon the parent.
     (g) "Federally defined eligible individual" means an individual:
     (1) For whom, as of the date on which the individual seeks coverage under this article, the aggregate of the periods of creditable coverage as defined in subdivision (d) of this section is eighteen or more months;
     (2) Whose most recent prior creditable coverage was under a group health plan, governmental plan, church plan or health insurance coverage offered in connection with such a plan;
     (3) Who is not eligible for coverage under a group health plan, Part A or Part B of Title XVIII of the Social Security Act (Medicare), or a state plan under Title XIX of the Act (Medicaid) or any successor program, and who does not have other health insurance coverage;
     (4) With respect to whom the most recent coverage within the period of aggregate creditable coverage was not terminated based on a factor relating to nonpayment of premiums or fraud;
     (5) Who, if offered the option of continuation coverage under a COBRA continuation provision or under a similar state program, elected this coverage; and
     (6) Who has exhausted the continuation coverage under this provision or program, if the individual elected the continuation coverage described in paragraph (5) of this subdivision.
     (h) "Governmental plan" has the meaning given such term under Section 3(32) of the federal Employee Retirement Income Security Act of 1974 and any federal government plan.
     (i) "Group health plan" means an employee welfare benefit plan as defined in Section 3(1) of the federal Employee Retirement Income Security Act of 1974 to the extent that the plan provides medical care as defined in subdivision (m) of this section and including items and services paid for as medical care to employees or their dependents as defined under the terms of the plan directly or through insurance, reimbursement or otherwise.
     (j) (1) "Health insurance coverage" means any hospital and medical expense incurred policy, nonprofit health care service plan contract, health maintenance organization subscriber contract or any other health care plan or arrangement that pays for or furnishes medical or health care services whether by insurance or otherwise.
     (2) "Health insurance coverage" shall not include one or more, or any combination, of the following:
     (A) Coverage only for accident or disability income insurance, or any combination thereof;
     (B) Coverage issued as a supplement to liability insurance;
     (C) Liability insurance, including general liability insurance and automobile liability insurance;
     (D) Workers' compensation or similar insurance;
     (E) Automobile medical payment insurance;
     (F) Credit-only insurance;
     (G) Coverage for on-site medical clinics; and
     (H) Other similar insurance coverage, specified in federal regulations issued pursuant to PL 104-191, under which benefits for medical care are secondary or incidental to other insurance benefits.
     (3) "Health insurance coverage" shall not include the following benefits if they are provided under a separate policy, certificate or contract of insurance or are otherwise not an integral part of the coverage:
     (A) Limited scope dental or vision benefits;
     (B) Benefits for long-term care, nursing home care, home health care, community-based care or any combination thereof; or
     (C) Other similar, limited benefits specified in federal regulations issued pursuant to PL 104-191.
     (4) "Health insurance coverage" shall not include the following benefits if the benefits are provided under a separate policy, certificate or contract of insurance, there is no coordination between the provision of the benefits and any exclusion of benefits under any group health plan maintained by the same plan sponsor, and the benefits are paid with respect to an event without regard to whether benefits are provided with respect to such an event under any group health plan maintained by the same plan sponsor:
     (A) Coverage only for a specified disease or illness; or
     (B) Hospital indemnity or other fixed indemnity insurance.
     (5) "Health insurance coverage" shall not include the following if offered as a separate policy, certificate or contract of insurance:
     (A) Medicare supplemental health insurance as defined under Section 1882(g)(1) of the Social Security Act;
     (B) Coverage supplemental to the coverage provided under Chapter 55 of Title 10, U. S. C. (Civilian Health and Medical Program of the Uniformed Services (CHAMPUS)); or
     (C) Similar supplemental coverage provided to coverage under a group health plan.
     (k) "Health maintenance organization" means an organization licensed in this state pursuant to the provisions of article twenty-five-a of this chapter.
     (l) "Insurer" means any entity that provides health insurance coverage in this state. For the purposes of this article, insurer includes an insurance company, a prepaid limited health service organization as operating under a certificate of authority pursuant to article twenty-five-d of this chapter, a fraternal benefit society, a health maintenance organization and any other entity providing a plan of health insurance coverage or health benefits subject to state insurance regulation.
     (m) "Medical care" means amounts paid for:
     (1) The diagnosis, care, mitigation, treatment or prevention of disease, or amounts paid for the purpose of affecting any structure or function of the body;
     (2) Transportation primarily for and essential to medical care referred to in paragraph (1) of this subdivision; and
     (3) Insurance covering medical referred to in paragraphs (1) and (2) of this subdivision.
     (n) "Medicare" means coverage under both Parts A and B of Title XVIII of the Social Security Act, 42 U. S. C. 1395 et seq., as amended.
     (o) "Participating insurer" means any insurer providing health insurance coverage to residents of this state.
     (p) "Plan" means the West Virginia health insurance plan as created in section two of this article.
     (q) "Plan of operation" means the articles, bylaws and operating rules and procedures adopted by the board pursuant to section two of this article.
     (r) "Resident" means an individual who has been legally domiciled in this state for a period of at least thirty days, except that for a federally defined eligible individual, there shall not be a thirty-day requirement. "Resident" also means an individual who is legally domiciled in this state on the date of application to the plan and is eligible for the credit for health insurance costs under Section 35 of the Internal Revenue Code of 1986.
     (s) "Significant break in coverage" means a period of sixty-three consecutive days during all of which the individual does not have any creditable coverage, except that neither a waiting period nor an affiliation period is taken into account in determining a significant break in coverage.
     Terms within this article with meaning ascribed by federal law shall have the meaning as in effect in federal law the thirty-first day of December, two thousand three.
§33-47-2. Operation of the plan.
     (a) There is hereby created within the West Virginia department of tax and revenue a body corporate and politic to be known as the West Virginia health insurance plan which shall be deemed to be an instrumentality of the state and a public corporation. The West Virginia health insurance plan shall have perpetual existence and any change in the name or composition of the plan shall in no way impair the obligations of any contracts existing under this chapter.
     (b) The plan shall operate subject to the supervision and control of the board. The board shall consist of the commissioner or his or her designated representative, who shall serve as an ex officio member of the board and shall be its chairperson, and six members appointed by the governor. At least two board members shall be individuals, or the parent, spouse or child of individuals, reasonably expected to qualify for coverage by the plan. At least two board members shall be representatives of insurers. At least one board member shall be a hospital administrator. A majority of the board shall be composed of individuals who are not representatives of insurers or health care providers.
     (c) The initial board members shall be appointed as follows: One third of the members to serve a term of two years; one third of the members to serve a term of four years; and one third of the members to serve a term of six years. Subsequent board members shall serve for a term of three years. A board member's term shall continue until his or her successor is appointed.
     (d) Vacancies in the board shall be filled by the governor. Board members may be removed by the governor for cause.
     (e) Board members shall not be compensated in their capacity as board members but shall be reimbursed for reasonable expenses incurred in the necessary performance of their duties.
     (f) The board shall submit to the commissioner a plan of operation for the plan and any amendments thereto necessary or suitable to assure the fair, reasonable and equitable administration of the plan. The plan of operation shall become effective upon approval in writing by the commissioner consistent with the date on which the coverage under this article must be made available. If the board fails to submit a suitable plan of operation within one hundred eighty days after the appointment of the board of directors, or at any time thereafter fails to submit suitable amendments to the plan of operation, the commissioner shall adopt and promulgate such rules as are necessary or advisable to effectuate the provisions of this section. Such rules shall continue in force until modified by the commissioner or superseded by a plan of operation submitted by the board and approved by the commissioner.
     (g) The plan of operation shall:
     (1) Establish procedures for operation of the plan: Provided, That the plan shall be operated so as to qualify as an acceptable alternative mechanism under the federal Health Insurance Portability and Accountability Act, and as an option to provide health insurance coverage for individuals eligible for the federal health care tax credit established by the federal Trade Adjustment Assistance Reform Act of 2002 (Section 35 of the Internal Revenue Code of 1986);
     (2) Establish procedures for selecting an administrator in accordance with section six of this article;
     (3) Establish procedures to create a fund, under management of the board, for administrative expenses;
     (4) Establish procedures for the handling, accounting and auditing of assets, moneys and claims of the plan and the plan administrator;
     (5) Develop and implement a program to publicize the existence of the plan, the eligibility requirements and procedures for enrollment and to maintain public awareness of the plan;
     (6) Establish procedures under which applicants and participants may have grievances reviewed by a grievance committee appointed by the board. The grievances shall be reported to the board after completion of the review. The board shall retain all written complaints regarding the plan for at least three years; and
     (7) Provide for other matters as may be necessary and proper for the execution of the board's powers, duties and obligations under this article.
     (h) The plan shall have the general powers and authority granted under the laws of this state to health insurers and, in addition thereto, the specific authority to:
     (1) Enter into contracts as are necessary or proper to carry out the provisions and purposes of this article, including the authority, with the approval of the commissioner, to enter into contracts with similar plans of other states for the joint performance of common administrative functions, or with persons or other organizations for the performance of administrative functions;
     (2) Sue or be sued, including taking any legal actions necessary or proper to recover or collect assessments due the plan;
     (3) Take such legal action as necessary:
     (A) To avoid the payment of improper claims against the plan or the coverage provided by or through the plan;
     (B) To recover any amounts erroneously or improperly paid by the plan;
     (C) To recover any amounts paid by the plan as a result of mistake of fact or law; or
     (D) To recover other amounts due the plan;
     (4) Establish, and modify, from time to time, as appropriate, rates, rate schedules, rate adjustments, expense allowances, agents' referral fees, claim reserve formulas and any other actuarial function appropriate to the operation of the plan. Rates and rate schedules may be adjusted for appropriate factors such as age, sex and geographic variation in claim cost and shall take into consideration appropriate factors in accordance with established actuarial and underwriting practices;
     (5) Issue policies of insurance in accordance with the requirements of this article;
     (6) Appoint appropriate legal, actuarial and other committees as necessary to provide technical assistance in the operation of the plan, policy and other contract design and any other function within the authority of the pool;
     (7) Borrow money to effect the purposes of the plan. Any notes or other evidence of indebtedness of the plan not in default shall be legal investments for insurers and may be carried as admitted assets;
     (8) Establish rules, conditions and procedures for reinsuring risks of participating insurers desiring to issue plan coverages in their own name. Provision of reinsurance shall not subject the plan to any of the capital or surplus requirements, if any, otherwise applicable to reinsurers;
     (9) Employ and fix the compensation of employees;
     (10) Prepare and distribute certificate of eligibility forms and enrollment instruction forms to insurance procedures and to the general public;
     (11) Provide for reinsurance of risks incurred by the plan;
     (12) Issue additional types of health insurance policies to provide optional coverages, including medicare supplemental insurance;
     (13) Provide for and employ cost containment measures and requirements including, but not limited to, preadmission screening, second surgical opinion, concurrent utilization review and individual case management for the purpose of making the benefit plan more cost effective;
     (14) Design, utilize, contract or otherwise arrange for the delivery of cost-effective health care services, including establishing or contracting with preferred provider organizations, health maintenance organizations and other limited network provider arrangements; and
     (15) Adopt bylaws, policies and procedures as may be necessary or convenient for the implementation of this article and the operation of the plan.
     (i) The board shall make an annual report to the governor which shall also be filed with the Legislature. The report shall summarize the activities of the plan in the preceding calendar year, including the net written and earned premiums, plan enrollment, the expense of administration, and the paid and incurred losses.
     (j) Study and recommend to the Legislature in January, two thousand six, alternative funding mechanisms for the continuation of the health plan for uninsurable individuals.
     (k) Neither the board nor its employees shall be liable for any obligations of the plan. No member or employee of the board shall be liable, and no cause of action of any nature may arise against them, for any act or omission related to the performance of their powers and duties under this article, unless such act or omission constitutes willful or wanton misconduct. The board may provide in its bylaws or rules for indemnification of, and legal representation for, its members and employees.
§33-47-3. Establishment of rules.
     The board may promulgate rules, in accordance with article three, chapter twenty-nine-a of this code, as may be necessary to implement the provisions of this article.
§33-47-4. Eligibility.
     (a) (1) Any individual person who is and continues to be a resident shall be eligible for plan coverage if evidence is provided:
     (A) Of a notice of rejection or refusal to issue substantially similar insurance for health reasons by one insurer; or
     (B) Of a refusal by an insurer to issue insurance except at a rate exceeding the plan rate.
     (C) That the individual is legally domiciled in this state and is eligible for the credit for health insurance costs under Section 35 of the Internal Revenue Code of 1986.
     (2) Any federally defined eligible individual who has not experienced a significant break in coverage and who is and continues to be a resident shall be eligible for plan coverage.
     (3) A rejection or refusal by an insurer offering only stop loss, excess of loss or reinsurance coverage with respect to an applicant under subdivision (1) of this subsection shall not be sufficient evidence under this subsection.
     (b) The board shall promulgate a list of medical or health conditions for which a person shall be eligible for plan coverage without applying for health insurance coverage pursuant to subdivision (1), subsection (a) of this section. Persons who can demonstrate the existence or history of any medical or health conditions on the list promulgated by the board shall not be required to prove the evidence specified in said subdivision. The list shall be effective on the first day of the operation of the plan and may be amended, from time to time, as may be appropriate.
     (c) Each resident dependent of a person who is eligible for plan coverage shall also be eligible for plan coverage.
     (d) A person shall not be eligible for coverage under the plan if:
     (1) The person has or obtains health insurance coverage substantially similar to or more comprehensive than a plan policy or would be eligible to have coverage if the person elected to obtain it; except that:
     (A) A person may maintain other coverage for the period of time the person is satisfying any preexisting condition waiting period under a plan policy; and
     (B) A person may maintain plan coverage for the period of time the person is satisfying a preexisting condition waiting period under another health insurance policy intended to replace the plan policy;
     (2) The person is determined to be eligible for health care benefits under the state medicaid law;
     (3) The person has previously terminated plan coverage unless twelve months have lapsed since such terminations, except that this subdivision shall not apply with respect to an applicant who is a federally defined eligible individual;
     (4) The plan has paid out one million dollars in benefits on behalf of the person;
     (5) The person is an inmate or resident of a public institution, except that this subdivision shall not apply with respect to an applicant who is a federally defined eligible individual; or
     (6) The person's premiums are paid for or reimbursed under any government sponsored program or by any government agency or health care provider, except as an otherwise qualifying full-time employee, or dependent thereof, of a government agency or health care provider.
     (e) Coverage shall cease:
     (1) On the date a person is no longer a resident of this state;
     (2) On the date a person requests coverage to end;
     (3) Upon the death of the covered person;
     (4) On the date state law requires cancellation of the policy; or
     (5) At the option of the plan, thirty days after the plan makes any inquiry concerning the person's eligibility or place of residence to which the person does not reply.
     (f) Except under the circumstance described in subsection (d) of this section, a person who ceases to meet the eligibility requirements of this section may be terminated at the end of the policy period for which the necessary premiums have been paid.
§33-47-5. Unfair referral to plan.
     It shall constitute an unfair trade practice for the purposes of article eleven of this chapter for an insurer, insurance agent or insurance broker to refer an individual employee to the plan, or arrange for an individual employee to apply to the plan, for the purpose of separating that employee from group health insurance coverage provided in connection with the employee's employment.
§33-47-6. Plan administrator.
     (a) The board shall select a plan administrator through a competitive bidding process to administer the plan. The board shall evaluate bids submitted based on criteria established by the board which shall include:
     (1) The plan administrator's proven ability to handle health insurance coverage to individuals;
     (2) The efficiency and timeliness of the plan administrator's claim processing procedures;
     (3) An estimate of total charges for administering the plan;
     (4) The plan administrator's ability to apply effective cost containment programs and procedures and to administer the plan in a cost efficient manner; and
     (5) The financial condition and stability of the plan administrator.
     (b) (1) The plan administrator shall serve for a period specified in the contract between the plan and the plan administrator subject to removal for cause and subject to any terms, conditions and limitations of the contract between the plan and the plan administrator.
     (2) At least one year prior to the expiration of each period of service by a plan administrator, the board shall invite eligible entities, including the current plan administrator to submit bids to serve as the plan administrator. Selection of the plan administrator for the succeeding period shall be made at least six months prior to the end of the current period.
     (c) The plan administrator shall perform such functions relating to the plan as may be assigned to it, including:
     (1) Determination of eligibility;
     (2) Payment of claims;
     (3) Establishment of a premium billing procedure for collection of premium from persons covered under the plan; and
     (4) Other necessary functions to assure timely payment of benefits to covered persons under the plan.
     (d) The plan administrator shall submit regular reports to the board regarding the operation of the plan. The frequency, content and form of the report shall be specified in the contract between the board and the plan administrator.
     (e) Following the close of each calendar year, the plan administrator shall determine net written and earned premiums, the expense of administration and the paid and incurred losses for the year and report this information to the board and the commission on a form prescribed by the commissioner.
     (f) Notwithstanding any other provision in this section to the contrary, the board may elect to designate the public employees insurance agency as the plan administrator. If so designated, the public employees insurance agency shall provide the services set forth in subsection (c) of this section and shall be subject to the reporting requirements of subsections (d) and (e) of this section. The plan shall, if the public employees insurance agency is designated by the board as the plan administrator, reimburse health care providers at the same health care reimbursement rates then in effect for the West Virginia public employees insurance agency.
§33-47-7. Funding of the plan.
     (a) Premiums. --
     (1) The plan shall establish premium rates for plan coverage as provided in subdivision (2) of this subsection. Separate schedules of premium rates based on age, sex and geographical location may apply for individual risks. Premium rates and schedules shall be submitted to the commissioner for approval prior to use.
     (2) The plan, with the assistance of the commissioner, shall determine a standard risk rate by considering the premium rates charged by other insurers offering health insurance coverage to individuals. The standard risk rate shall be established using reasonable actuarial techniques, and shall reflect anticipated experience and expenses for such coverage. Initial rates for plan coverage shall not be less than one hundred twenty-five percent of rates established as applicable for individual standard risks. Subject to the limits provided in this subdivision, subsequent rates shall be established to provide fully for the expected costs of claims including recovery of prior losses, expenses of operation, investment income of claim reserves, and any other cost factors subject to the limitations described herein. In no event shall plan rates exceed one hundred fifty percent of rates applicable to individual standard risks.
     (b) Sources of additional revenue. --
     The plan may be additionally funded by an assessment on hospitals. Notwithstanding the provisions of subsection (c), section eight, article twenty-nine-b, chapter sixteen of this code and not to be construed as in conflict therewith, the health care authority is authorized to increase the assessment obligation of hospitals. The increase shall not exceed a maximum of twenty-five percent above the one tenth of one percent specified in this code section. The entire assessment, including the increase, shall be collected as specified in subsection (c), section eight, article twenty-nine-b, chapter sixteen of this code. Upon receipt of the assessment fees, the health care authority shall transfer all proceeds generated from the new fee collected to a special revenue account established in the state treasury by the commissioner and designated the "West Virginia Health Insurance Plan Account" for the sole purpose of providing additional funding for the plan.
§33-47-8. Benefits.
     (a) The plan shall offer health care coverage consistent with comprehensive coverage to every eligible person who is not eligible for medicare. The coverage to be issued by the plan, its schedule of benefits, exclusions and other limitations shall be established by the board and subject to the approval of the commissioner.
     (b) In establishing the plan coverage, the board shall take into consideration the levels of health insurance coverage provided in the state and medical economic factors as may be deemed appropriate; and promulgate benefit levels, deductibles, coinsurance factors, exclusions and limitations determined to be generally reflective of and commensurate with health insurance coverage provided through a representative number of large employers in the state.
     (c) The board may adjust any deductibles and coinsurance factors annually according to the medical component of the consumer price index.
     (d) Preexisting conditions. --
     (1) Plan coverage shall exclude charges or expenses incurred during the first six months following the effective date of coverage as to any condition for which medical advice, care or treatment was recommended or received as to such conditions during the six-month period immediately preceding the effective date of coverage, except that no preexisting condition exclusion shall be applied to a federally defined eligible individual.
     (2) Subject to subdivision (1) of this subsection, the preexisting condition exclusions shall be waived to the extent that similar exclusions, if any, have been satisfied under any prior health insurance coverage which was involuntarily terminated; provided, that:
     (A) Application for pool coverage is made not later than sixty-three days following such involuntary termination and, in such case, coverage in the plan shall be effective from the date on which such prior coverage was terminated; and
     (B) The applicant is not eligible for continuation or conversion rights that would provide coverage substantially similar to plan coverage.
     (e) Nonduplication of benefits. --
     (1) The plan shall be payer of last resort of benefits whenever any other benefit or source of third-party payment is available. Benefits otherwise payable under plan coverage shall be reduced by all amounts paid or payable through any other health insurance coverage and by all hospital and medical expense benefits paid or payable under any workers' compensation coverage, automobile medical payment or liability insurance whether provided on the basis of fault or nonfault, and by any hospital or medical benefits paid or payable under or provided pursuant to any state or federal law or program.
     (2) The plan shall have a cause of action against an eligible person for the recovery of the amount of benefits paid that are not for covered expenses. Benefits due from the plan may be reduced or refused as a set-off against any amount recoverable under this subdivision.
§33-47-9. Collective action.
     Neither the participation in the plan as participating insurers, the establishment of rates, forms or procedures nor any other joint or collective action required by this article shall be the basis of any legal action, criminal or civil liability or penalty against the plan or any participating insurer.
§33-47-10. Taxation.
     The plan established pursuant to this article shall be exempt from the premium taxes assessed under sections fourteen and fourteen-a, article three of this chapter.
§33-47-11. Continuation of model health plan for uninsurable individuals.

     The model health plan for uninsurable individuals shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand seven, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§33-47-12. Effective date.
     The provisions of this article shall become effective on the first day of July, two thousand four.;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 161--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §33-47-1, §33-47-2, §33-47-3, §33-47-4, §33-47- 5, §33-47-6, §33-47-7, §33-47-8, §33-47-9, §33-47-10, §33-47-11 and §33-47-12, all relating to creating a West Virginia insurance plan; defining terms; creating a body corporate and politic to be known as the West Virginia health insurance plan; providing for its supervision and control by a board of directors to be appointed by the governor; providing the board of directors administrative requirements; requiring a plan of operation to be approved by the insurance commissioner; requiring the plan to be operated so as to qualify as an acceptable alternative mechanism under the federal Health Insurance Portability and Accountability Act and as an option to provide health insurance coverage for individuals eligible for the federal Health Care Tax Credit; describing procedural requirements for the plan; describing powers of the plan; requiring the board to annually report to the governor summarizing preceding year activities; shielding the board and its employees from any liability resulting from obligations of the plan; authorizing the board of directors to promulgate rules to implement the act; defining eligibility for persons seeking coverage from the plan and when such coverage shall cease; making it an unfair trade practice to arrange for an employee to apply for coverage with the plan for the purpose of separating that employee from group health insurance coverage provided in connection with the employee's employment; providing for the selection of a plan administrator; providing for funding for the plan; defining the benefits to be offered; providing that participation in the plan by an insurer is not the basis of any legal action against the participating insurer; providing that the plan is exempt from taxes; and providing an effective date.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 161, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 161) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect July 1, 2004.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 161) takes effect July 1, 2004.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 163, Establishing Water Resources Protection Act.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. WATER RESOURCES PROTECTION ACT.
§22-25-1. Short title; legislative findings.

     (a) Short title. -- This article may be known and cited as the "Water Resources Protection Act".
     (b) Legislative findings. --
     (1) The West Virginia Legislature finds that it is the public policy of the state of West Virginia to protect and conserve the water resources for the state and to provide for the public welfare. The state's water resources are vital natural resources of the state that are essential to maintain, preserve and promote quality of life and economic vitality of the state.
     (2) The West Virginia Legislature further finds that it is the public policy of the state that the water resources of the state be available for the benefit of the people of West Virginia, consistent with and preserving all other existing rights and remedies recognized in common law or by statute, while also preserving this resource within its sovereign powers for the common good.
§22-25-2. Definitions.
     
For purposes of this article, the following words have the meanings assigned unless the context indicates otherwise:
     (a) "Beneficial use" means uses that include, but are not limited to, public or private water supplies, agriculture, tourism, commercial, industrial, coal, oil and gas and other mineral extraction, preservation of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation and preservation of cultural values.
     (b) "Consumptive withdrawal" means any withdrawal of water which returns less water to the water body than is withdrawn.
     (c) "Farm use" means irrigation of any land used for general farming, forage, aquiculture, pasture, orchards, nurseries, the provision of water supply for farm animals, poultry farming or any other activity conducted in the course of a farming operation.
     (d) "Interbasin transfer" means the permanent removal of water from the watershed from which it is withdrawn.
     (e) "Maximum potential" means the maximum designed capacity of a facility to withdraw water under its physical and operational design.
     (f) "Person", "persons" or "people" means an individual, public and private business or industry, public or private water service and governmental entity.
     (g) "Nonconsumptive withdrawal" means any withdrawal of water which is not a consumptive withdrawal as defined in this section.
     (h) "Secretary" means the secretary of the department of environmental protection or his or her designee.
     (i) "Water resources", "water" or "waters" means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction, and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial settling basins and ponds and waste treatment facilities are excluded from the waters of the state.
     (j) "Watershed" means a hydrologic unit utilized by the United States department of interior's geological survey, adopted in 1974, as a framework for detailed water and related land-resource planning, denoted by an eight digit hydrologic unit code, and by which West Virginia is as of the effective date of the act is divided into thirty-two separate hydrologic units.
     (k) "Withdrawal" means the removal or capture of water from a water resource of the state regardless of whether it is consumptive or nonconsumptive: Provided, That water encountered during coal, oil, gas or other mineral extraction and diverted but not used for any purpose is not deemed a withdrawal.
§22-25-3. Waters claimed by state; water resources protection survey; need for study; registration requirements; agency cooperation; information gathering.

     (a) The waters of the state of West Virginia are hereby claimed as valuable public natural resources held by the state for the use and benefit of its citizens. The state shall manage the quantity of its waters effectively for present and future use and enjoyment and for the protection of the environment. Therefore, it is necessary for the state to determine the nature and extent of its water resources, the quantity of water being withdrawn or otherwise used and the nature of the withdrawals or other uses: Provided, That no provisions of this article may be construed to amend or limit riparian rights, the right of capture, the right of possession or any other rights and remedies created by statute or common law in existence on the date of the enactment of this article.
     (b) The secretary shall conduct a water resources survey of consumptive and nonconsumptive surface water and groundwater withdrawals in this state. The secretary shall determine the form and format of the information submitted, including the use of electronic submissions. The survey shall collect information covering the years two thousand three, two thousand four and two thousand five. The secretary shall establish a statewide registration program to monitor large quantity users of water resources of this state beginning in two thousand six.
     (c) Beginning in the year two thousand three, every person utilizing the state's water resources whose withdrawal from a water resource during any month exceeds seven hundred fifty thousand gallons, except those who purchase water from a public or private water utility or other service that is reporting its total withdrawal, shall provide all requested information regarding withdrawals of the water resource. Multiple withdrawals of water from a particular water resource that are made or controlled by a single person and used at one facility or location shall be considered a single withdrawal of water. Water withdrawals for self-supplied farm use and private households will be estimated. Water utilities regulated by the public service commission pursuant to article two, chapter twenty-four of the code are exempted from providing information on interbasin transfers to the extent those transfers are necessary to provide water utility services within the state.
     (d) The secretary shall make a good faith effort to obtain survey and registration information from persons who are withdrawing water from an in-state water resource but who are located outside the state borders.
     (e) All state agencies that have a regulatory, research or other function relating to water resources, including, but not limited to, the state geological and economic survey, the division of natural resources, the public service commission, the bureau for public health, the commissioner of the department of agriculture, the office of emergency services, Marshall university and West Virginia university may enter into interagency agreements with the secretary and shall cooperate by: (i) Providing information relating to the water resources of the state; and (ii) providing any necessary assistance to the secretary in effectuating the purposes of this article. The secretary shall determine the form and format of the information submitted by these agencies.
     (f) Persons required to participate in the survey and registration shall provide any reasonably available information on stream flow conditions that impact withdrawal rates.
     (g) Persons required to participate in the survey and registration shall provide the most accurate information available on water withdrawal during seasonal conditions and future potential maximum withdrawals or other information that the secretary determines is necessary for the completion of the survey or registration: Provided, That a coal-fired electric generating facility shall also report the nominal design capacity of the facility, which is the quantity of water withdrawn by the facility's intake pumps necessary to operate the facility during a calendar day.
     (h) The secretary shall, to the extent reliable water withdrawal data is reasonably available from sources other than persons required to provide data and participate in the survey and registration, utilize that data to fulfill the requirements of this section. If the data is not reasonably available to the secretary, persons required to participate in the survey and registration are required to provide the data. Registered persons that report withdrawals on an annual basis for a period of three consecutive years are not required to register further withdrawals unless the amount withdrawn annually varies by more than ten percent from the three-year average. Altering locations of intakes and discharge points that result in an impact of the withdrawal of the watershed by an amount of ten percent or more from the consecutive three-year average shall also be reported.
     (i) The secretary shall report regularly to the joint legislative oversight commission on state water resources to advise the commission of the progress of the survey as well as any problems that may be encountered in conducting the survey and to make recommendations on policy and statutory changes that may be needed.
     (j) Upon completion of the survey, the secretary shall file a final report with the joint committee on government and finance no later than the thirty-first day of December, two thousand six. In preparing the final report the secretary shall consult with the commissioner of the department of agriculture, the bureau for public health, the division of natural resources and the public service commission. The final report shall include the following:
     (1) To the extent the information is available, the location and quantity of all surface water and groundwater resources in this state;
     (2) A discussion of the consumptive and nonconsumptive withdrawals of surface water and groundwater in this state;
     (3) A listing of each person whose consumptive or nonconsumptive withdrawal during any single month during the calender year exceeds seven hundred fifty thousand gallons, including the amount of water used, location of the water resource, the nature of the use, location of each intake and discharge point by longitude and latitude where available and, if the use involves more than one watershed or basin, the watersheds or basins involved and the amount transferred;
     (4) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where a drought or flood has occurred or is likely to occur that threatens the beneficial use of the surface water or groundwater in the area;
     (5) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow conditions to the detriment of the water resource;
     (6) Discussion of a potential groundwater well network that provides indicators that groundwater levels in an area are declining or are expected to decline excessively;
     (7) Potential growth areas where competition for water resources may be expected;
     (8) Any occurrence of two or more withdrawals that are interfering or may reasonably be expected to interfere with one another;
     (9) Discussion of practices or methods persons have implemented to reduce water withdrawals; and
     (10) Any other information that may be beneficial in adequately assessing water availability and withdrawal and in determining the need for and the preparation of water resources plans.
     (k) In addition to any requirements for completion of the survey established by the secretary, the survey must accurately reflect both actual and maximum potential water withdrawal. Actual withdrawal shall be established through metering, measuring or alternative accepted scientific methods to obtain a reasonable estimate or indirect calculation of actual use.
     (l) Upon completion of the survey, the secretary shall make recommendations to the joint legislative oversight commission created in section five of this article relating to the need to implement a water quantity management strategy for the state or regions of the state where the quantity of water resources are found to be currently stressed or likely to be stressed due to emerging beneficial or other uses, ecological conditions or other factors requiring the development of a strategy for management of these water resources. The report shall include an analysis on the costs and benefits upon persons potentially impacted by the implementation of a water quantity management strategy.
     (m) The secretary may propose rules pursuant to article three, chapter twenty-nine-a of this code as necessary to implement the survey and registration requirements of this article.
     (n) The secretary is authorized to enter into cooperative agreements with the United States geological survey to obtain federal matching funds, conduct research and analyze survey and registration data and other agreements as may be necessary to carry out his or her duties under this article.
§22-25-4. Confidentiality.
     (a) Information required to be submitted by a person as part of the water withdrawal survey and registration that may be a trade secret, or contain protected information relating to homeland security, or be subject to another exemption provided by the state freedom of information act, may be deemed confidential. Each such document shall be identified by that person as confidential information. The person claiming confidentiality shall provide written justification to the secretary at the time the information is submitted stating the reasons for confidentiality and why the information should not be released or made public. The secretary has the discretion to approve or deny requests for confidentiality as prescribed by this section.
     (b) In addition to records or documents that may be considered confidential under article one, chapter twenty-nine-b of this code, confidential information means records, reports or information, or a particular portion thereof, that if made public would:
     (1) Divulge production or sales figures or methods, processes or production unique to the submitting person;
     (2) Otherwise tend to adversely affect the competitive position of a person by revealing trade secrets, including intellectual property rights; or
     (3) Present a threat to the safety and security of any water supply, including information concerning water supply vulnerability assessments.
     (c) Information designated as confidential and the written justification shall be maintained in a file separate from the general records related to the person.
     (d) Information designated as confidential may be released when the information is contained in a report in which the identity of the person has been removed and the confidential information is aggregated by hydrologic unit or region.
     (e) Information designated as confidential may be released to governmental entities, their employees and agents when compiling and analyzing survey and registration information and as may be necessary to develop the legislative report required by this section or to develop water resources plans. Any governmental entity or person receiving information designated confidential shall protect the information as confidential.
     (f) Upon receipt of a request for information that has been designated confidential and prior to making a determination to grant or deny the request, the secretary shall notify the person claiming confidentiality of the request and may allow the person an opportunity to respond to the request in writing within five days.
     (g) All requests to inspect or copy documents shall state with reasonable specificity the documents or type of documents sought to be inspected or copied. Within ten business days of the receipt of a request, the secretary shall: (1) Advise the person making the request in writing of the time and place where the person may inspect and copy the documents which, if the request addresses information claimed as confidential, may not be sooner than twenty days following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the person claiming confidentiality; or (2) deny the request, stating in writing the reasons for denial. If the request addresses information claimed as confidential, then notice of the action taken pursuant to this subsection shall also be provided to the person asserting the claim of confidentiality.
     (h) Any person adversely affected by a determination regarding confidential information under this article may appeal the determination to the appropriate circuit court pursuant to the provisions of article five, chapter twenty-nine-a of this code. The filing of a timely notice of appeal shall stay any determination to disclose confidential information pending a final decision on appeal. The scope of review is limited to the question of whether the portion of the records, reports, data or other information sought to be deemed confidential, inspected or copied is entitled to be treated as confidential under this section. The secretary shall afford evidentiary protection in appeals as necessary to protect the confidentiality of the information at issue, including the use of in camera proceedings and the sealing of records when appropriate.
§22-25-5. Joint legislative oversight commission on state water resources.

     
(a) The president of the Senate and the speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a joint legislative oversight commission charged with immediate and ongoing oversight of the water resources survey and registration. This commission shall be known as the "Joint Legislative Oversight Commission on State Water Resources" and shall regularly investigate and monitor all matters relating to the water resources survey and the need for a water resources strategy and policy.
     (b) The expenses of the commission, including the cost of conducting the survey and monitoring any subsequent strategy and those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel, are to be approved by the joint committee on government and finance and paid from legislative appropriations.
     (c) The secretary shall report, at a minimum of quarterly, in sufficient detail for the commission to monitor the water resources survey and to develop recommendations resulting from the survey. The secretary shall submit an annual report to the commission by the thirty-first day of December each year. The secretary shall also file a final report on the water resources survey no later than the thirty-first day of December, two thousand six.
§22-25-6. Mandatory survey and registration compliance.
     (a) The water resources survey and subsequent registry will provide critical information for protection of the state's water resources and, thus, mandatory compliance with the survey and registry is necessary.
     (b) Any person who fails to complete the survey or register, provides false or misleading information on the survey or registration, fails to provide other information as required by this article may be subject to a civil administrative penalty not to exceed five thousand dollars to be collected by the secretary consistent with the secretary's authority pursuant to this chapter. Every thirty days after the initial imposition of the civil administrative penalty, another penalty may be assessed if the information is not provided. The secretary shall provide written notice of failure to comply with this section thirty days prior to assessing the first administrative penalty.;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 163--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §22-25-1, §22-25-2, §22-25-3, §22-25-4, §22-25- 5 and §22-25-6, all relating to establishing the water resources protection act; providing legislative findings; finding that the state reserves a sovereign interest in the waters of the state as a valuable public resource; defining terms; declaring the state shall claim and protect state waters for the use and benefit of its citizens; providing for preservation of common law rights; providing that a water use survey and registration of large users of state waters be undertaken by the secretary of the department of environmental protection; requiring the secretary to coordinate survey with state agencies and report to a legislative oversight commission; requiring persons making withdrawals exceeding seven hundred fifty thousand gallons per month to participate in survey and registration; requiring the secretary to use reasonable alternatives for estimating usage; requiring persons participating in survey and registration to submit accurate information; providing limited exceptions to survey and registration participation; authorizing the secretary to coordinate with other state agencies and the United States geological survey; directing the division of environmental protection to propose a strategy for water management; authorizing secretary of division of environmental protection to promulgate rules; establishing confidentiality of submitted information and exceptions; providing criteria for requesting and receiving confidentiality designation; establishing requirements for requesting confidential documents and appeal process; establishing a joint legislative oversight commission to monitor survey and develop policies; and providing civil penalties for noncompliance.
     On motion of Senator Fanning, the following amendment to the House of Delegates amendments to the bill (Eng. Com. Sub. for S. B. No. 163) was reported by the Clerk and adopted:
     On page one, by striking out everything after the article heading and inserting in lieu thereof the following:
§22-25-1. Short title; legislative findings.

     (a) Short title. -- This article may be known and cited as the "Water Resources Protection Act".
     (b) Legislative findings. --
     (1) The West Virginia Legislature finds that it is the public policy of the state of West Virginia to protect and conserve the water resources for the state and to provide for the public welfare. The state's water resources are vital natural resources of the state that are essential to maintain, preserve and promote quality of life and economic vitality of the state.
     (2) The West Virginia Legislature further finds that it is the public policy of the state that the water resources of the state be available for the benefit of the citizens of West Virginia, consistent with and preserving all other existing rights and remedies recognized in common law or by statute, while also preserving this resource within its sovereign powers for the common good.
§22-25-2. Definitions.
     
For purposes of this article, the following words have the meanings assigned unless the context indicates otherwise:
     (a) "Beneficial use" means uses that include, but are not limited to, public or private water supplies, agriculture, tourism, commercial, industrial, coal, oil and gas and other mineral extraction, preservation of fish and wildlife habitat, maintenance of waste assimilation, recreation, navigation and preservation of cultural values.
     (b) "Consumptive withdrawal" means any withdrawal of water which returns less water to the water body than is withdrawn.
     (c) "Farm use" means irrigation of any land used for general farming, forage, aquiculture, pasture, orchards, nurseries, the provision of water supply for farm animals, poultry farming or any other activity conducted in the course of a farming operation.
     (d) "Interbasin transfer" means the permanent removal of water from the watershed from which it is withdrawn.
     (e) "Maximum potential" means the maximum designed capacity of a facility to withdraw water under its physical and operational design.
     (f) "Person", "persons" or "people" means an individual, public and private business or industry, public or private water service and governmental entity.
     (g) "Nonconsumptive withdrawal" means any withdrawal of water which is not a consumptive withdrawal as defined in this section.
     (h) "Secretary" means the secretary of the department of environmental protection or his or her designee.
     (i) "Water resources", "water" or "waters" means any and all water on or beneath the surface of the ground, whether percolating, standing, diffused or flowing, wholly or partially within this state, or bordering this state and within its jurisdiction, and includes, without limiting the generality of the foregoing, natural or artificial lakes, rivers, streams, creeks, branches, brooks, ponds, impounding reservoirs, springs, wells, watercourses and wetlands: Provided, That farm ponds, industrial settling basins and ponds and waste treatment facilities are excluded from the waters of the state.
     (j) "Watershed" means a hydrologic unit utilized by the United States department of interior's geological survey, adopted in 1974, as a framework for detailed water and related land-resource planning, denoted by an eight digit hydrologic unit code, and by which West Virginia is, as of the effective date of the act, divided into thirty-two separate hydrologic units.
     (k) "Withdrawal" means the removal or capture of water from a water resource of the state regardless of whether it is consumptive or nonconsumptive: Provided, That water encountered during coal, oil, gas or other mineral extraction and diverted, but not used for any purpose and not a factor in low flow conditions for any surface water or groundwater is not deemed a withdrawal.
§22-25-3. Waters claimed by state; water resources protection survey; need for study; registration requirements; agency cooperation; information gathering.

     (a) The waters of the state of West Virginia are hereby claimed as valuable public natural resources held by the state for the use and benefit of its citizens. The state shall manage the quantity of its waters effectively for present and future use and enjoyment and for the protection of the environment. Therefore, it is necessary for the state to determine the nature and extent of its water resources, the quantity of water being withdrawn or otherwise used and the nature of the withdrawals or other uses: Provided, That no provisions of this article may be construed to amend or limit any other rights and remedies created by statute or common law in existence on the date of the enactment of this article.
     (b) The secretary shall conduct a water resources survey of consumptive and nonconsumptive surface water and groundwater withdrawals in this state. The secretary shall determine the form and format of the information submitted, including the use of electronic submissions. The survey shall collect information covering the years two thousand three, two thousand four and two thousand five. The secretary shall establish a statewide registration program to monitor large quantity users of water resources of this state beginning in two thousand six.
     (c) Beginning in the year two thousand three, every person utilizing the state's water resources whose withdrawal from a water resource during any month exceeds seven hundred fifty thousand gallons, except those who purchase water from a public or private water utility or other service that is reporting its total withdrawal, shall provide all requested information regarding withdrawals of the water resource. Multiple withdrawals of water from a particular water resource that are made or controlled by a single person and used at one facility or location shall be considered a single withdrawal of water. Water withdrawals for self-supplied farm use and private households will be estimated. Water utilities regulated by the public service commission pursuant to article two, chapter twenty-four of the code are exempted from providing information on interbasin transfers to the extent those transfers are necessary to provide water utility services within the state.
     (d) The secretary shall make a good faith effort to obtain survey and registration information from persons who are withdrawing water from an in-state water resource but who are located outside the state borders.
     (e) All state agencies that have a regulatory, research or other function relating to water resources, including, but not limited to, the state geological and economic survey, the division of natural resources, the public service commission, the bureau for public health, the commissioner of the department of agriculture, the office of emergency services, Marshall university and West Virginia university may enter into interagency agreements with the secretary and shall cooperate by: (i) Providing information relating to the water resources of the state; and (ii) providing any necessary assistance to the secretary in effectuating the purposes of this article. The secretary shall determine the form and format of the information submitted by these agencies.
     (f) Persons required to participate in the survey and registration shall provide any reasonably available information on stream flow conditions that impact withdrawal rates.
     (g) Persons required to participate in the survey and registration shall provide the most accurate information available on water withdrawal during seasonal conditions and future potential maximum withdrawals or other information that the secretary determines is necessary for the completion of the survey or registration: Provided, That a coal-fired electric generating facility shall also report the nominal design capacity of the facility, which is the quantity of water withdrawn by the facility's intake pumps necessary to operate the facility during a calendar day.
     (h) The secretary shall, to the extent reliable water withdrawal data is reasonably available from sources other than persons required to provide data and participate in the survey and registration, utilize that data to fulfill the requirements of this section. If the data is not reasonably available to the secretary, persons required to participate in the survey and registration are required to provide the data. Registered persons that report withdrawals on an annual basis for a period of three consecutive years are not required to register further withdrawals unless the amount withdrawn annually varies by more than ten percent from the three-year average. Altering locations of intakes and discharge points that result in an impact to the withdrawal of the water resource by an amount of ten percent or more from the consecutive three-year average shall also be reported.
     (i) The secretary shall report regularly to the joint legislative oversight commission on state water resources to advise the commission of the progress of the survey as well as any problems that may be encountered in conducting the survey and to make recommendations on policy and statutory changes that may be needed.
     (j) Upon completion of the survey, the secretary shall file a final report with the joint committee on government and finance no later than the thirty-first day of December, two thousand six. In preparing the final report the secretary shall consult with the commissioner of the department of agriculture, the bureau for public health, the division of natural resources and the public service commission. The final report shall include the following:
     (1) To the extent the information is available, the location and quantity of all surface water and groundwater resources in this state;
     (2) A discussion of the consumptive and nonconsumptive withdrawals of surface water and groundwater in this state;
     (3) A listing of each person whose consumptive or nonconsumptive withdrawal during any single month during the calender year exceeds seven hundred fifty thousand gallons, including the amount of water used, location of the water resource, the nature of the use, location of each intake and discharge point by longitude and latitude where available and, if the use involves more than one watershed or basin, the watersheds or basins involved and the amount transferred;
     (4) A discussion of any area of concern regarding historical or current conditions that indicate a low-flow condition or where a drought or flood has occurred or is likely to occur that threatens the beneficial use of the surface water or groundwater in the area;
     (5) Current or potential in-stream or off-stream uses that contribute to or are likely to exacerbate natural low-flow conditions to the detriment of the water resource;
     (6) Discussion of a potential groundwater well network that provides indicators that groundwater levels in an area are declining or are expected to decline excessively;
     (7) Potential growth areas where competition for water resources may be expected;
     (8) Any occurrence of two or more withdrawals that are interfering or may reasonably be expected to interfere with one another;
     (9) Discussion of practices or methods persons have implemented to reduce water withdrawals; and
     (10) Any other information that may be beneficial in adequately assessing water availability and withdrawal and in determining the need for and the preparation of water resources plans.
     (k) In addition to any requirements for completion of the survey established by the secretary, the survey must accurately reflect both actual and maximum potential water withdrawal. Actual withdrawal shall be established through metering, measuring or alternative accepted scientific methods to obtain a reasonable estimate or indirect calculation of actual use.
     (l) Upon completion of the survey, the secretary shall make recommendations to the joint legislative oversight commission created in section five of this article relating to the need to implement a water quantity management strategy for the state or regions of the state where the quantity of water resources are found to be currently stressed or likely to be stressed due to emerging beneficial or other uses, ecological conditions or other factors requiring the development of a strategy for management of these water resources. The report shall include an analysis of the costs and benefits upon persons potentially impacted by the implementation of a water quantity management strategy.
     (m) The secretary may propose rules pursuant to article three, chapter twenty-nine-a of this code as necessary to implement the survey and registration requirements of this article.
     (o) The secretary is authorized to enter into cooperative agreements with the United States geological survey to obtain federal matching funds, conduct research and analyze survey and registration data and other agreements as may be necessary to carry out his or her duties under this article.
§22-25-4. Confidentiality.
     (a) Information required to be submitted by a person as part of the water withdrawal survey and registration that may be a trade secret, contain protected information relating to homeland security or be subject to another exemption provided by the state freedom of information act may be deemed confidential. Each such document shall be identified by that person as confidential information. The person claiming confidentiality shall provide written justification to the secretary at the time the information is submitted stating the reasons for confidentiality and why the information should not be released or made public. The secretary has the discretion to approve or deny requests for confidentiality as prescribed by this section.
     (b) In addition to records or documents that may be considered confidential under article one, chapter twenty-nine-b of this code, confidential information means records, reports or information, or a particular portion thereof, that if made public would:
     (1) Divulge production or sales figures or methods, processes or production unique to the submitting person;
     (2) Otherwise tend to adversely affect the competitive position of a person by revealing trade secrets, including intellectual property rights; or
     (3) Present a threat to the safety and security of any water supply, including information concerning water supply vulnerability assessments.
     (c) Information designated as confidential and the written justification shall be maintained in a file separate from the general records related to the person.
     (d) Information designated as confidential may be released when the information is contained in a report in which the identity of the person has been removed and the confidential information is aggregated by hydrologic unit or region.
     (e) Information designated as confidential may be released to governmental entities, their employees and agents when compiling and analyzing survey and registration information and as may be necessary to develop the legislative report required by this section or to develop water resources plans. Any governmental entity or person receiving information designated confidential shall protect the information as confidential.
     (f) Upon receipt of a request for information that has been designated confidential and prior to making a determination to grant or deny the request, the secretary shall notify the person claiming confidentiality of the request and may allow the person an opportunity to respond to the request in writing within five days.
     (g) All requests to inspect or copy documents shall state with reasonable specificity the documents or type of documents sought to be inspected or copied. Within ten business days of the receipt of a request, the secretary shall: (1) Advise the person making the request in writing of the time and place where the person may inspect and copy the documents which, if the request addresses information claimed as confidential, may not be sooner than twenty days following the date of the determination to disclose, unless an earlier disclosure date is agreed to by the person claiming confidentiality; or (2) deny the request, stating in writing the reasons for denial. If the request addresses information claimed as confidential, then notice of the action taken pursuant to this subsection shall also be provided to the person asserting the claim of confidentiality.
     (h) Any person adversely affected by a determination regarding confidential information under this article may appeal the determination to the appropriate circuit court pursuant to the provisions of article five, chapter twenty-nine-a of this code. The filing of a timely notice of appeal shall stay any determination to disclose confidential information pending a final decision on appeal. The scope of review is limited to the question of whether the portion of the records, reports, data or other information sought to be deemed confidential, inspected or copied is entitled to be treated as confidential under this section. The secretary shall afford evidentiary protection in appeals as necessary to protect the confidentiality of the information at issue, including the use of in camera proceedings and the sealing of records when appropriate.
§22-25-5. Joint legislative oversight commission on state water resources.

     
(a) The president of the Senate and the speaker of the House of Delegates shall each designate five members of their respective houses, at least one of whom shall be a member of the minority party, to serve on a joint legislative oversight commission charged with immediate and ongoing oversight of the water resources survey and registration. This commission shall be known as the "Joint Legislative Oversight Commission on State Water Resources" and shall regularly investigate and monitor all matters relating to the water resources survey and the need for a water resources strategy and policy.
     (b) The expenses of the commission, including the cost of conducting the survey and monitoring any subsequent strategy and those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel, are to be approved by the joint committee on government and finance and paid from legislative appropriations.
     (c) The secretary shall report, at a minimum of quarterly, in sufficient detail for the commission to monitor the water resources survey and to develop recommendations resulting from the survey. The secretary shall submit an annual report to the commission by the thirty-first day of December each year. The secretary shall also file a final report on the water resources survey no later than the thirty-first day of December, two thousand six.
§22-25-6. Mandatory survey and registration compliance.
     (a) The water resources survey and subsequent registry will provide critical information for protection of the state's water resources and, thus, mandatory compliance with the survey and registry is necessary.
     (b) Any person who fails to complete the survey or register, provides false or misleading information on the survey or registration, fails to provide other information as required by this article may be subject to a civil administrative penalty not to exceed five thousand dollars to be collected by the secretary consistent with the secretary's authority pursuant to this chapter. Every thirty days after the initial imposition of the civil administrative penalty, another penalty may be assessed if the information is not provided. The secretary shall provide written notice of failure to comply with this section thirty days prior to assessing the first administrative penalty.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Committee Substitute for Senate Bill No. 163, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 163) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its Senate amended title, and requested the concurrence of the Senate in the adoption thereof, as to
     Eng. Com. Sub. for House Bill No. 2088, Increasing the penalty for the manufacture, distribution or possession of certain controlled or counterfeit substances near a park.
     Whereupon, Senator White, from the committee of conference on matters of disagreement between the two houses, as to
     Eng. Com. Sub. for House Bill No. 2088, Increasing the penalty for the manufacture, distribution or possession of certain controlled or counterfeit substances near a park.
     Submitted the following report, which was received:
     Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed Committee Substitute for House Bill No. 2088 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
     That the House agree to the amendments of the Senate to the bill and its title.
                              Respectfully submitted,
     Richard Thompson, Chair, William F. Stemple, Tim Armstead, Conferees on the part of the House of Delegates.
     C. Randy White, Chair, Anita Skeens Caldwell, J. Frank Deem, Conferees of the part of the Senate.
     Senator White, Senate cochair of the committee of conference, was recognized to explain the report.
     Thereafter, on motion of Senator White, the report was taken up for immediate consideration and adopted.
     Engrossed Committee Substitute for House Bill No. 2088, as amended by the conference report, was then put upon its passage.
     On the passage of the bill, as amended, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2088) passed with its Senate amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, to take effect from passage, and requested the concurrence of the Senate in the adoption thereof, as to
     Eng. House Bill No. 4084, West Virginia Pharmaceutical Availability and Affordability Act.
     Whereupon, Senator Prezioso, from the committee of conference on matters of disagreement between the two houses, as to
     Eng. House Bill No. 4084, West Virginia Pharmaceutical Availability and Affordability Act.
     Submitted the following report, which was received:
     Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed House Bill No. 4084 having met, after full and free conference, have agreed to recommend to their respective houses, as follows:
     That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause, and agree to the same as follows:
     That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C-17, all to read as follows:
ARTICLE 3C. PHARMACEUTICAL AVAILABILITY AND AFFORDABILITY ACT OF 2004.

§5A-3C-1. Title.

     The provisions of this article shall be known as and referred to as the "West Virginia Pharmaceutical Availability and Affordability Act".
§5A-3C-2. Purpose.
     (a) The Legislature finds:
     (1) That the rising cost of prescription drugs has imposed a significant hardship on individuals who have limited budgets, are uninsured or who have prescription coverage that is unable to control costs successfully due to cost shifting and disparate pricing policies;
     (2) That the average cost per prescription for seniors rose significantly between one thousand nine hundred ninety-two and two thousand and is expected to continue increasing significantly through two thousand ten;
     (3) That there is an increasing need for citizens of West Virginia to have affordable access to prescription drugs; and
     (4) That the Legislature does not intend the imposition of the programs under this article to penalize or otherwise jeopardize the benefits of veterans and other recipients of federal supply schedule drug prices.
     (b) In an effort to promote healthy communities and to protect the public health and welfare of West Virginia residents, the Legislature finds that it is its responsibility to make every effort to provide affordable prescription drugs for all residents of West Virginia.
§5A-3C-3. Definitions.
     In this article:
     (1) "Advertising" or "marketing" means any manner of communication of information, either directly or indirectly, that is paid for and usually persuasive in nature about products, services or ideas related to pharmaceuticals by identified sponsors through various media, persons or other forms as further defined by legislative rule.
     (2) "AWP" or "average wholesale price" means the amount determined from the latest publication of the blue book, a universally subscribed pharmacist reference guide annually published by the Hearst corporation. "AWP" or "average wholesale price" may also be derived electronically from the drug pricing database synonymous with the latest publication of the blue book and furnished in the national drug data file (NDDF) by first data bank (FDB), a service of the Hearst corporation.
     (3) "Dispensing fee" means the fee charged by a pharmacy to dispense pharmaceuticals.
     (4) "Drug manufacturer" or "pharmaceutical manufacturer" means any entity which is engaged in: (A) The production, preparation, propagation, compounding, conversion or processing of prescription drug products, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis or by a combination of extraction and chemical synthesis; or (B) in the packaging, repackaging, labeling, relabeling or distribution of prescription drug products. "Drug manufacturer" or "pharmaceutical manufacturer" does not include a wholesale distributor of drugs or a retail pharmacy licensed under state law.
     (5) "Federal supply schedule" or "FSS" means the price available to all federal agencies for the purchase of pharmaceuticals authorized in the Veterans Health Care Act of 1992, PL 102-585. FSS prices are intended to equal or better the prices manufacturers charge their "most-favored" nonfederal customers under comparable terms and conditions.
     (6) "Multiple-source drug", "innovator drug" and "noninnovator drug" mean the following:
     (A) The term "multiple-source drug" means, for which there are two or more drug products which are: Rated as therapeutically equivalent (under the food and drug administration's most recent publication of "Approved Drug Products with Therapeutic Equivalence Evaluations"), except as provided in paragraph (B) of this subdivision, are pharmaceutically equivalent and bioequivalent, as determined by the food and drug administration, and the term "innovator drug" shall hereinafter be referred to as "brand". The term "innovator drug" means a drug which is produced or distributed under an original new drug application approved by the food and drug administration, including a drug product marketed by any cross-licensed producers or distributors operating under the new drug application and any multiple-source drug that was originally marketed under an original new drug application approved by the food and drug administration. The term "noninnovator drug" shall hereinafter be referred to as "generic". The term "noninnovator drug" means a multiple-source drug that is not an "innovator drug".
     (B) Paragraph (A) of this subdivision shall not apply if the food and drug administration changes by regulation the requirement that, for purposes of the publication described in paragraph (A) of this subdivision, in order for drug products to be rated as therapeutically equivalent, they must be pharmaceutically equivalent and bioequivalent.
     (7) "Labeler" means an entity or person that receives prescription drugs from a manufacturer or wholesaler and repackages those drugs for later retail sale and that has a labeler code from the federal food and drug administration pursuant to 21 C. F. R. §207.20 (1999).
     (8) "Person" means any natural person or persons or any corporation, partnership, company, trust or association of persons.
     (9) "Pharmaceutical drug detailing" or "detailing" means the function performed by a sales representative who is employed by a pharmaceutical manufacturer for the purpose of: Promotion of pharmaceutical drugs or related products; education about pharmaceutical drugs or related products; or to provide samples of pharmaceutical drugs, related products or related materials, gifts, food or meals.
     (10) "Savings" means the difference between the previous price of a prescription drug including any discounts, rebates or price containments and the current price after the effective date of this article for the public employees insurance agency, children's health insurance program, medicaid and workers' compensation programs or other programs which are payors for prescription drugs.
     (11) "Sole source" means a pharmaceutical that provides a unique and powerful advantage available in the market to a broad group of patients established under federal law.
     (12) "West Virginia Pharmaceutical Cost Management Council" or "council" means the council created pursuant to section eight of this article.
§5A-3C-4. Creation of clearinghouse program.
     (a) There is hereby created the state prescription drug assistance clearinghouse program. The brand pharmaceutical manufacturers shall create and implement a program to assist state residents of who are low income or uninsured to gain access to prescription medications through existing private and public sector programs and prescription drug assistance programs offered by manufacturers, including discount and coverage programs. The brand pharmaceutical manufacturers shall use available computer software programs that access an eligible individual with the appropriate private or public programs relating to the individual's medically necessary drugs. The brand pharmaceutical manufacturers shall provide education to individuals and providers to promote the program and to expand enrollment and access to necessary medications for low-income or uninsured individuals qualifying for the programs. The participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program, and be responsible for running the program, regardless of the date of transfer of the program to the state, for the period of time until a date no earlier than the thirtieth day of June, two thousand five, and ownership of the technology, website and other program features shall be transferred to the state on the same date. The secretary of the department of health and human resources and the director of the public employees insurance agency shall provide joint oversight over the establishment and construction of the program and program features for the period of time prior to the transfer of ownership to the state. The pharmaceutical council shall recommend the state agency to own, control and operate the program, technology and program features, and shall include such recommendation in its report on or before the first day of September, two thousand four, to the joint committee on government and finance, as provided for in section eight of this article. In addition, the pharmaceutical manufacturers shall report to the joint committee on government and finance on a monthly basis all activities related to the implementation of this program including the number of citizens serviced and the services provided.
     (b) The participating brand pharmaceutical manufacturers shall contribute the funding for the promotion of the public relations program attendant to the establishment of the program. The participating brand pharmaceutical manufacturers shall be responsible for the cost of the establishment of the program and the cost of the ongoing program, regardless of the date of transfer of ownership of the program to the state, for the period of time until the thirty-first day of December, two thousand four.
§5A-3C-5. Pharmaceutical discount program; establishment; eligible individuals; discount pass through; terms.

     There is hereby established a discount drug program to provide low-income, uninsured individuals with access to prescription drugs from participating brand pharmaceutical companies and pharmacists through either a state-sponsored discount card program or a program that extends current brand pharmaceutical manufacturer prescription drug assistance programs:
     (a) The state hereby establishes a state-sponsored prescription drug discount card program for certain eligible residents of West Virginia:
     (1) Eligible individuals include uninsured residents of West Virginia up to two hundred percent of the federal poverty guideline who have not been covered by a prescription drug program, whether public or private, at least six months prior to applying to the discount card program;
     (2) The state may negotiate voluntary discounts with brand pharmaceutical manufacturers and pharmacists: Provided, That the total discount received from the manufacturer shall pass through to the eligible resident;
     (3) Failure of a brand pharmaceutical manufacturer to participate in the voluntary discount card program will not result in prior authorization on drugs in the medicaid program which would not otherwise be subject to prior authorization but for the failure of the manufacturer to participate in this program; and
     (4) The state shall not establish a formulary or preferred drug list as part of the discount card program.
     (b) The brand pharmaceutical manufacturers may extend existing prescription drug assistance programs to eligible residents of West Virginia. Eligible individuals include uninsured residents of West Virginia up to two hundred percent of the federal poverty level who have not been covered by a prescription drug program, whether public or private, at least six months prior to applying to the program.
     (c) The program established under this section shall be structured so that a member presenting a discount card at a participating pharmacy will receive the full benefit of the pharmacy discount, as well as the manufacturer's discount, at a point of sale transaction. The program, or the pharmacy benefit manager contracted by the program, shall coordinate the drug discount information provided by participating pharmacies and manufacturers so that the available drug discounts are provided to the member at the point of sale.
     (d) Manufacturers participating in the voluntary program established under this section shall cooperate with the program, or the pharmacy benefit manager contracted by the program, to provide the current list of drugs and the percentage of discount from the AWP for such drugs, or the rebates that the manufacturer will provide under the program. It is the intent of this program that adequate drug price and discount or rebate information be provided by the manufacturer, such that the program and participating pharmacies will have available such drug prices and discounts or rebates at a point of sale pharmaceutical drug transaction. Retail pharmacies will be responsible for no more than fifty percent of the discount offered by the manufacturer to the participant.
     (1) Pharmacies participating in the voluntary program(s) established under this section will be responsible for no more than fifty percent of the discount offered by the manufacturer to the participant and be paid a dispensing fee of no more than three dollars and fifty cents per prescription with regard to prescriptions filled under the program(s).
     (2) Upon the presentation of a valid discount card, payment for the prescription and otherwise meeting appropriate criteria to have their prescription filled, the cardholder will have their prescription filled by a participating pharmacy. To accomplish the transaction, the participating pharmacy shall electronically transmit the transaction to the program or pharmacy benefit manager contracted by the program for processing. The program, or the program's pharmacy benefit manager, shall determine the discounted cost of the drug, including the discount provided, the discount provided by the pharmacy, the discount or rebate provided by the manufacturer, the pharmacy dispensing fee and any pharmacy benefit manager transaction fee. The program, or the program's pharmacy benefit manager, shall then transmit to the manufacturer an electronic statement of the amount the manufacturer owes on the transaction to cover the manufacturer's discount or rebate and the program's or the pharmacy benefit manager's processing fee. The manufacturer shall, in turn, at least every fourteen days, transmit such monetary amounts for the transaction to the program, or the program's pharmacy benefit manager, and the program, or the program's pharmacy benefit manager, shall pass such discount or rebate amounts back to the participating pharmacy which originated the transaction immediately.
     (e) The pharmaceutical manufacturers shall report to the joint committee on government and finance on a monthly basis all activities related to the implementation of this program including the number of citizens serviced and the services provided, as well as, the benefits, the costs and the discounts obtained.
§5A-3C-6. Creation of program; administrative support; medicaid and chip program.

     (a) There is hereby created in the state a program to obtain favorable pharmaceutical prices for state agencies and other qualified entities pursuant to this article.
     (b) The medicaid program and the West Virginia children's health insurance program may be exempt from participation in this program until approval by the center for medicare and medicaid services has been granted if it is determined to be required by the council.
     (c) Administrative staff support for the council created by this article shall be provided by the departments represented on the council.
     (d) The council shall establish a pricing schedule using or referencing the FSS prices, or using or referencing to the price, as adjusted for currency valuations, set by Canada patented medicine prices review board (PMPRB) or any other appropriate referenced price that will maximize savings to the broadest percentage of the population of this state.
     (e) By the fifteenth day of September, two thousand four, the council shall report back to the Legislature the pricing schedule developed and a strategic plan for implementation. The council shall implement the proposed pricing schedule and strategic plan upon concurrent resolution of the Legislature. If, at the time of the acceptance or rejection of the concurrent resolution to implement the proposed pricing schedule and strategy, the concurrent resolution is not passed due to the Legislature's lack of acceptance of the same, the Legislature shall accept or reject a concurrent resolution to implement the pricing schedule and strategy using or referencing the FSS: Provided, That acceptance or rejection of the above-referenced resolutions shall occur prior to the end of the regular session of the Legislature in two thousand five.
     (f) If neither of the above-referenced resolutions pass during the regular session of the Legislature in two thousand five, the Legislature may, at any time in the future, pass a concurrent resolution to implement the above-referenced pricing schedule and strategy or any subsequent recommendation of the council to the Legislature and the Legislature determines that the proposed pricing schedule and strategy are the most effective method of reducing pharmaceutical prices for the citizens of the state.
     (g) Qualified entities, including, but not limited to, licensed private insurers, self-insured employers, free clinics and other entities who provide pharmaceuticals either directly or through some form of coverage to the citizens of West Virginia, shall have an option to apply for participation in the program established by this article in the form and manner established by the council. The council, in its sole discretion, shall approve or deny participation through review of documentation determined to be necessary for full consideration and as established by rule. The council shall consider, but not be limited to, the fiscal stability and the size of each applicant.
     (h) Pharmaceutical manufacturers may request a waiver from the pricing schedule to be granted by the council for a particular drug in which the development, production, distribution costs, other reasonable costs and reasonable profits, but exclusive of all marketing and advertising costs as determined by the council, is more than the pricing schedule rate of the pharmaceutical or in those cases in which the pharmaceutical in question has a sole source. The determination of reasonable costs and reasonable profits may fluctuate between different pharmaceuticals under consideration by the council. The council shall determine by legislative rule fees to be paid by the applicant at the time a waiver request is made and documentation required to be submitted at the time of the waiver request.
§5A-3C-7. Multistate discussion group.
     For the purposes of reviewing or amending the program establishing the process for making pharmaceuticals more available and affordable to the citizens of West Virginia, the state may continue to enter into multistate discussions and agreements. For purposes of participating in these discussions, the state shall be represented by members of the council created in section eight of this article.
§5A-3C-8. West Virginia pharmaceutical cost management council.
     (a) There is hereby created the West Virginia pharmaceutical cost management council which consists of the secretary of the department of administration or his or her designee, the director of the public employees insurance agency or his or her designee, the commissioner of the bureau of medical services of the department of health and human resources or his or her designee, the secretary of the department of health and human resources or his or her designee, the executive director of the workers' compensation commission or his or her designee, bureau of senior services or his or her designee and five members from the public who shall be appointed by the governor with the advice and consent of the Senate. One public member shall be a licensed pharmacist employed by a community retail pharmacy, one public member shall be a representative of a pharmaceutical manufacturer with substantial operations located in the state of West Virginia that has at least seven hundred fifty employees, one public member shall be a primary care physician, one public member shall represent those who will receive benefit from the establishment of this program and one public member shall have experience in the financing, development or management of a health insurance company which provides pharmaceutical coverage. Each public member shall serve for a term of four years. Of the public members of the council first appointed, one shall be appointed for a term ending the thirtieth day of June, two thousand six, and two each for terms of three and four years. Each public member shall serve until his or her successor is appointed and has qualified. A member of the council may be removed by the governor for cause.
     (b) The secretary of the department of administration shall serve as chairperson of the council, which shall meet at times and places specified by the chairperson or upon the request of two members of the council.
     (c) Authority members shall not be compensated in their capacity as members but shall be reimbursed for reasonable expenses incurred in the performance of their duties.
     (d) The council has the power and authority to:
     (1) Contract for the purpose of implementing the cost containment provisions of this article;
     (2) File suit;
     (3) Execute as permitted by applicable federal law, prescription drug purchasing agreements with:
     (A) All departments, agencies, authorities, institutions, programs, any agencies or programs of the federal government, quasi-public corporations and political subdivisions of this state, including, but not limited to, the children's health insurance program, the division of corrections, the division of juvenile services, the regional jail and correctional facility authority, the workers' compensation fund, state colleges and universities, public hospitals, state or local institutions, such as nursing homes, veterans' homes, the division of rehabilitation, public health departments, state programs, including, but not limited to, programs established in sections four and five of this article, and the bureau of medical services: Provided, That any contract or agreement executed with or on behalf of the bureau of medical services shall contain all necessary provisions to comply with the provisions of Title XIX of the Social Security Act, 42 U. S. C. §1396 et seq., dealing with pharmacy services offered to recipients under the medical assistance plan of West Virginia;
     (B) Governments of other states and jurisdictions and their individual departments, agencies, authorities, institutions, programs, quasi-public corporations and political subdivisions; and      (C) Regional or multistate purchasing alliances or consortia, formed for the purpose of pooling the combined purchasing power of the individual members in order to increase bargaining power;
     (4) Consider strategies by which West Virginia may manage the increasing costs of prescription drugs and increase access to prescription drugs for all of the state's citizens, including the authority to:
     (A) Explore the enactment of fair prescription drug pricing policies;
     (B) Explore discount prices or rebate programs for seniors and persons without prescription drug coverage;
     (C) Explore programs offered by pharmaceutical manufacturers that provide prescription drugs for free or at reduced prices;
     (D) Explore requirements and criteria, including the level of detail, for prescription drug manufacturers to disclose to the council expenditures for advertising, marketing and promotion, based on aggregate national data;
     (E) Explore the establishment of counter-detailing programs aimed at educating health care practitioners authorized to prescribe prescription drugs about the relative costs and benefits of various prescription drugs, with an emphasis on generic substitution for brand name drugs when available and appropriate; prescribing older, less costly drugs instead of newer, more expensive drugs, when appropriate; and prescribing lower dosages of prescription drugs, when available and appropriate;
     (F) Explore disease state management programs aimed at enhancing the effectiveness of treating certain diseases identified as prevalent among this state's population with prescription drugs;      (G) Explore prescription drug purchasing agreements with large private sector purchasers of prescription drugs and including those private entities in pharmacy benefit management contracts: Provided, That no private entity may be compelled to participate in a purchasing agreement;
     (H) Explore the feasibility of using or referencing, the federal supply schedule or referencing to the price, as adjusted for currency valuations, set by the Canada patented medicine prices review board ("PMPRB"), or any other appropriate referenced price to establish prescription drug pricing for brand name drugs in the state; and to review and determine the dispensing fees for pharmacies in such as established in section six of this article;
     (I) Explore, if possible, joint negotiations for drug purchasing and a shared prescription drug pricing schedule and shared preferred drug list for use by the public employees insurance agency, the medicaid program, other state payors and private insurers;
     (J) Explore coordination between the medicaid program, the public employees insurance agency and, to the extent possible, in- state hospitals and private insurers toward the development of a uniform preferred prescription drug list which is clinically appropriate and which leverages retail prices;
     (K) Explore policies which promote the use of generic drugs, where appropriate;
     (L) Explore a policy that precludes a drug manufacturer from reducing the amounts of drug rebates or otherwise penalize an insurer, health plan or other entity which pays for prescription drugs based upon the fact that the entity uses step therapy or other clinical programs before a drug is covered or otherwise authorized for payment;
     (M) Explore arrangements with entities in the private sector, including self-funded benefit plans and nonprofit corporations, toward combined purchasing of health care services, health care management services, pharmacy benefits management services or pharmaceutical products on the condition that no private entity be compelled to participate in the prescription drug purchasing pool; and
     (N) Explore other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens;
     (5) Contract with appropriate legal, actuarial and other service providers required to accomplish any function within the powers of the council;
     (6) Develop other strategies, as permitted under state and federal law, aimed at managing escalating prescription drug prices and increasing affordable access to prescription drugs for all West Virginia citizens;
     (7) Explore the licensing and regulation of pharmaceutical detailers, including the requirement of continuing professional education, the imposition of fees for licensing and continuing education, the establishment of a special revenue account for deposit of the fees and the imposition of penalties for noncompliance with licensing and continuing education requirements, and rules to establish procedures to implement the provisions of the subdivision;
     (8) The council shall report to the Legislature's joint committee on government and finance on or before the first day of September, two thousand four, and report on or before the thirty- first day of December, two thousand four, and annually thereafter to the Legislature, and provide recommendations to the Legislature on needed legislative action and other functions established by the article or requested by the joint committee on government and finance of the Legislature;
     (9) The council shall, upon the passage of this article, immediately commence to study the fiscal impact to this state of the federal "Medicare Prescription Drug Improvement and Modernization Act of 2003" and shall report to the Legislature's joint committee on government and finance on or before the fifteenth day of October, two thousand four, as to the findings of the council;
     (10) The council shall develop an evaluation methodology to certify and audit savings in the discount savings program by determining the impact on growth and profit of the pharmaceutical manufacturers to ensure that prices have not been inflated to offset the discount card value;
     (11) The council shall evaluate the clearinghouse established by this article and the discount card program established by this article to report to the joint committee on government and finance, and the legislative oversight commission on health and human resources accountability, their findings and recommendations for further action by the Legislature;
     (12) The council shall further: (1) Review determine that the implementation of the programs under this article will not jeopardize, reduce or penalize the benefits of veterans or other recipients of FSS drug prices, considering their respective co-pay structures, and the pricing mechanisms of their respective programs; (2) commence negotiations to obtain independent agreements or multistate agreements as many as ten states to use or reference a pricing schedule as set forth in section six of this article; (3) and determine the ability to establish a savings of forty-two percent of the retail cost to be reported to the joint committee on government and finance and the legislative oversight commission on health and human resources accountability, as established in this section.
§5A-3C-9. Investigation of Canadian drugs; wholesaling; federal waivers.

     The council created in section eight of this article and the director of the public employees insurance agency are authorized to investigate the feasibility of purchasing prescription drugs from sources in Canada, which may include the feasibility of the state or an instrumentality thereof serving as a wholesale distributor of prescription drugs in the state.
     (a) Upon a determination by the council or the director of the public employees insurance agency that the same is feasible and in the best interests of the citizens of the state, the council or the director is authorized to pursue waivers from the federal government, including, but not limited to, from the United States food and drug administration, as necessary for the state to accomplish prescription drug purchasing from sources in Canada provided, however, if a waiver is not granted, the council is authorized to take necessary legal action.
     (b) Upon a favorable finding by the appropriate federal agencies or courts, notwithstanding any provision of this code to the contrary, the council or the director of the public employees insurance agency may establish and implement a methodology to provide wholesale drugs to licensed pharmacies located within West Virginia, provided, however, prior to the implementation, the Legislature must adopt a concurrent resolution authorizing such action.
§5A-3C-10. Director's powers; ability to enter drug purchasing contracts.

     Notwithstanding any provision of this code to the contrary, nothing contained in this article shall be construed to limit the powers and authority granted to the director of the public employees insurance agency pursuant to article sixteen-c, chapter five of this code. Notwithstanding any provision of this code to the contrary and specifically subdivision (4), subsection (a), section four, article five-c of said chapter, the director is authorized to execute prescription drug purchasing agreements without further enactment of the Legislature.
§5A-3C-11. Agency's management ability continued.
     Nothing contained in this article shall be construed to limit the ability of the various state agencies to enter into contracts or arrangements or to otherwise manage their pharmacy programs until such time as the programs created or authorized pursuant to this article are implemented.
§5A-3C-12. Restraint of trade; civil and criminal violations defined.

     (a) The following are considered to restrain trade or commerce unreasonably and shall be unlawful:
     (1) A contract, combination or conspiracy between two or more persons:
     (A) For the purpose or with the intent to fix, control or maintain the market price, rate or fee of pharmaceuticals; or
     (B) Allocate or divide customers or markets, functional or geographic, for any pharmaceutical.
     (2) The establishment, maintenance or use of a monopoly or an attempt to establish a monopoly of trade or commerce, any part of which is within this state, by any persons for the purpose of or with the intent to exclude competition or control, fix or maintain pharmaceutical prices.
     (b) Any person violating the provisions of this section is guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not less than one nor more than ten years, or fined in an amount consistent with the Clayton Act 15 U. S. C. §15 et seq., which may include treble damages, or both fined and confined.
     (c) Any person violating the provisions of this section is liable for a civil penalty and fine in an amount consistent with the Clayton Act 15 U. S. C. §15 et seq., which may include treble damages, for each violation.
     (d) The county prosecutor shall investigate suspected violations of, and institute criminal proceedings pursuant to, the provisions of this section.
     (e) The attorney general or special counsel appointed by the governor, in his or her discretion, shall represent the state in all civil proceedings brought on behalf of the state to enforce the provisions of this section. After payment of all attorney fees and costs, no less than fifty percent of all judgments or settlements shall be placed in the general revenue fund of the state.
§5A-3C-13. Advertising costs; reporting of same.

     (a) Advertising costs for prescription drugs, based on aggregate national data, must be reported to the state council by all manufacturers and labelers of prescription drugs dispensed in this state that employ, direct or utilize marketing representatives. The reporting shall assist this state in its role as a purchaser of prescription drugs and an administrator of prescription drug programs, enabling this state to determine the scope of prescription drug advertising costs and their effect on the cost, utilization and delivery of health care services and furthering the role of this state as guardian of the public interest.
     (b) The council shall establish, by legislative rule, the reporting requirements of information by labelers and manufacturers which shall include all national aggregate expenses associated with advertising and direct promotion of prescription drugs through radio, television, magazines, newspapers, direct mail and telephone communications as they pertain to residents of this state.
     (c) The following shall be exempt from disclosure requirements:
     (1) All free samples of prescription drugs intended to be distributed to patients;
     (2) All payments of reasonable compensation and reimbursement of expenses in connection with a bona fide clinical trial. As used in this subdivision, "clinical trial" means an approved clinical trial conducted in connection with a research study designed to answer specific questions about vaccines, new therapies or new ways of using known treatments; or
     (3) All scholarship or other support for medical students, residents and fellows to attend significant educational, scientific or policy-making conference of national, regional or specialty medical or other professional association if the recipient of the scholarship or other support is selected by the association.
     (d) The council is further authorized to establish time lines, the documentation, form and manner of reporting required as the council determines necessary to effectuate the purpose of this article. The council shall report to the joint committee on government and finance, in an aggregate form, the information provided in the required reporting.
     (e) Notwithstanding any provision of law to the contrary, information submitted to the council pursuant to this section is confidential and is not a public record and is not available for release pursuant to the West Virginia freedom of information act. Data compiled in aggregate form by the council for the purposes of reporting required by this section is a public record as defined in the West Virginia freedom of information act, as long as it does not reveal trade information that is protected by state or federal law.
§5A-3C-14. State role.
     For purpose of implementing this article, the state represented by the council shall have authority to negotiate pharmaceutical prices to be paid by program participants. These negotiated prices shall be available to all programs.
§5A-3C-15. Rulemaking.
     The council may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to implement any section of this article.
§5A-3C-16. Sunset provision.
     The council shall continue to exist, pursuant to the provisions of article ten, chapter four of this code, until the first day of July, two thousand eight, unless sooner terminated, continued or reestablished pursuant to the provisions of that article.
§5A-3C-17. Potential use of savings.
     Savings identified by all program participants shall be quantified and certified to the council and included in the annual report of the council to the Legislature provided for in section eight of this article. Savings, or any part thereof, created by the implementation of this program may, in the sole discretion of the Legislature, be directed towards the maintenance of existing state health programs and the expansion of insurance programs for the uninsured and underinsured.;
     And,
     That both houses recede from their positions as to the title of the bill and agree to the same as follows:
     Eng. House Bill No. 4084--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5A-3C-1, §5A-3C-2, §5A-3C-3, §5A-3C-4, §5A-3C-5, §5A-3C-6, §5A-3C-7, §5A-3C-8, §5A-3C-9, §5A-3C-10, §5A-3C-11, §5A-3C-12, §5A-3C-13, §5A-3C-14, §5A-3C-15, §5A-3C-16 and §5A-3C- 17, all relating generally to the creation of a pharmaceutical program for the state; legislative findings; definitions; creation of the prescription drug assistance clearinghouse program; requiring costs of program to be paid by drug manufacturers; transfer of ownership of the program to the state; establishment of pharmaceutical discount program; eligibility for participation in the pharmaceutical discount program; discount pass through; creation of a West Virginia pharmaceutical cost management council; establishing membership; establishing powers and responsibilities; reporting requirements; authority to investigate the feasibility of purchasing Canadian drugs; authority to establish a pricing schedule to be implemented upon concurrent resolution of the Legislature; authority to explore numerous strategies, policies and programs, including, but not limited to, referenced prices for prescription drug purchases and pricing in the state; authority to implement certain designated programs; state responsibilities; prohibiting restraint of trade; providing civil and criminal penalties for restraint of trade; advertising costs and reporting; rule-making authority; sunset provisions; and identifying potential use of savings.
                              Respectfully submitted,
     Thomas W. Campbell, Chair, John Doyle, Dan Foster, Don C. Perdue, Mike Hall, Conferees on the part of the House of Delegates.
     Roman W. Prezioso, Jr., Chair, John R. Unger II, Brooks F. McCabe, Jr., Mike Ross, Lisa Smith, Conferees on the part of the Senate.
     On motions of Senator Prezioso, severally made, the report of the committee of conference was taken up for immediate consideration.
     The question being on the adoption of the report of the committee of conference for Engrossed House Bill No. 4084.
     Following discussion,
     Senator Ross moved the previous question, which motion prevailed.
     The previous question having been ordered, that being on the adoption of the report of the committee of conference as to Engrossed House Bill No. 4084, the same was put and prevailed.
     Engrossed House Bill No. 4084, as amended by the conference report, was then put upon its passage.
     On the passage of the bill, as amended, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--32.
     The nays were: Weeks--1.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4084) passed with its conference amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--32.
     The nays were: Weeks--1.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4084) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, to take effect from passage, and requested the concurrence of the Senate in the adoption thereof, as to
     Eng. House Bill No. 4601, Relating to public education generally.
     Whereupon, Senator Plymale, from the committee of conference on matters of disagreement between the two houses, as to
     Eng. House Bill No. 4601, Relating to public education generally.
     Submitted the following report, which was received.
     Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed House Bill No. 4601 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
     That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause, and agree to the same as follows:
     That §18-9A-7 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-7. Foundation allowance for transportation cost.

     The allowance in the foundation school program for each county for transportation shall be the sum of the following computations:
     (1) Eighty-five percent of the transportation cost within each high-density county and ninety percent of the transportation cost within each low-density county for maintenance, operation and related costs, exclusive of all salaries: Provided, That for the school year beginning the first day of July, one thousand nine hundred ninety-eight, and thereafter, in the event a any county that uses an alternative fuel such as compressed natural gas or other acceptable alternative fuel for the operation of all or any portion of its school bus system, then the allowance in the foundation school program for each such the county for that portion of its school bus system shall be ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any county using an alternative fuel and qualifying for the additional allowance shall submit a plan regarding the intended future use of alternatively fueled school buses;
     (2) The total cost, within each county, of insurance premiums on buses, buildings and equipment used in transportation: Provided, That such the premiums were procured through competitive bidding;
     (3) For the school year beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, an An amount equal to eight and one-third percent of the current replacement value of the bus fleet within each county as determined by the state board. such The amount to be used only shall only be used for the replacement of buses. Buses purchased after the first day of July, one thousand nine hundred ninety-nine, that are driven one hundred eighty thousand miles, regardless of year model, will be subject to the replacement value of eight and one-third percent as determined by the state board: Provided, That for the school year beginning on the first day of July, two thousand four, only, the allowance in the foundation school program for each county for transportation shall not include an amount for the replacement of buses. In addition, in any school year in which its net enrollment increases when compared to the net enrollment the year immediately preceding, a school district may apply to the state superintendent for funding for an additional bus. The state superintendent shall make a decision regarding each application based upon an analysis of the individual school district's net enrollment history and transportation needs: Provided, however, That the superintendent shall not consider any application which fails to document that the county has applied for federal funding for additional buses. If the state superintendent finds that a need exists, a request for funding shall be included in the budget request submitted by the state board for the upcoming fiscal year;
     (4) Eighty-five percent of the cost of contracted transportation services and public utility transportation within each high-density county and ninety percent of the cost of contracted transportation services and public utility transportation within each low-density county;
     (5) Aid in lieu of transportation equal to the state average amount per pupil for each pupil receiving such the aid within each county; and
     (6) Ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multicounty vocational center.
     The total state share for this purpose shall be the sum of the county shares: Provided, That no county shall receive an allowance which is greater than one-third above the computed state average allowance per transportation mile multiplied by the total transportation mileage in the county: Provided, however, That one half of one percent of the transportation allowance distributed to each county shall be for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity: Provided further, That for the school year beginning on the first day of July, two thousand four, only, the transportation allowance of each county shall include an allocation for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. The allocation shall equal the amount distributed to the county for this purpose in the school year beginning on the first day of July, two thousand three: And provided further, That any remaining funds credited to a county for the purpose of trips related to academic classroom curriculum during the fiscal year shall be carried over for use in the same manner the next fiscal year and shall be separate and apart from, and in addition to, the appropriation for the next fiscal year: And provided further, That the state board may request a county to document the use of funds for trips related to academic classroom curriculum if the board deems it determines that it is necessary.
     The state department of education shall cause a comprehensive study to be made relating to student transportation. The study shall examine, but is not limited to, the issues of funding, timeliness of data used for formula distribution, service personnel needed, inter-county service, regionalization of services, bus routes, amount of time students spend on buses, maintenance, safety training, and alternative transportation systems. The state department of education shall submit a report of the study to the legislative oversight commission on education accountability by the fifteenth day of January, one thousand nine hundred ninety-nine.
ARTICLE 9D. SCHOOL BUILDING AUTHORITY.
§18-9D-2. Definitions.

     The following terms, wherever used or referred to in this article, have the following meanings unless a different meaning clearly appears from the context:
     (1) "Authority" means the school building authority of West Virginia or, if said the authority shall be is abolished, any board or officer succeeding to the principal functions thereof of the school building authority or to whom the powers given to said the authority shall be are given by law;
     (2) "Bonds" means bonds issued by the authority pursuant to this article;
     (3) "Construction project" means a project in the furtherance of a facilities plan with a cost of the project greater than five hundred thousand dollars for the new construction, expansion or major renovation of facilities, buildings and structures for school purposes, including the acquisition of land for current or future use in connection therewith with the construction project, as well as new or substantial upgrading of existing equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing the foregoing construction project into operation: Provided, That a construction project may not include such items as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered to result in a current or ordinary course of business operating charge: Provided, however, That a construction project may not include a major improvement project;
     (4) "Cost of project" means the cost of construction, expansion, renovation, repair and safety upgrading of facilities, buildings and structures for school purposes; the cost of land, equipment, machinery, furnishings, installation of utilities and other similar items convenient in connection with placing the foregoing project into operation; and the cost of financing, interest during construction, professional service fees and all other charges or expenses necessary, appurtenant or incidental to the foregoing, including the cost of administration of this article;
     (5) "Facilities plan" means the a ten-year countywide comprehensive educational facilities plan for school facilities required established by the county board in accordance with guidelines adopted by the authority to meet the goals and objectives of this article that: (i) Addresses the existing school facilities and facility needs of the county to provide a thorough and efficient education in accordance with the provisions of this code and policies of the state board; (ii) best serves the needs of the individual student, the general school population and the communities served by the facilities; (iii) includes a school major improvement plan as defined in this section; (iv) is updated annually to reflect projects completed, current enrollment projections and new or continuing needs; and (v) is approved by the state board and the authority prior to the distribution of state funds pursuant to this article to any county board pursuant to subsection (a), section sixteen of this article or other entity applying for funds;
     (6) "Project" means a construction project or a major improvement project;
     (7) "Region" means the area encompassed within and serviced by a regional educational service agency established pursuant to section twenty-six, article two of this chapter;
     (8) "Revenue" or "revenues" means moneys deposited in the school building capital improvements fund pursuant to the operation of section ten, article nine-a of this chapter; moneys deposited in the school construction fund pursuant to the operation of section thirty, article fifteen, chapter eleven of this code and pursuant to the operation of section eighteen, article twenty-two, chapter twenty-nine of this code; moneys deposited in the school building debt service fund pursuant to said section; moneys deposited in the school major improvement fund pursuant to the operation of section thirty, article fifteen, chapter eleven of this code; any moneys received, directly or indirectly, from any source for use in any project completed pursuant to this article; and any other moneys received by the authority for the purposes of this article;
     (9) "School major improvement plan" means the a ten-year school maintenance plan to be that: (i) Is prepared by each a county board of education in accordance with the guidelines established by the authority and incorporated in its countywide comprehensive educational facilities plan or is prepared by the state board of education or the administrative council of an area vocational educational center in accordance with the guidelines if such entity seeks the entities seek funding from the authority for a major improvement project; which school major improvement plan (ii) addresses the regularly scheduled maintenance for all school facilities of the county or under the jurisdiction of the entity seeking funding; (iii) includes a projected repair and replacement schedule for all school facilities of the county or of entity seeking funding; (iv) addresses the major improvement needs of each school within the county or under the jurisdiction of the entity seeking funding; and (v) is required prior to the distribution of state funds for a major improvement project pursuant to subsection (b), section sixteen of this article to the county board, state board or administrative council; and
     (10) "School major improvement project" means a project with a cost greater than fifty thousand dollars and less than five hundred thousand dollars for the renovation, expansion, the repair and safety upgrading of existing school facilities, buildings and structures, including the substantial repair or upgrading of equipment, machinery, building systems, utilities and other similar items convenient in connection with such renovation, repair or upgrading in the furtherance of a school major improvement plan: Provided, That a major improvement project may not include such items as books, computers or equipment used for instructional purposes, fuel, supplies, routine utility services fees, routine maintenance costs, ordinary course of business improvements and other items which are customarily deemed considered to result in a current or ordinary course of business operating charge.
§18-9D-6. School building capital improvements fund in state treasury; school construction fund in state treasury; school building debt service fund in state treasury; school improvement fund in state treasury; collections to be paid into special funds; authority to pledge the collections as security for refunding revenue bonds; authority to finance projects on a cash basis.

     (a) There is continued in the state treasury a school building capital improvements fund to be expended by the authority as provided in this article. The school building capital improvements fund shall be an interest-bearing account with interest credited to and deposited in the school building capital improvements fund and expended in accordance with the provisions of this article.
     The school building authority may pledge all or any part of the revenues paid into the school building capital improvements fund that are needed to meet the requirements of any revenue bond issue or issues authorized by this article prior to the twentieth day of July, one thousand nine hundred ninety-three, or revenue bonds issued to refund revenue bonds issued prior to that date, including the payment of principal of, interest and redemption premium, if any, on the revenue bonds and the establishing and maintaining of a reserve fund or funds for the payment of the principal of, interest and redemption premium, if any, on the revenue bond issue or issues when other moneys pledged may be insufficient for the payment of the principal, interest and redemption premium, including any additional protective pledge of revenues that the authority in its discretion has provided by resolution authorizing the issuance of the bonds or in any trust agreement made in connection with the bond issue. Additionally, the authority may provide in the resolution and in the trust agreement for priorities on the revenues paid into the school building capital improvements fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this article.
     Any balance remaining in the school building capital improvements fund after the authority has issued bonds authorized by this article and after the requirements of all funds, including reserve funds established in connection with the bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article have been satisfied may be used for the redemption of any of the outstanding bonds issued under this article which by their terms are then redeemable, or for the purchase of the bonds at the market price, but not exceeding the price, if any, at which the bonds are in the same year redeemable and all bonds redeemed or purchased shall immediately be canceled and shall not again be issued.
     The school building authority, in its discretion, may use the moneys in the school building capital improvements fund to finance the cost of projects authorized in accordance with the provisions of section sixteen of this article on a cash basis. Any pledge of moneys in the fund for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, is a prior and superior charge on the fund over the use of any of the moneys in the fund to pay for the cost of any project on a cash basis: Provided, That any expenditures from the fund, other than for the retirement of revenue bonds, may only be made by the authority in accordance with the provisions of this article.
     (b) There is continued in the state treasury a special revenue fund named the school building debt service fund into which shall be deposited the amounts specified in section eighteen, article twenty-two, chapter twenty-nine of this code. All amounts deposited in the fund shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this article: Provided, That deposited moneys may not be pledged to the repayment of any revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, or with respect to revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four. Additionally, the authority may provide in the resolution and in the trust agreement for priorities on the revenues paid into the school building debt service fund that are necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this article. On or prior to the first day of May of each year, the authority shall certify to the state lottery director the principal and interest and coverage ratio requirements for the following fiscal year on any revenue bonds issued on or after the first day of January, one thousand nine hundred ninety-four, and for which moneys deposited in the school building debt service fund have been pledged, or will be pledged, for repayment pursuant to this section.
     After the authority has issued bonds authorized by this article and after the requirements of all funds have been satisfied, including coverage and reserve funds established in connection with the bonds issued pursuant to this article, any balance remaining in the school building debt service fund may be used for the redemption of any of the outstanding bonds issued under this article which, by their terms, are then redeemable or for the purchase of the outstanding bonds at the market price, but not to exceed the price, if any, at which the bonds are redeemable and all bonds redeemed or purchased shall be immediately canceled and shall not again be issued: Provided, That after the authority has issued bonds authorized by this article and after the requirements of debt service and all associated funds have been satisfied for the fiscal year, including coverage and reserve funds established in connection with the bonds issued pursuant to this article, any remaining balance in the school building debt service fund may be transferred to the school construction fund created in subsection (c) of this section and used by the school building authority in its discretion to finance the cost of school construction or improvement projects authorized in accordance with the provisions of section sixteen of this article on a cash basis.
     (c) There is continued in the state treasury a special revenue fund named the school construction fund into which shall be deposited the amounts specified in section thirty, article fifteen, chapter eleven of this code and section eighteen-a, article twenty- two, chapter twenty-nine of this code, together with any moneys appropriated to the fund by the Legislature: Provided, That for the school year beginning the first day of July, two thousand four, only, funds from the excess lottery allocated in said section shall not be transferred to the school construction fund and, in lieu thereof, made available for legislative appropriation: Provided, however, That for the school year beginning the first day of July, two thousand four, only, up to five million dollars of the amounts in the fund may be appropriated by the Legislature for budget shortfalls. Expenditures from the school construction fund shall be for the purposes set forth in this article, including lease-purchase payments under agreements made pursuant to subsection (e), section fifteen of this article and section nine, article five of this chapter and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The school construction fund shall be an interest-bearing account, with the interest credited to and deposited in the school construction fund and expended in accordance with the provisions of this article. Deposits to and expenditures from the school construction fund are subject to the provisions of subsection (i) (k), section fifteen of this article.
     (d) There is continued in the state treasury a special revenue fund named the school major improvement fund into which shall be deposited the amounts specified in section thirty, article fifteen, chapter eleven of this code, together with any moneys appropriated to the fund by the Legislature. Expenditures from the school major improvement fund shall be for the purposes set forth in this article and are authorized from collections in accordance with the provisions of article three, chapter twelve of this code and from other revenues annually appropriated by the Legislature from lottery revenues as authorized by section eighteen, article twenty-two, chapter twenty-nine of this code pursuant to the provisions set forth in article two, chapter five-a of this code. Amounts collected which are found, from time to time, to exceed the funds needed for purposes set forth in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the Legislature. The school major improvement fund shall be an interest-bearing account, with interest being credited to and deposited in the school major improvement fund and expended in accordance with the provisions of this article.
     (e) The Legislature finds and declares that the supreme court of appeals of West Virginia has held that the issuance of additional revenue bonds authorized under the school building authority act, as enacted in this article prior to the twentieth day of July, one thousand nine hundred ninety-three, constituted an indebtedness of the state in violation of section four, article X of the constitution of West Virginia, but that revenue bonds issued under this article prior to the twentieth day of July, one thousand nine hundred ninety-three, are not invalid. The Legislature further finds and declares that the financial capacity of a county to construct, lease and improve school facilities depends upon the county's bonding capacity (local property wealth), voter willingness to pass bond issues and the county's ability to reallocate other available county funds instead of criteria related to educational needs or upon the ability of the school building authority created in this article to issue bonds that comply with the holding of the West Virginia supreme court of appeals or otherwise assist counties with the financing of facilities construction and improvement. The Legislature further finds and declares that this section, as well as section eighteen, article twenty-two, chapter twenty-nine of this code, have been reenacted during the first extraordinary session of the West Virginia Legislature in the year one thousand nine hundred ninety-four in an attempt to comply with the holding of the supreme court of appeals of West Virginia.
     The Legislature further finds and declares that it intends, through the reenactment of this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to dedicate a source of state revenues to special revenue funds for the purposes of paying the debt service on bonds and refunding bonds issued subsequent to the first day of January, one thousand nine hundred ninety-four, the proceeds of which will be used for the construction and improvement of school building facilities. The Legislature further finds and declares that it intends, through the reenactment of this section and section thirty, article fifteen, chapter eleven of this code and section eighteen, article twenty-two, chapter twenty-nine of this code, to appropriate revenues to two special revenue funds for the purposes of construction and improvement of school building facilities. Furthermore, the Legislature intends to encourage county boards to maintain existing levels of county funding for construction, improvement and maintenance of school building facilities and to generate additional county funds for those purposes through bonds and special levies whenever possible. The Legislature further encourages the school building authority, the state board and county boards of education to propose uniform project specifications for comparable projects whenever possible to meet county needs at the lowest possible cost.
     The Legislature further finds and declares that it intends, through the reenactment of this section and section eighteen, article twenty-two, chapter twenty-nine of this code, to comply with the provisions of sections four and six, article X of the constitution of West Virginia; and section one, article XII of said constitution.
§18-9D-8. Use of proceeds of bonds; bonds exempt from taxation.
     (a) The maximum aggregate face value of bonds that may be issued by the authority, for which the moneys in the school building debt service fund are to be pledged, is four hundred million dollars. The issuance of revenue bonds under the provisions of this article shall be authorized, from time to time, by resolution or resolutions of the school building authority which shall set forth the proposed projects authorized in accordance with the provisions of section sixteen of this article and provide for the issuance of bonds in amounts sufficient, when sold as hereinafter provided in this section, to provide moneys considered sufficient by the authority to pay the costs, less the amounts of any other funds available for the costs or from any appropriation, grant or gift for the costs: Provided, That bond issues from which bond revenues are to be distributed in accordance with section fifteen of this article shall for projects authorized pursuant to the provisions of section sixteen of this article are not be required to set forth the proposed projects in the resolution. The resolution shall prescribe the rights and duties of the bondholders and the school building authority and, for that purpose, may prescribe the form of the trust agreement hereinafter referred to in this section. The bonds may be issued, from time to time, in such amounts; shall be of such series; bear such date or dates; mature at such time or times not exceeding forty years from their respective dates; bear interest at such rate or rates; be in such denominations; be in such form, either coupon or registered, carrying such registration, exchangeability and interchangeability privileges; be payable in such medium of payment and at such place or places within or without the state; be subject to such terms of redemption at such prices not exceeding one hundred five percent of the principal amount of the bonds; and be entitled to such priorities on the revenues paid into the fund pledged for repayment of the bonds as may be provided in the resolution authorizing the issuance of the bonds or in any trust agreement made in connection with the bonds: Provided, however, That revenue bonds issued on or after the first day of January, one thousand nine hundred ninety- four, which are secured by lottery proceeds shall mature at such time or times not exceeding ten years from their respective dates.
     (b) The bonds shall be signed by the governor, and by the president or vice president of the authority, under the great seal of the state, attested by the secretary of state, and the coupons attached to the bonds shall bear the facsimile signature of the president or vice president of the authority. In case any of the officers whose signatures appear on the bonds or coupons cease to be officers before the delivery of the bonds, the signatures shall nevertheless be valid and sufficient for all purposes the same as if such the officers had remained in office until such the delivery. The revenue bonds shall be sold in the manner determined by the authority to be for the best interests of the state.
     (c) Any pledge of revenues made by the school building authority for revenue bonds issued prior to the twentieth day of July, one thousand nine hundred ninety-three, pursuant to this article is valid and binding between the parties from the time the pledge is made; and the revenues pledged shall immediately be subject to the lien of the pledge without any further physical delivery thereof of the revenues pledged or further act. The lien of the pledge is valid and binding against all parties having claims of any kind in tort, contract or otherwise, irrespective of whether the parties have notice of the lien of the pledge, and the pledge shall be a prior and superior charge over any other use of the revenues pledged.
     (d) The proceeds of any bonds shall be used solely for the purpose or purposes as may be generally or specifically set forth in the resolution authorizing those bonds and shall be disbursed in the manner and with the restrictions, if any, that the authority provides in the resolution authorizing the issuance of the bonds or in the trust agreement hereinafter referred to in this section securing the same bonds. If the proceeds of the bonds, by error in calculations or otherwise, are less than the cost of any projects specifically set forth in the resolution, additional bonds may in like manner be issued to provide the amount of the deficiency; and unless otherwise provided for in the resolution or trust agreement hereinafter mentioned, the additional bonds shall be considered to be of the same issue and are entitled to payment from the same fund, without preference or priority, as the bonds before issued for the projects. If the proceeds of bonds issued for the projects specifically set forth in the resolution authorizing the bonds issued by the authority exceed the cost of the bonds, the surplus may be used for any other projects determined by the school building authority authorized in accordance with the provisions of section sixteen of this article or in any other manner that the resolution authorizing the bonds provides. Prior to the preparation of definitive bonds, the authority may, under like restrictions, issue temporary bonds with or without coupons, exchangeable for definitive bonds upon the issuance of the definitive bonds.
     (e) After the issuance of any of revenue bonds, the revenues pledged for the revenue bonds shall not be reduced as long as any of the revenue bonds are outstanding and unpaid except under the terms, provisions and conditions that are contained in the resolution, trust agreement or other proceedings under which the revenue bonds were issued.
     (f) The revenue bonds and the revenue refunding bonds and bonds issued for combined purposes, together with the interest on the bonds, are exempt from all taxation by the state of West Virginia, or by any county, school district, municipality or political subdivision thereof.
     (g) To meet the operational costs of the school building authority, the school building authority may transfer to a special revenue account in the state treasury interest on any debt service reserve funds created within any resolution authorizing the issue of bonds or any trust agreement made in connection with the bonds for expenditure in accordance with legislative appropriation or allocation of appropriation.
     (h) Any school construction bonds issued under this section shall be issued on parity with any existing school building authority bonds previously issued under this article.
§18-9D-15. Legislative intent; allocation of money among categories of projects; lease-purchase options; limitation on time period for expenditure of project allocation; county maintenance budget requirements; project disbursements over period of years; preference for multicounty arrangements; submission of project designs; set-aside to encourage local participation; etc.

     (a) It is the intent of the Legislature to empower the school building authority to facilitate and provide state funds and to administer all federal funds provided for the construction and major improvement of school facilities so as to meet the educational needs of the people of this state in an efficient and economical manner. The authority shall make funding determinations in accordance with the provisions of this article and shall assess existing school facilities and each facility's school major improvement plan in relation to the needs of the individual student, the general school population, the communities served by the facilities and facility needs statewide.
     (b) An amount that is no more than three percent of the sum of moneys that are determined by the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys paid into the school major improvement fund pursuant to section six of this article, may be allocated and may be expended by the authority for projects authorized in accordance with the provisions of section sixteen of this article that service the educational community statewide or, upon application by the state board, for educational programs that are under the jurisdiction of the state board. In addition, upon application by the state board or the administrative council of an area vocational educational center established pursuant to article two-b of this chapter, the authority may allocate and expend under this subsection moneys for school major improvement projects authorized in accordance with the provisions of section sixteen of this article proposed by the state board or an administrative council for school facilities under the direct supervision of the state board or an administrative council, respectively. Furthermore, upon application by a county board, the authority may allocate and expend under this subsection moneys for school major improvement projects for vocational programs at comprehensive high schools, vocational schools cooperating with community and technical college programs, or both. Each county board is encouraged to cooperate with community and technical colleges in the use of existing or development of new vocational- technical facilities. All projects eligible for funds from this subsection shall be submitted directly to the authority which shall be solely responsible for the project's evaluation: Provided, That the authority may not expend any moneys for a school major improvement project proposed by the state board or the administrative council of an area vocational educational center unless the state board or an administrative council has submitted a ten-year school major improvement plan, to be updated annually, pursuant to section sixteen of this article: facilities plan: Provided, however, That the authority shall, before allocating any moneys to the state board or the administrative council of an area vocational educational center for a school improvement project, consider all other funding sources available for the project.
     (c) An amount that is no more than two percent of the moneys that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, shall be set aside by the authority as an emergency fund to be distributed in accordance with the guidelines adopted by the authority.
     (d) An amount that is no more than five percent of the moneys that are determined by the authority to be available for distribution during the current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, may be reserved by the authority for multiuse vocational-technical education facilities projects that may include post-secondary programs as a first priority use. The authority may allocate and expend under this subsection moneys for any purposes authorized in this article on multiuse vocational-technical education facilities and for equipment and equipment updates at the facilities projects, including equipment and equipment updates at the facilities, authorized in accordance with the provisions of section sixteen of this article. If the projects approved under this subsection do not require the full amount of moneys reserved, moneys above the amount required may be allocated and expended in accordance with other provisions of this article. A county board, the state board, an administrative council or the joint administrative board of a vocational-technical education facility which includes post- secondary programs may propose projects for facilities or equipment, or both, which are under the direct supervision of the respective body: Provided, That the authority shall, before allocating any moneys for a project under this subsection, consider all other funding sources available for the project.
     (e) The remaining moneys determined by the authority to be available for distribution during the then current fiscal year from: (1) Moneys paid into the school building capital improvements fund pursuant to section ten, article nine-a of this chapter; (2) the issuance of revenue bonds for which moneys in the school building debt service fund are pledged as security; (3) moneys paid into the school construction fund pursuant to section six of this article; and (4) any other moneys received by the authority, except moneys deposited into the school major improvement fund, shall be allocated and expended on the basis of need and efficient use of resources the basis to be determined by the authority for projects funded in accordance with the provisions of section sixteen of this article.
     (f) If a county board of education proposes to finance a project that is approved pursuant to authorized in accordance with section sixteen of this article through a lease with an option to purchase leased premises upon the expiration of the total lease period pursuant to an investment contract, the authority may allocate no moneys to the county board in connection with the project: Provided, That the authority may transfer moneys to the state board of education which, with the authority, shall lend the amount transferred to the county board to be used only for a one- time payment due at the beginning of the lease term, made for the purpose of reducing annual lease payments under the investment contract, subject to the following conditions:
     (1) The loan shall be secured in the manner required by the authority, in consultation with the state board, and shall be repaid in a period and bear interest at a rate as determined by the state board and the authority and shall have such any terms and conditions as that are required by the authority, all of which shall be set forth in a loan agreement among the authority, the state board and the county board;
     (2) The loan agreement shall provide for the state board and the authority to defer the payment of principal and interest upon any loan made to the county board during the term of the investment contract, and annual renewals of the investment contract, among the state board, the authority, the county board and a lessor: Provided, That in the event a county board which has received a loan from the authority for a one-time payment at the beginning of the lease term does not renew the subject lease annually until performance of the investment contract in its entirety is completed, the county board is in default and the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the authority and the county board: Provided, however, That if a county board renews the lease annually through the performance of the investment contract in its entirety, the county board shall exercise its option to purchase the leased premises: Provided further, That the failure of the county board to make a scheduled payment pursuant to the investment contract constitutes an event of default under the loan agreement: And provided further, That upon a default by a county board, the principal of the loan, together with all unpaid interest accrued to the date of the default, shall, at the option of the authority, in consultation with the state board, become due and payable immediately or subject to renegotiation among the state board, the authority and the county board: And provided further, That if the loan becomes due and payable immediately, the authority, in consultation with the state board, shall use all means available under the loan agreement and law to collect the outstanding principal balance of the loan, together with all unpaid interest accrued to the date of payment of the outstanding principal balance; and
     (3) The loan agreement shall provide for the state board and the authority to forgive all principal and interest of the loan upon the county board purchasing the leased premises pursuant to the investment contract and performance of the investment contract in its entirety.
     (g) To encourage county boards to proceed promptly with facilities planning and to prepare for the expenditure of any state moneys derived from the sources described in this subsection section, any county board failing or other entity to whom moneys are allocated by the authority that fails to expend the money within three years of the allocation to the county board shall forfeit the allocation and thereafter is ineligible for further allocations pursuant to this subsection section until the county board it is ready to expend funds in accordance with an approved facilities plan: Provided, That the authority may authorize an extension beyond the three-year forfeiture period not to exceed an additional two years. Any amount forfeited shall be added to the total funds available in the school construction fund of the authority for future allocation and distribution. Funds may not be distributed to any county board that does not have a comprehensive educational facility for any project under this article unless the responsible entity has a facilities plan approved by the state board and the school building authority or to any county board that is not and is prepared to commence expenditure of the funds during the fiscal year in which the moneys are distributed.
     (h) The remaining moneys that are determined by the authority to be available for distribution during the then current fiscal year from moneys paid into the school major improvement fund pursuant to section six of this article shall be allocated and distributed on the basis of need and efficient use of resources the basis to be determined by the authority for projects authorized in accordance with the provisions of section sixteen of this article: Provided, That the moneys may not be distributed to any county board that does not have an approved school major improvement for any project under this section unless the responsible entity has a facilities plan or to any county board that is not prepared approved by the state board and the authority and is to commence expenditures of the funds during the fiscal year in which the moneys are distributed: Provided, however, That any moneys allocated to a county board project and not distributed to that county board for that project shall be deposited in an account to the credit of that county board the project, the principal amount to remain to the credit of and available to the county board project for a period of two years. Any moneys which are unexpended after a two-year period shall be redistributed on the basis of need from the school major improvement fund in that fiscal year.
     (i) No local matching funds may be required under the provisions of this section. However, the responsibilities of the county boards of education to maintain school facilities are not negated by the provisions of this article. To be eligible to receive an allocation of school major improvement funds from the authority, a county board must have expended in the previous fiscal year an amount of county moneys equal to or exceeding the lowest average amount of money included in the county board's maintenance budget over any three of the previous five years and must have budgeted an amount equal to or greater than the average in the current fiscal year: Provided, That the state board of education shall promulgate rules relating to county boards' maintenance budgets, including items which shall be included in the budgets.
     (j) Any county board may use moneys provided by the authority under this article in conjunction with local funds derived from bonding, special levy or other sources. Distribution to a county board, or to the state board or the administrative council of an area vocational educational center pursuant to subsection (b) of this section, may be in a lump sum or in accordance with a schedule of payments adopted by the authority pursuant to guidelines adopted by the authority.
     (k) Funds in the school construction fund shall first be transferred and expended as follows:
     Any funds deposited in the school construction fund shall be expended first in accordance with an appropriation by the Legislature. To the extent that funds are available in the school construction fund in excess of that amount appropriated in any fiscal year, the excess funds may be expended for projects authorized in accordance with the provisions of section sixteen of this article. Any projects which the authority identified and announced for funding on or before the first day of August, one thousand nine hundred ninety-five, or identified and announced for funding on or before the thirty-first day of December, one thousand nine hundred ninety-five, shall be funded by the authority in an amount which is not less than the amount specified when the project was identified and announced.
     (l) It is the intent of the Legislature to encourage county boards to explore and consider arrangements with other counties that may facilitate the highest and best use of all available funds, which may result in improved transportation arrangements for students or which otherwise may create efficiencies for county boards and the students. In order to address the intent of the Legislature contained in this subsection, the authority shall grant preference to those projects which involve multicounty arrangements as the authority shall determine reasonable and proper.
     (m) County boards shall submit all designs for construction of new school buildings to the school building authority for review and approval prior to preparation of final bid documents: Provided, That a vendor who has been debarred pursuant to the provisions of sections thirty-three-a through thirty-three-f, inclusive, article three, chapter five-a of this code may not bid on or be awarded a contract under this section.
     (n) The authority may elect to disburse funds for approved construction projects over a period of more than one year subject to the following:
     (1) The authority may not approve the funding of a school construction project for over a period of more than three years;
     (2) The authority may not approve the use of more than fifty percent of the revenue available for distribution in any given fiscal year for projects that are to be funded over a period of more than one year; and
     (3) In order to encourage local participation in funding school construction projects, the authority may set aside limited funding, not to exceed five hundred thousand dollars, in reserve for one additional year to provide a county the opportunity to complete financial planning for a project prior to the allocation of construction funds. Any such funding shall be on a reserve basis and converted to a part of the construction grant only after all project budget funds have been secured and all county commitments have been fulfilled. Failure of the county to solidify the project budget and meet its obligations to the state within eighteen months of the date the funding is set aside by the authority will result in expiration of the reserve and the funds shall be reallocated by the authority in the succeeding funding cycle.
§18-9D-16. Authority to establish guidelines and procedures for facilities and major improvement plans; guidelines for modifications and updates, etc.; guidelines for project evaluation; submission of certified list of projects to be funded; department on-site inspection of facilities; enforcement of required changes or additions to project plans.

     (a) The authority shall establish guidelines and procedures to promote the intent and purposes of this article and assure the prudent and resourceful expenditure of state funds for projects under this article including, but not limited to, the following:
     (1) Guidelines and procedures for the facilities plans, school major improvement plans and projects submitted in the furtherance of the plans that address, but are not limited to, the following:
     (A) All of the elements of the respective plans as defined in section two of this article;
     (B) The procedures for a county to submit a preliminary plan, a plan outline or a proposal for a plan to the authority prior to the submission of the facilities plan. The preliminary plan, plan outline or proposal for a plan shall be the basis for a consultation meeting between representatives of the county and members of the authority, including at least one citizen member, which shall be held promptly following submission of the preliminary plan, plan outline or proposal for a plan to assure understanding of the general goals of this article and the objective criteria by which projects will be evaluated, to discuss ways the plan may be structured to meet those goals, and to assure efficiency and productivity in the project approval process;
     (C) The manner, time line and process for the submission of each plan and annual plan updates to the authority;
     (D) The requirements for public hearings, comments or other means of providing broad-based input on plans and projects under this article within a reasonable time period as the authority may consider appropriate. The submission of each plan must be accompanied by a synopsis of all comments received and a formal comment by the county board, the state board or the administrative council of an area vocational educational center submitting the plan;
     (E) Any project specifications and maintenance specifications considered appropriate by the authority including, but not limited to, such matters as energy efficiency, preferred siting, construction materials, maintenance plan and any other matter related to how the project is to proceed;
     (F) A prioritization by the county board, the state board or the administrative council submitting the plan of each project contained in the plan. In prioritizing the projects, the county board, the state board or the administrative council submitting the plan shall make determinations in accordance with the objective criteria formulated by the school building authority in accordance with this section. The priority list is one of the criteria that shall be considered by the authority deciding how the available funds should be expended;
     (G) The objective means to be set forth in the plan and used in evaluating implementation of the overall plan and each project included in the plan. The evaluation must measure how the plan addresses the goals of this article and any guidelines adopted under this article, and how each project is in furtherance of the facilities plan and school major improvement plan, as applicable, as well as the importance of the project to the overall success of the facilities plan or school major improvement plan and the overall goals of the authority; and
     (H) Any other matters considered by the authority to be important reflections of how a construction project or a major improvement project or projects will further the overall goals of this article.
     (2) Guidelines and procedures which may be adopted by the authority for requiring that a county board modify, update, supplement or otherwise submit changes or additions to an approved facilities plan or for requiring that a county board, the state board or the administrative council of an area vocational educational center modify, update, supplement or otherwise submit changes or additions to an approved school major improvement plan. The authority shall provide reasonable notification and sufficient time for the change or addition as delineated in guidelines developed by the authority.
     (3) Guidelines and procedures for evaluating project proposals that are submitted to the authority that address, but are not limited to, the following:
     (A) Any project funded by the authority must be in furtherance of the facilities plan or school major improvement plan and in compliance with the guidelines established by the authority;
     (B) If a project is to benefit more than one county in the region, the facilities plan must state the manner in which the cost and funding of the project will be apportioned among the counties;
     (C) If a county board proposes to finance a construction project through a lease with an option to purchase pursuant to an investment contract as described in subsection (f), section fifteen of this article, the specifications for the project must include the term of the lease, the amount of each lease payment, including the payment due upon exercise of the option to purchase, and the terms and conditions of the proposed investment contract; and
     (D) The objective criteria for the evaluation of projects which shall include, but are not limited to, the following:
     (i) How the current facilities do not meet and how the plan and any project under the plan meets the following:
     (I) Student health and safety including, but not limited to, critical health and safety needs;
     (II) Economies of scale, including compatibility with similar schools that have achieved the most economical organization, facility use and pupil-teacher ratios;
     (III) Reasonable travel time and practical means of addressing other demographic considerations;
     (IV) Multicounty and regional planning to achieve the most effective and efficient instructional delivery system;
     (V) Curriculum improvement and diversification, including the use of instructional technology, distance learning and access to advanced courses in science, mathematics, language arts and social studies;
     (VI) Innovations in education;
     (VII) Adequate space for projected student enrollments;
     (VIII) The history of efforts taken by the county board to propose or adopt local school bond issues or special levies to the extent constitutionally permissible; and
     (IX) Regularly scheduled preventive maintenance; and
     (ii) How the project will assure the prudent and resourceful expenditure of state funds and achieve the purposes of this article for constructing, expanding, renovating or otherwise improving and maintaining school facilities for a thorough and efficient education.
     (4) Guidelines and procedures for evaluating projects for funding that address, but are not limited to, the following:
     (A) Requiring each county board's facilities plan and school major improvement plan to prioritize all the construction projects or major improvement projects, respectively, within the county. A school major improvement plan submitted by the state board or the administrative council of an area vocational educational center shall prioritize all the school improvement projects contained in the plan. The priority list shall be one of the criteria to be considered by the authority in determining how available funds shall be expended. In prioritizing the projects, the county board, the state board or the administrative council submitting a plan shall make determinations in accordance with the objective criteria formulated by the school building authority;
     (B) The return to each county submitting a project proposal an explanation of the evaluative factors underlying the decision of the authority to fund or not to fund the project; and
     (C) The allocation and expenditure of funds in accordance with this article, subject to the availability of funds.
     (b) Prior to final action on approving projects for funding under this article, the authority shall submit a certified list of the projects to the joint committee on government and finance.
     (c) The state department of education shall conduct on-site inspections, at least annually, of all facilities which have been funded wholly or in part by moneys from the authority or state board to ensure compliance with the county board's facilities plan and school major improvement plan as related to the facilities; to preserve the physical integrity of the facilities to the extent possible; and to otherwise extend the useful life of the facilities: Provided, That the state board shall submit reports regarding its on-site inspections of facilities to the authority within thirty days of completion of the on-site inspections: Provided, however, That the state board shall promulgate rules regarding the on-site inspections and matters relating thereto, in consultation with the authority, as soon as practical and shall submit proposed rules for legislative review no later than the first day of December, one thousand nine hundred ninety-four.
     (d) Based on its on-site inspection or notification by the authority to the state board that the changes or additions to a county board's facilities plan or school major improvement plan required by the authority have not been implemented within the time period prescribed by the authority, the state board shall restrict the use of the necessary funds or otherwise allocate funds from moneys appropriated by the Legislature for those purposes set forth in section nine, article nine-a of this chapter.;
     And,
     That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
     Eng. House Bill No. 4601--A Bill to amend and reenact §18-9A-7 of the code of West Virginia, 1931, as amended; and to amend and reenact §18-9D-2, §18-9D-6, §18-9D-8, §18-9D-15 and §18-9D-16 of said code, all relating to public education; suspending basic foundation allocation for bus replacement and providing allocation for academic trips for one school year; school building authority; redefining certain terms; correcting references; allowing expenditure of certain moneys for vocational programs at comprehensive high schools and vocational schools cooperating with community and technical college programs; encouraging cooperation relating to vocational-technical facilities; authorizing appropriation of up to certain amount of school construction funds for budget purposes for next school year only; providing that excess lottery revenues not be transferred to school construction fund for the next school year only, with funds made available for legislative appropriation; project submission and evaluation; requiring facilities plan as condition of receiving funds; providing for certain guidelines and procedures by authority for plans, plan modifications and evaluating projects; clarifying that certain revenues can only be expended on projects authorized in accordance with the guidelines and procedures section; and providing for certified list of projects to joint committee.
                              Respectfully submitted,
     Larry A. Williams, Chair, Randy Swartzmiller, Everette W. Anderson, Jr., Conferees of the part of the House of Delegates.
     Robert H. Plymale, Chair, Larry J. Edgell, Donna J. Boley, Conferees on the part of the Senate.
     Senator Plymale, Senate cochair of the committee of conference, was recognized to explain the report.
     Thereafter, on motion of Senator Plymale, the report was taken up for immediate consideration and adopted.
     Engrossed House Bill No. 4601, as amended by the conference report, was then put upon its passage.
     On the passage of the bill, as amended, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Minear, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--26.
     The nays were: Guills, Harrison, McKenzie, Oliverio, Smith, Sprouse and Weeks--7.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4601) passed with its conference amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Minear, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--26.
     The nays were: Guills, Harrison, McKenzie, Oliverio, Smith, Sprouse and Weeks--7.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4601) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, to take effect from passage, and requested the concurrence of the Senate in the adoption thereof, as to
     Eng. House Bill No. 4107, Allowing licensees of charitable bingo and raffle games to transfer game proceeds between their bingo and raffle operations.
     Whereupon, Senator Fanning, from the committee of conference on matters of disagreement between the two houses, as to
     Eng. House Bill No. 4107, Allowing licensees of charitable bingo and raffle games to transfer game proceeds between their bingo and raffle operations.
     Submitted the following report, which was received:
     Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed House Bill No. 4107 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
     That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause, and agree to the same as follows:
     That §47-20-11, §47-20-12a and §47-20-16 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §47-21-12 and §47-21-16 of said code be amended and reenacted, all to read as follows:
ARTICLE 20. CHARITABLE BINGO.
§47-20-11. Operator of bingo games and related concessions.
     
(a) Except as provided in sections thirteen and twenty-two of this article, the only persons, as defined in section two of this article, who are residents that may participate in any manner in the conduct of any bingo game or operate any concession in conjunction with a bingo occasion are either:
_____
(1) Residents of this state and who are active members of the licensee organization or its authorized auxiliary organization and who have been active members in good standing of the licensee organization or its authorized auxiliary for at least two years prior to the date of filing of the application for a charitable bingo license or the most recent filing of an application for renewal of the license; may participate in any manner in the conduct of any bingo game or operate any concession in conjunction with a bingo occasion: Provided, That notwithstanding or
_____
(2) Employees of the licensee organization or its authorized auxiliary organization who are:
_____(A) Residents of this state;
_____(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in which the bingo operation is conducted; or
_____(C) Residents of a bordering state who reside within thirty- five miles of the county in which the bingo operation is conducted.
_____
(b) Notwithstanding anything contained in this article to the contrary, no individual under the age of eighteen years may, directly or indirectly, participate in the conduct of a bingo game, except for junior firefighters, in accordance with the provisions of this article.
§47-20-12a. Compensation of bingo operator; number of employees.
     (a) Within the guidelines set forth in subsections (b), (c) and (d) of this section, a licensee may pay a salary, the minimum of which shall be established at is the federal minimum wage and the maximum being of which is six dollars and fifty cents per hour, to operators of bingo games who are active either:
_____
(1) Active members of the licensee organization and who have been active members in good standing for at least two years prior to the date of filing of the application for a charitable bingo license or the most recent filing of an application for renewal of the license; or
_____
(2) Employees of the licensee organization or its authorized auxiliary organization who are:
_____(A) Residents of this state;
_____(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in which the bingo operation is conducted; or
_____(C) Residents of a bordering state who reside within thirty- five miles of the county in which the bingo operation is conducted.

     (b) If the licensee's gross receipts from bingo occasions equal or exceed one hundred thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than eight operators.
     (c) If the licensee's gross receipts from bingo occasions are less than one hundred thousand dollars, but equal or exceed fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than five operators.
     (d) If the licensee's gross receipts from bingo occasions are less than fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than three operators.
     (e) If the licensee also possesses a super bingo license, it may pay a salary to not more than fifteen operators during the super bingo occasion.
     (f) In the case of a licensee lawfully holding a charitable bingo occasion simultaneously with a charitable raffle occasion, the number of paid charitable bingo operator employees allowed under this limitation for bingo licensees shall be is in addition to the number of charitable raffle operator employees allowed under section fifteen, article twenty-one of this chapter. Licensees holding simultaneous occasions shall pay bingo operators from the proceeds of bingo operations and shall pay raffle operators from the proceeds of raffle operations and the charitable bingo fund and the charitable raffle fund and payments from the funds shall may not be commingled.
     (g) For purposes of the limitations set forth in this section, the term "operator" or "bingo operator" or "raffle operator" shall does not include concession stand workers. Wages paid to concession workers shall may not exceed six dollars and fifty cents per hour.
§47-20-16. Records; commissioner audit.
     Any licensee which holds a bingo occasion as provided by this article shall maintain a separate checking account and separate book-keeping procedure for its bingo operations: Provided, That nothing in this article restricts a licensee from transferring moneys in the account from a bingo occasion to an account created under section sixteen, article twenty-one of this chapter in an amount not to exceed the actual loss of the raffle occasion receiving the transfer: Provided, however, That money transferred shall be withdrawn only by checks having preprinted consecutive numbers and made payable to the account created under said section. Money for expenses shall be withdrawn only by checks having preprinted consecutive numbers and made payable to a specific person, firm or corporation and at no time shall a check be made payable to cash. A licensee shall maintain all records required by this article for at least three years and the records shall be open to the commissioner for reasonable inspection. Whenever the tax commissioner has reasonable cause to believe a licensee has violated any of the provisions of this article, he or she may perform or cause to be performed an audit of the licensee's books and records: Provided further, That the tax commissioner shall perform or cause to be performed an audit of the books and records of any licensee that has awarded total prizes in excess of one hundred seventy-five thousand dollars. The tax commissioner shall file a copy of the completed audit with the county commission of the county wherein the licensee holds bingo occasions.
ARTICLE 21. CHARITABLE RAFFLES.
§47-21-12. Compensation.
     (a) A licensee may pay a salary, the minimum of which shall be established at is the federal minimum wage and the maximum of which shall be is six dollars and fifty cents per hour, to operators of charitable raffle games who are active either:
_____
(1) Active members of the licensee organization and who have been active members in good standing for at least two years prior to the date of filing of the application for a charitable raffle license or the most recent filing of an application for renewal of the license; or
_____
(2) Employees of the licensee organization or its authorized auxiliary organization who are:
_____(A) Residents of this state;
_____(B) Residents of a state bordering this state if the county of his or her residence is contiguous to the county in this state in which the raffle operation is conducted; or
_____(C) Residents of a bordering state who reside within thirty- five miles of the county in which the raffle operation is conducted.

     (b) If the licensee's gross receipts from raffle occasions equal or exceed one hundred thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than eight operators.
     (c) If the licensee's gross receipts from charitable raffle occasions are less than one hundred thousand dollars, but equal or exceed fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to not more than five operators.
     (d) If the licensee's gross receipts from charitable raffle occasions are less than fifty thousand dollars for the licensee's most recently filed annual financial report, a salary may be paid to no more than three operators.
     (e) In the case of a licensee lawfully holding a charitable bingo occasion simultaneously with a charitable raffle occasion, the number of paid charitable raffle operator employees allowed under this limitation for charitable raffle licensees is in addition to the number of charitable bingo operator employees allowed under section twelve-a, article twenty of this chapter. Licensees holding simultaneous occasions shall pay bingo operators from the proceeds of bingo operations and shall pay raffle operators from the proceeds of raffle operations and the charitable bingo fund and the charitable raffle fund and payments from the funds shall may not be commingled.
     (f) For purposes of the limitations set forth in this section, the term "operator" or "bingo operator" or "raffle operator" shall does not include concession stand workers. Wages paid to concession workers shall may not exceed six dollars and fifty cents per hour.
§47-21-16. Records; commissioner audit.
     Any licensee which holds a raffle occasion as provided by this article shall maintain a separate account and separate book-keeping procedure for its raffle operations: Provided, That nothing in this article restricts a licensee from transferring moneys in the account from a raffle occasion to an account created under section sixteen, article twenty of this chapter in an amount not to exceed the actual loss of the raffle occasion receiving the transfer: Provided, however, That money transferred shall be withdrawn only by checks having preprinted consecutive numbers and made payable to the account created under said section. All records required by this article shall be maintained for at least three years and shall be open to the commissioner for reasonable inspection. Whenever the commissioner has reasonable cause to believe a licensee has violated any of the provisions of this article, he may perform or cause to be performed an audit of the licensee's books and records.;
     And,
     That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
     Eng. House Bill No. 4107--A Bill to amend and reenact §47-20-11, §47-20-12a and §47-20-16 of the code of West Virginia, 1931, as amended; and to amend and reenact §47-21-12 and §47-21-16 of said code, all relating to charitable bingo and charitable raffles; allowing certain employees to operate bingo and raffle games; allowing game proceeds to be transferred, by check, between raffle and bingo accounts to offset losses; and allowing certain residents of other states to be employed by charitable bingo and charitable raffle operations.
                              Respectfully submitted,
     K. Steven Kominar, Chair, William F. Stemple, Robert A. Schadler, Conferees on the part of the House of Delegates.
     John Pat Fanning, Chair, Joseph M. Minard, Andy McKenzie, Conferees on the part of the Senate.
     On motions of Senator Fanning, severally made, the report of the committee of conference was taken up for immediate consideration and adopted.
     Engrossed House Bill No. 4107, as amended by the conference report, was then put upon its passage.
     On the passage of the bill, as amended, the yeas were: Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--27.
     The nays were: Boley, Guills, Harrison, Smith, Sprouse and Weeks--6.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4107) passed with its conference amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--27.
     The nays were: Boley, Guills, Harrison, Smith, Sprouse and Weeks--6.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 4107) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the adoption by that body of the committee of conference report, passage as amended by the conference report with its conference amended title, to take effect from passage, and requested the concurrence of the Senate in the adoption thereof, as to
     Eng. Com. Sub. for House Bill No. 4377, Assessing a penalty on those physicians who fail to pay the special assessment.
     Whereupon, Senator Kessler, from the committee of conference on matters of disagreement between the two houses, as to
     Eng. Com. Sub. for House Bill No. 4377, Assessing a penalty on those physicians who fail to pay the special assessment.
     Submitted the following report, which was received:
     Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Engrossed Committee Substitute for House Bill No. 4377 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
     That both houses recede from their respective positions as to the amendment of the Senate, striking out everything after the enacting clause, and agree to the same as follows:
     That §30-3-12 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §30-14-10 of said code be amended and reenacted; and that §33-20F-4, §33-20F-5 and §33-20F-7 of said code be amended and reenacted, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-12. Biennial renewal of license to practice medicine and surgery or podiatry; continuing education; rules; fee; inactive license.

     (a) A license to practice medicine and surgery or podiatry in this state is valid for a term of two years and shall be renewed upon a receipt of a reasonable fee, as set by the board, submission of an application on forms provided by the board and, beginning with the biennial renewal application forms completed by licensees and submitted to the board in one thousand nine hundred ninety-three, a certification in accordance with rules and regulations promulgated by the board in accordance with chapter twenty-nine-a of this code of participation in and successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, during the preceding two-year period. Continuing medical education satisfactory to the board is continuing medical education designated as Category I by the American medical association or the academy of family physicians and continuing podiatric education satisfactory to the board is continuing podiatric education approved by the council on podiatric education.
     In addition, the Legislature hereby finds and declares that it is in the public interest to encourage alternate categories of continuing education satisfactory to the board for physicians and podiatrists. In order to provide adequate notice of the same to physicians and podiatrists, no later than the first day of June, one thousand nine hundred ninety-one, the board shall file rules under the provisions of section fifteen, article three, chapter twenty-nine-a of this code, delineating any alternate categories of continuing medical or podiatric education which may be considered satisfactory to the board and any procedures for board approval of such continuing education.
     Notwithstanding any provision of this chapter to the contrary, failure to timely submit to the board a certification in accordance with rules and regulations promulgated by the board in accordance with chapter twenty-nine-a of this code of successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, shall, beginning the first day of July, one thousand nine hundred ninety-three, result in the automatic suspension of any license to practice medicine and surgery or podiatry until such time as the certification in accordance with rules and regulations promulgated by the board in accordance with chapter twenty-nine-a of this code, with all supporting written documentation, is submitted to and approved by the board.
     Any individual who accepts the privilege of practicing medicine and surgery or podiatry in this state is required to provide supporting written documentation of the continuing education represented as received within thirty days of receipt of a written request to do so by the board. If a licensee fails or refuses to provide supporting written documentation of the continuing education represented as received as required in this section, such failure or refusal to provide supporting written documentation is prima facie evidence of renewing a license to practice medicine and surgery or podiatry by fraudulent misrepresentation.
     (b) The board may renew, on an inactive basis, the license of a physician or podiatrist who is currently licensed to practice medicine and surgery or podiatry in, but is not actually practicing, medicine and surgery or podiatry in this state. A physician or podiatrist holding an inactive license shall not practice medicine and surgery or podiatry in this state. His or her inactive license may be converted by the board to an active one upon a written request to the board that accounts for his or her period of inactivity to the satisfaction of the board: Provided, That beginning on the first day of July, one thousand nine hundred ninety-three, such licensee submits written documentation of participation in and successful completion of a minimum of fifty hours of continuing medical or podiatric education satisfactory to the board, as appropriate to the particular license, during each preceding two-year period. An inactive license may be obtained upon receipt of a reasonable fee, as set by the board, and submission of an application on forms provided by the board on a biennial basis.
     (c) The board shall not require any physician or podiatrist who is retired or retiring from the active practice of medicine and surgery or the practice of podiatry and who is voluntarily surrendering their license to return to the board the license certificate issued to them by the board.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-10. Annual renewal of license; fee; refresher training a
     prerequisite; effect of failure to renew; reinstatement.
     
(a) All holders of certificates of license to practice as osteopathic physicians and surgeons in this state shall renew them biennially on or before the first day of July, by the payment of a reasonable renewal fee, the amount of such reasonable fee to be set by the board rules to the secretary of the board. The secretary of the board shall notify each certificate holder by mail of the necessity of renewing his or her certificate at least thirty days prior to the first day of July of each year.
     (b) As a prerequisite to renewal of a certificate of license issued by the board, each holder of such a certificate shall furnish biennially to the secretary of the board satisfactory evidence of having completed thirty-two hours of educational refresher course training, of which the total amount of hours must be AOA approved, and fifty percent of the required thirty-two hours shall be category (1).
     (c) The failure to renew a certificate of license shall operate as an automatic suspension of the rights and privileges granted by its issuance. The board may propose rules for legislative approval, pursuant to the provisions of article three, chapter twenty-nine-a of this code, providing that an osteopathic physician may renew a certificate of license on an inactive basis.
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(d) A certificate of license suspended by a failure to make a biennial renewal thereof may be reinstated by the board upon compliance of the certificate holder with the following requirements:
     (a) (1) Presentation to the board of satisfactory evidence of educational refresher training of quantity and standard approved by the board for the previous two years;
     (b) (2) Payment of all fees for the previous two years that would have been paid had the certificate holder maintained his or her certificate in good standing; and
     (c) (3) Payment to the board of a reasonable reinstatement fee, the amount of such reasonable fee to be set by the board rules.
CHAPTER 33. INSURANCE.

ARTICLE 20F.   PHYSICIANS' MUTUAL INSURANCE COMPANY.
§33-20F-4. Authorization for creation of company; requirements and limitations.

     (a) Subject to the provisions of this article, a physicians' mutual insurance company may be created as a domestic, private, nonstock, nonprofit corporation. As an incentive for its creation, the company may be eligible for funds from the Legislature in accordance with the provisions of section seven of this article. The company must remain for the duration of its existence a domestic mutual insurance company owned by its policyholders and may not be converted into a stock corporation, a for-profit corporation or any other entity not owned by its policyholders. The company may not declare any dividend to its policyholders; sell, assign or transfer substantial assets of the company; or write coverage outside this state, except for counties adjoining this state, until after any and all debts owed by the company to the state have been fully paid.
     (b) For the duration of its existence, the company is not and may not be considered a department, unit, agency or instrumentality of the state for any purpose. All debts, claims, obligations and liabilities of the company, whenever incurred, shall be the debts, claims, obligations and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer or employee of the state.
     (c) The moneys of the company are not and may not be considered part of the general revenue fund of the state. The debts, claims, obligations and liabilities of the company are not and may not be considered a debt of the state or a pledge of the credit of the state.
     (d) The company is not subject to provisions of article nine- a, chapter six of this code or the provisions of article one, chapter twenty-nine-b of this code.
     (e) (1) All premiums collected by the company are subject to the premium taxes, additional premium taxes, additional fire and casualty insurance premium taxes and surcharges contained in sections fourteen, and fourteen-a, fourteen-d and thirty-three, article three of this chapter: Provided, That while the loan to the company of moneys from the West Virginia tobacco settlement medical trust fund pursuant to section nine of this article remains outstanding, the commissioner may waive the company's premium taxes, and surcharges additional premium taxes and additional fire and casualty insurance premium taxes if payment would render the company insolvent or otherwise financially impaired.
     (2) On and after the first day of July, two thousand three, any premium taxes and surcharges additional premium taxes paid by the company and by any insurer on its medical malpractice line pursuant to sections fourteen and fourteen-a, article three of this chapter shall be temporarily applied toward replenishing the moneys appropriated from the West Virginia tobacco settlement medical trust fund pursuant to subsection (c), section two, article eleven- a, chapter four of this code pending repayment of the loan of such moneys by the company.
     (3) The state treasurer shall notify the commissioner when the moneys appropriated from the West Virginia tobacco settlement medical trust have been fully replenished, at which time the commissioner shall resume depositing premium taxes and surcharges additional premium taxes diverted pursuant to subdivision (2) of this subsection in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
     (4) Payments received by the treasurer from the company in repayment of any outstanding loan made pursuant to section nine of this article shall be deposited in the West Virginia tobacco settlement medical trust fund and dedicated to replenishing the moneys appropriated therefrom under subsection (c), section two, article eleven-a, chapter four of this code. Once the moneys appropriated from the West Virginia tobacco settlement medical trust fund have been fully replenished, the treasurer shall deposit any payments from the company in repayment of any outstanding loan made pursuant to section nine of this article in said fund and transfer a like amount from said fund to the commissioner for disbursement in accordance with the provisions of sections fourteen and fourteen-a, article three of this chapter.
§33-20F-5. Governance and organization.
     (a) (1) The board of risk and insurance management shall implement the initial formation and organization of the company as provided by this article.
     (2) From the first day of July, two thousand three, until the thirtieth day of June, two thousand four, the company shall be governed by a provisional board of directors consisting of the members of the board of risk and insurance management, the dean of the West Virginia university school of medicine or a physician representative designated by him or her, and five physician directors, elected by the policyholders whose policies are to be transferred to the company pursuant to section nine of this article.
     (3) Only physicians who are licensed to practice medicine in this state pursuant to article three or fourteen, chapter thirty of this code and who have purchased medical professional liability coverage from the board of risk and insurance management are eligible to serve as physician directors on the provisional board of directors. One of the physician directors shall be selected from a list of three physicians nominated by the West Virginia medical association. The board of risk and insurance management shall develop procedures for the nomination of the remaining physician directors and for the conduct of the election, to be held no later than the first day of June, two thousand three, of all of the physician directors, including, but not limited to, giving notice of the election to the policyholders. These procedures shall be exempt from the provisions of article three, chapter twenty-nine twenty-nine-a of this code.
     (b) From the first day of July, two thousand four, the company shall be governed by a board of directors consisting of eleven directors, as follows:
     (1) Five directors who are physicians licensed to practice medicine in this state by the board of medicine or the board of osteopathy, including at least one general practitioner and one specialist: Provided, That only physicians who have purchased medical professional liability coverage from the board of risk and insurance management are eligible to serve as physician representatives on the company's first board of directors;
     (2) Three directors who have substantial experience as an officer or employee of a company in the insurance industry;
     (3) Two directors with general knowledge and experience in business management who are officers and employees of the company and are responsible for the daily management of the company; and
     (4) One director who is a dean of a West Virginia school of medicine or osteopathy or his or her designated physician representative. This director's position shall rotate annually among the dean of the West Virginia university school of medicine, the dean of the Marshall university Joan C. Edwards school of medicine and the dean of the West Virginia school of osteopathic medicine. This director shall serve until such time as the moneys loaned to the company from the West Virginia tobacco settlement medical trust fund have been replenished as provided in subsection (e), section four of this article. After the moneys have been replenished to the West Virginia tobacco settlement medical trust fund, this director shall be a physician licensed to practice medicine in this state by the board of medicine or the board of osteopathy.
     (c) In addition to the eleven directors required by subsection (b) of this section, the bylaws of the company may provide for the addition of at least two directors who represent an entity or institution which lends or otherwise provides funds to the company.
     (d) The directors and officers of the company are to be chosen in accordance with the articles of incorporation and bylaws of the company. The initial board of directors selected in accordance with the provisions of subdivision (3), subsection (a) of this section shall serve for the following terms: (1) Three for four- year terms; (2) three for three-year terms; (3) three for two-year terms; and (4) two for one-year terms. Thereafter, the directors shall serve staggered terms of four years. If an additional director is added to the board as provided in subsection (c) of this section, his or her initial term shall be for four years. No director chosen pursuant to subsection (b) of this section may serve more than two consecutive terms.
     (e) The incorporators are to prepare and file articles of incorporation and bylaws in accordance with the provisions of this article and the provisions of chapters thirty-one and thirty-three of this code.
§33-20F-7. Initial capital and surplus; special assessment; failure to pay assessment; disposition of civil penalty collected.

     (a) There is hereby created in the state treasury a special revenue account designated as the "Board of Risk and Insurance Management Physicians' Mutual Insurance Company Account" solely for the purpose of receiving moneys transferred from the West Virginia tobacco medical trust fund pursuant to subsection (c), section two, article eleven-a, chapter four of this code for the company's use as initial capital and surplus.
     (b) On the first day of July, two thousand three, a special one-time assessment, in the amount of one thousand dollars, shall be imposed on every physician licensed by the board of medicine or by the board of osteopathy for the privilege of practicing medicine in this state: Provided, That the following physicians shall be exempt from the assessment:
     (1) A faculty physician who meets the criteria for full-time faculty under subsection (f), section one, article eight, chapter eighteen-b of this code, who is a full-time employee of a school of medicine or osteopathic medicine in this state, and who does not maintain a private practice;
     (2) A resident physician who is a graduate of a medical school or college of osteopathic medicine enrolled and who is participating in an accredited full-time program of post-graduate medical education in this state;
     (3) A physician who has presented suitable proof that he or she is on active duty in armed forces of the United States and who will not be reimbursed by the armed forces for the assessment;
     (4) A physician who receives more than fifty percent of his or her practice income from providing services to federally qualified health center as that term is defined in 42 U. S. C. § 1396d(l)(2); and
     (5) A physician who practices solely under a special volunteer medical license authorized by section ten-a, article three, chapter thirty of this code or section twelve-b, article fourteen of said chapter. The assessment is to be imposed and collected by the board of medicine and the board of osteopathy on forms prescribed by each licensing board; and
_____(6) A physician who is licensed on an inactive basis pursuant to subsection (b), section twelve, article three, chapter thirty of this code or section ten, article fourteen of said chapter or a physician who voluntarily surrenders his license: Provided, That a retired osteopathic physician, who submits to the board of osteopathy an affidavit asserting that he or she receives no monetary remuneration for any medical services provided, executed under the penalty of perjury and if executed outside the state of West Virginia, verified, may be considered to be licensed on an inactive basis: Provided, however, That if a physician elects to resume an active license to practice in the state and the physician has never paid the assessment, then as a condition of receiving an active status license, the physician must pay the special one-time assessment.
     (c) The entire proceeds of the special assessment collected pursuant to subsection (b) of this section shall be dedicated to the company. The board of medicine and the board of osteopathy shall promptly pay over to the company all amounts collected pursuant to this section to be used as policyholder surplus for the company.
     (d) Any physician who applies to purchase insurance from the company and who has not paid the assessment pursuant to subsection (b) of this section shall pay one thousand dollars to the company as a condition of obtaining insurance from the company.
     (e) A physician who fails to pay the special one-time assessment imposed on the first day of July, two thousand three, pursuant to subsection (b) of this section, on or before the thirtieth day of June, two thousand four, or when the license is due for renewal, whichever is earlier, and has received written notice of the assessment and option to elect inactive status, at least thirty days before the licensure renewal date or by the thirtieth day of May, two thousand four, is subject to a civil penalty in the amount of two hundred fifty dollars payable to either the board of medicine or the board of osteopathy. Furthermore, and notwithstanding any provision of chapter thirty to the contrary, the board of medicine or the board of osteopathy shall immediately suspend the license to practice medicine or podiatry of any physician who received notice and failed to pay the special assessment by the first day of July, two thousand four. Any license to practice medicine suspended pursuant to this section shall remain suspended until both the special assessment and the civil penalty are paid in full.
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(f) The entire proceeds of the civil penalty collected pursuant to subsection (e) of this section shall be dedicated to the company. The board of medicine and the board of osteopathy shall promptly pay over to the company all amounts collected pursuant to said subsection to be used as policyholder surplus for the company.
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(g) The requirements of subsections (b), (c), (d), (e) and (f) of this section shall terminate on the first day of January, two thousand eight, unless continued or reestablished.;
     And,
     That both houses recede from their respective positions as to the title of the bill and agree to the same as follows:
     Eng. Com. Sub. for House Bill No. 4377--A Bill to amend and reenact §30-3-12 of the code of West Virginia, 1931, as amended; to amend and reenact §30-14-10 of said code; and to amend and reenact §33-20F-4, §33-20F-5 and §33-20F-7 of said code, all relating to physicians generally; permitting a physician who allows his or her medical license to expire upon retirement to retain the license certificate issued by the board of medicine; requiring the board of osteopathy to propose legislative rules; clarifying and correcting the premium taxes that the physicians' mutual insurance company will be subject to; physicians exempt from the special assessment; providing for suspension and a civil penalty for failure to pay the special assessment; and sunset provision.
                              Respectfully submitted,
     Virginia Mahan, Chair, Bonnie Brown, John N. Ellem, Conferees on the part of the House of Delegates.
     Jeffrey V. Kessler, Chair, Evan H. Jenkins, Steve Harrison (Did not sign), Conferees on the part of the Senate.
     Senator Kessler, Senate cochair of the committee of conference, was recognized to explain the report.
     Thereafter, on motion of Senator Kessler, the report was taken up for immediate consideration and adopted.
     Engrossed Committee Substitute for House Bill No. 4377, as amended by the conference report, was then put upon its passage.
     On the passage of the bill, as amended, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4377) passed with its conference amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4377) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     The Senate again proceeded to the sixth order of business.
     Senator White presented a petition from Christi M. Viney and twenty-five West Virginia residents, supporting Senate Bill No. 74 (Relating to racial profiling by police during traffic stop).
     Referred to the Committee on the Judiciary.
     Without objection, the Senate returned to the third order of business.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 176, Relating to investments and investment practices of insurance companies.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page three, after the enacting section, by inserting the following:
ARTICLE 2. INSURANCE COMMISSIONER.
     
          
§33-2-2. Compensation and expenses of commissioner and employees; location of office.

     
The
Notwithstanding any other provisions in the code to the contrary, the commissioner shall receive an annual salary of forty- seven thousand eight hundred seventy-five thousand dollars and actual expenses incurred in the performance of official business, which compensation shall be in full for all services. The office of the commissioner shall be maintained in the capitol or other suitable place in Charleston. The commissioner may employ such persons and incur such expenses as may be necessary in the discharge of his or her duties and shall fix the compensation of such employees, but such compensation shall not exceed the appropriation therefor. The commissioner may reimburse employees for reasonable expenses incurred for job-related training and educational seminars and courses. All compensation for salaries and expenses of the commissioner and his or her employees shall be paid monthly out of the state treasury by requisition upon the auditor, properly certified by the commissioner.;
     On page seventy, section thirteen, lines fourteen and fifteen, by striking out the words "may not be subject to this section but are" and inserting in lieu thereof the words "is not subject to this section but is";
     On page one hundred nineteen, section twenty-six, line ten, after the word "policyholders" by changing the period to a colon and inserting the following proviso: Provided, That the aggregate investments of a health maintenance organization may not exceed the greater of thirty percent of its admitted assets or one hundred percent of its total capital and surplus.;
     On page one hundred forty-eight, section ten, line three, by striking out the words "Fifty percent" and inserting in lieu thereof the words "The first two million dollars";
     On pages two and three, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That §33-2-2 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §33-3-6 of said code be amended and reenacted; that §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of said code be amended and reenacted; that said code be amended by adding thereto seven new sections, designated §33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31 and §33-8-32; that §33-9-3 of said code be amended and reenacted; that §33-22-11 of said code be amended and reenacted; that §33-23-31 of said code be amended and reenacted; that §33-24-10 of said code be amended and reenacted; that §33-25A-4 of said code be amended and reenacted; that §33-25D-5 of said code be amended and reenacted; and that §33-27-2a of said code be amended and reenacted, all to read as follows: ;  
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 176--A Bill
to amend and reenact §33-2-2 of the code of West Virginia, 1931, as amended; to amend and reenact §33-3-6 of said code; to amend and reenact §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of said code; to amend said code by adding thereto seven new sections, designated §33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31 and §33-8-32; to amend and reenact §33-9-3 of said code; to amend and reenact §33-22-11 of said code; to amend and reenact §33-23-31 of said code; to amend and reenact §33-24-10 of said code; to amend and reenact §33-25A-4 of said code; to amend and reenact §33-25D-5 of said code; and to amend and reenact §33-27-2a of said code, all relating generally to insurance; increasing the salary of the insurance commissioner; modernizing investment standards and practices of insurance companies; and correcting references to amended sections of this chapter.
     On motion of Senator Minard, the following amendments to the House of Delegates amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
     On page two, by striking out all of section two in its entirety;
     On page two, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That §33-3-6 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of said code be amended and reenacted; that said code be amended by adding thereto seven new sections, designated §33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31 and §33-8-32; that §33-9-3 of said code be amended and reenacted; that §33-22-11 of said code be amended and reenacted; that §33-23-31 of said code be amended and reenacted; that §33-24-10 of said code be amended and reenacted; that §33-25A-4 of said code be amended and reenacted; that §33-25D-5 of said code be amended and reenacted; and that §33-27-2a of said code be amended and reenacted, all to read as follows:;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 176--A Bill to amend and reenact §33-3-6 of the code of West Virginia, 1931, as amended; to amend and reenact §33-8-1, §33-8-2, §33-8-3, §33-8-4, §33-8-5, §33-8-6, §33-8-7, §33-8-8, §33-8-9, §33-8-10, §33-8-11, §33-8-12, §33-8-13, §33-8-14, §33-8-15, §33-8-16, §33-8-17, §33-8-18, §33-8-19, §33-8-20, §33-8-21, §33-8-22, §33-8-23, §33-8-24 and §33-8-25 of said code; to amend said code by adding thereto seven new sections, designated §33-8-26, §33-8-27, §33-8-28, §33-8-29, §33-8-30, §33-8-31 and §33-8-32; to amend and reenact §33-9-3 of said code; to amend and reenact §33-22-11 of said code; to amend and reenact §33-23-31 of said code; to amend and reenact §33-24-10 of said code; to amend and reenact §33-25A-4 of said code; to amend and reenact §33-25D-5 of said code; and to amend and reenact §33- 27-2a of said code, all relating to investments and investment practices of insurance companies; and correcting references to amended sections of article eight, chapter thirty-three of said code.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Committee Substitute for Senate Bill No. 176, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 176) passed with its Senate amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect July 1, 2004, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 204, Relating to strategic research and development tax credit.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page six, section six, line eighty-seven, by striking out the word "is" and inserting in lieu thereof the word "if";
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 204--A Bill to amend and reenact §11-13R-6, §11-13R-11 and §11-13R-12 of the code of West Virginia, 1931, as amended, all relating to the strategic research and development tax credit; providing that the credit may be refundable for small qualified research and development companies; specifying limitations on credit; requiring certain reporting; and providing an effective date.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 204, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 204) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect July 1, 2004.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 204) takes effect July 1, 2004.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Senate Bill No. 230, Relating to definitions of casualty insurance and federal flood insurance; other provisions.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On
page seventeen, section fourteen, line ninety-nine, after the word "treasurer" by striking out the remainder of the bill and inserting in lieu thereof the words "is restricted to and shall distribute from the flood insurance tax fund for activities which promote and enhance floodplain management issues and for subgrants to local units of government and other eligible entities after full consideration of the recommendations of the office of emergency services.".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Senate Bill No. 230, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 230) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 271, Relating to racial profiling data collection.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
     

CHAPTER 17F. RACIAL PROFILING DATA COLLECTION ACT.

ARTICLE 1. RACIAL PROFILING DATA COLLECTION.
§17F-1-1. Definitions.
     The following words and phrases, when used in this chapter, shall, for the purposes of this chapter, have the meanings respectively ascribed to them in this article:
     (a) "Gross data" means aggregate data regarding the information obtained under section two of this article.
     (b) "Law-enforcement agency" means every state, county or municipal agency with officers who are authorized to direct or regulate traffic or to make arrests or issue citations or warnings for violations of traffic laws and ordinances.
     (c) "Minority group" means individuals of any ethnic descent, including, but not limited to, African-American, Hispanic, native American, middle eastern, Asian or Pacific islander.
§17F-1-2. Information obtained by law-enforcement officers during a traffic stop.

     Each time a law-enforcement officer stops a driver of a motor vehicle for a violation of any motor vehicle statute or ordinance, other than for a nonviolation stop, including, but not limited to, a checkpoint for driving under the influence, license, registration or seat belts, the officer shall obtain and prepare a brief report based on the officer's visual observation and perception of basic information about the nature, duration and outcome of the stop, including, but not limited to, information relating to the perceived racial characteristics of each operator stopped. The report is to be provided to the West Virginia law-enforcement agency which employs the law-enforcement officer: Provided, That the failure of the law-enforcement officer to obtain and report racial profiling data shall not affect the validity of the underlying traffic citation or warning.
     The information to be collected shall include:
     (a) The identifying characteristics of the operator stopped, including perceived race, ethnicity or national origin, gender and age;
     (b) The location and duration of the stop;
     (c) The traffic violation or violations alleged to have been committed that led to the stop;
     (d) Whether or not a warning or citation was issued as a result of the stop and, if so, the specific violation, if any, charged or warning given;
     (e) Whether a search was performed as a result of the stop;
     (f) If a search was performed, whether the person consented to the search, the probable cause or reasonable suspicion for the search, whether the person was searched, whether the person's property was searched and the duration of the search;
     (g) If a search was of a passenger in the motor vehicle, the perceived age, gender and race or minority group of the passenger;
     (h) Whether any contraband was discovered or seized in the course of the search and the type of any contraband discovered or seized;
     (i) Identify whether the search involved canine units or advanced technology; and
     (j) Any additional information which the law-enforcement agency considers appropriate.
§17F-1-3. Law-enforcement officer exemption from civil liability.
     Any law-enforcement officer who, in good faith, records traffic stop information under the requirements of section two of this article may not be held civilly liable for the act of inaccurately recording the information unless the officer's conduct was unconstitutional, unreasonable, intentional or reckless.
ARTICLE 2. ANALYSIS OF TRAFFIC STOPS STUDY AND ANNUAL REPORT BY DIRECTOR OF THE GOVERNOR'S COMMITTEE ON CRIME, DELINQUENCY AND CORRECTION.

§17F-2-1. Format of traffic stops data collection forms.
     
The division of motor vehicles shall provide a form as required by section three of this article, in both printed and electronic format, to be used by law-enforcement officers when making a traffic stop to record the information listed in section two, article one of this chapter.
§17F-2-2. Law-enforcement agency traffic stops data collection and submission.

     (a) Each law-enforcement agency shall report its data described in section two, article one of this chapter to the division of motor vehicles in a report format as prescribed by the division.
     (b) If a law-enforcement agency fails to comply with the provisions of this section, the division of motor vehicles shall notify the agency by certified mail of its failure to comply. If the agency continues to fail to comply, the governor may withhold state-controlled funds appropriated to the noncompliant law-enforcement agency until reports are made as required by this article.
§17F-2-3. Analysis of traffic stop statistics, annual report and legislative rules.

     (a) To facilitate the commencement of data collection on the first day of January, two thousand five, the director of the governor's committee on crime, delinquency and correction, in consultation with the division of motor vehicles, shall propose emergency and legislative rules in accordance with article three, chapter twenty-nine-a of this code. These rules shall include, but are not limited to:
     (1) The manner of reporting the information to the division of motor vehicles;
     (2) Promulgation of a form or forms for reporting purposes by various law-enforcement agencies;
     (3) A means of reporting the information required in section two, article one of this chapter on warning citations to the division of motor vehicles;
     (4) In consultation with the fraternal order of police, the sheriff's association, the deputy sheriff's association and representatives of law-enforcement agencies, a means of providing training to law-enforcement officers on completion and submission of the data on the proposed form;
     (5) A means of reporting back to individual law-enforcement agencies, from time to time, at the request of a law-enforcement agency on findings specific to that agency in an agreed-upon format to allow the agency to evaluate independently the data provided;
     (6) A limitation that the data is to be used solely for the purposes of this chapter;
     (7) Safeguards to protect the identity of individual law- enforcement officers collecting data required by section two, article one of this chapter when no citation or warning is issued;
     (8) Methodology for collection of gross data by law- enforcement agencies and the analysis of the data;
     (9) The number of motor vehicle stops and searches of motor vehicles occupied by members of a perceived minority group; the number of motor vehicle stops and searches of motor vehicles occupied by persons who are not members of a minority group; the population of minorities in the areas where the stops occurred; estimates of the number of all vehicles traveling on the public highways where the stops occurred; factors to be included in any evaluation that the data may indicate racial profiling, racial stereotyping or other race-based discrimination or selective enforcement; and other data deemed appropriate by the governor's committee on crime, delinquency and correction for the analysis of the protection of constitutional rights; and

     (10) Protocols for reporting collected data by the division of motor vehicles to the governor's committee on crime, delinquency and correction and the analysis thereof.
     (b) On or before the first day of February, two thousand six, and each year thereafter, the director of the governor's committee on crime, delinquency and correction shall publish a public report of the data collected and provide a copy thereof to all law- enforcement agencies subject to this chapter and provide a copy of the report and analysis of the data collected to the governor and to the joint committee on government and finance.
     (c) The provisions of sections two and three, article one of this chapter and section two of this article shall become effective after the thirty-first day of December, two thousand four.
     (d) The provisions of this chapter shall be of no force or effect after the thirty-first day of December, two thousand seven.;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 271--A Bill to
amend the code of West Virginia, 1931, as amended, by adding thereto a new chapter, designated §17F-1-1, §17F-1-2, §17F-1-3, §17F-2-1, §17F-2-2 and §17F-2-3, all relating to racial profiling data collection; defining terms; requiring all state law-enforcement officers to collect certain data during traffic stops; requiring the division of motor vehicles to develop forms and compile the data collected; establishing penalties for agencies which fail to comply; providing limited civil liability protection for officers collecting data; providing form content; providing consultation with law-enforcement organizations relating to developing forms; requiring director of the governor's committee on crime, delinquency and correction to conduct analysis and distribute data; requiring promulgation of emergency and legislative rules; providing effective date for requiring collection of data; providing for annual report to the Legislature; and expiring data- collection requirements.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 271, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 271) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 320, Relating to division of motor vehicles application for certificate of title; exempting modular homes.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §11-5-12 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §17A-3-4 of said code be amended and reenacted; and that said code be amended by adding thereto a new section, designated §17A-3-12b, all to read as follows:
CHAPTER 11. TAXATION.

ARTICLE 5. ASSESSMENT OF PERSONAL PROPERTY.
§11-5-12. Mobile homes situate upon property owned by a person other than owner of mobile home.

     Mobile homes situate upon property owned by a person other than the owner of the mobile home shall be classified as personal property whether or not said mobile home is permanently affixed to the real estate and unless subject to assessment as Class II property under section eleven of this article or section two, article four of this chapter shall be assessed as Class III or Class IV personal property, as may be appropriate in the circumstances.
_____A mobile home permanently attached to the real estate of the owner may not be classified as personal property if the owner has filed a cancelled certificate of title with the clerk of the county commission and has recorded it in the same manner as deeds are recorded and indexed.
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION,

CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS.

ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF CERTIFICATES OF TITLE.

§17A-3-4. Application for certificate of title; tax for privilege of certification of title; exceptions; fee on payments for leased vehicles; penalty for false swearing.

     (a) Certificates of registration of any vehicle or registration plates for the vehicle, whether original issues or duplicates, may not be issued or furnished by the division of motor vehicles or any other officer or agent charged with the duty, unless the applicant therefor already has received, or at the same time makes application for and is granted, an official certificate of title of the vehicle in either an electronic or paper format. The application shall be upon a blank form to be furnished by the division of motor vehicles and shall contain a full description of the vehicle, which description shall contain a manufacturer's serial or identification number or other number as determined by the commissioner and any distinguishing marks, together with a statement of the applicant's title and of any liens or encumbrances upon the vehicle, the names and addresses of the holders of the liens and any other information as the division of motor vehicles may require. The application shall be signed and sworn to by the applicant. A duly certified copy of the division's electronic record of a certificate of title shall be is admissible in any civil, criminal or administrative proceeding in this state as evidence of ownership.
     (b) A tax is imposed upon the privilege of effecting the certification of title of each vehicle in the amount equal to five percent of the value of the motor vehicle at the time of the certification, to be assessed as follows:
     (1) If the vehicle is new, the actual purchase price or consideration to the purchaser of the vehicle is the value of the vehicle. If the vehicle is a used or secondhand vehicle, the present market value at time of transfer or purchase is the value of the vehicle for the purposes of this section: Provided, That so much of the purchase price or consideration as is represented by the exchange of other vehicles on which the tax imposed by this section has been paid by the purchaser shall be deducted from the total actual price or consideration paid for the vehicle, whether the vehicle be new or secondhand. If the vehicle is acquired through gift or by any manner whatsoever, unless specifically exempted in this section, the present market value of the vehicle at the time of the gift or transfer is the value of the vehicle for the purposes of this section.
     (2) No certificate of title for any vehicle may be issued to any applicant unless the applicant has paid to the division of motor vehicles the tax imposed by this section which is five percent of the true and actual value of the vehicle whether the vehicle is acquired through purchase, by gift or by any other manner whatsoever, except gifts between husband and wife or between parents and children: Provided, That the husband or wife, or the parents or children, previously have paid the tax on the vehicles transferred to the state of West Virginia.
     (3) The division of motor vehicles may issue a certificate of registration and title to an applicant if the applicant provides sufficient proof to the division of motor vehicles that the applicant has paid the taxes and fees required by this section to a motor vehicle dealership that has gone out of business or has filed bankruptcy proceedings in the United States bankruptcy court and the taxes and fees so required to be paid by the applicant have not been sent to the division by the motor vehicle dealership or have been impounded due to the bankruptcy proceedings: Provided, That the applicant makes an affidavit of the same and assigns all rights to claims for money the applicant may have against the motor vehicle dealership to the division of motor vehicles.
     (4) The division of motor vehicles shall issue a certificate of registration and title to an applicant without payment of the tax imposed by this section if the applicant is a corporation, partnership or limited liability company transferring the vehicle to another corporation, partnership or limited liability company when the entities involved in the transfer are members of the same controlled group and the transferring entity has previously paid the tax on the vehicle transferred. For the purposes of this section, control means ownership, directly or indirectly, of stock or equity interests possessing fifty percent or more of the total combined voting power of all classes of the stock of a corporation or equity interests of a partnership or limited liability company entitled to vote or ownership, directly or indirectly, of stock or equity interests possessing fifty percent or more of the value of the corporation, partnership or limited liability company.
     (5) The tax imposed by this section does not apply to vehicles to be registered as Class H vehicles or Class M vehicles, as defined in section one, article ten of this chapter, which are used or to be used in interstate commerce. Nor does the tax imposed by this section apply to the titling of Class B vehicles registered at a gross weight of fifty-five thousand pounds or more or to the titling of Class C semitrailers, full trailers, pole trailers and converter gear: Provided, That if an owner of a vehicle has previously titled the vehicle at a declared gross weight of fifty-five thousand pounds or more and the title was issued without the payment of the tax imposed by this section, then before the owner may obtain registration for the vehicle at a gross weight less than fifty-five thousand pounds, the owner shall surrender to the commissioner the exempted registration, the exempted certificate of title and pay the tax imposed by this section based upon the current market value of the vehicle: Provided, however, That notwithstanding the provisions of section nine, article fifteen, chapter eleven of this code, the exemption from tax under this section for Class B vehicles in excess of fifty-five thousand pounds and Class C semitrailers, full trailers, pole trailers and converter gear does not subject the sale or purchase of the vehicles to the consumers sales tax.
     (6) The tax imposed by this section does not apply to titling of vehicles leased by residents of West Virginia. A tax is imposed upon the monthly payments for the lease of any motor vehicle leased by a resident of West Virginia, which tax is equal to five percent of the amount of the monthly payment, applied to each payment, and continuing for the entire term of the initial lease period. The tax shall be remitted to the division of motor vehicles on a monthly basis by the lessor of the vehicle.
     (7) The tax imposed by this section does not apply to titling of vehicles by a registered dealer of this state for resale only, nor does the tax imposed by this section apply to titling of vehicles by this state or any political subdivision thereof, or by any volunteer fire department or duly chartered rescue or ambulance squad organized and incorporated under the laws of the state of West Virginia as a nonprofit corporation for protection of life or property. The total amount of revenue collected by reason of this tax shall be paid into the state road fund and expended by the commissioner of highways for matching federal funds allocated for West Virginia. In addition to the tax, there is a charge of five dollars for each original certificate of title or duplicate certificate of title so issued: Provided, That this state or any political subdivision of this state, or any volunteer fire department or duly chartered rescue squad is exempt from payment of the charge.
     (8) The certificate is good for the life of the vehicle, so long as the vehicle is owned or held by the original holder of the certificate, and need not be renewed annually, or any other time, except as provided in this section.
     (9) If, by will or direct inheritance, a person becomes the owner of a motor vehicle and the tax imposed by this section previously has been paid to the division of motor vehicles on that vehicle, he or she is not required to pay the tax.
     (10) A person who has paid the tax imposed by this section is not required to pay the tax a second time for the same motor vehicle, but is required to pay a charge of five dollars for the certificate of retitle of that motor vehicle, except that the tax shall be paid by the person when the title to the vehicle has been transferred either in this or another state from the person to another person and transferred back to the person.
     (11) The tax imposed by this section does not apply to any passenger vehicle offered for rent in the normal course of business by a daily passenger rental car business as licensed under the provisions of article six-d of this chapter. For purposes of this section, a daily passenger car means a Class A motor vehicle having a gross weight of eight thousand pounds or less and is registered in this state or any other state. In lieu of the tax imposed by this section, there is hereby imposed a tax of not less than one dollar nor more than one dollar and fifty cents for each day or part of the rental period. The commissioner shall propose an emergency rule in accordance with the provisions of article three, chapter twenty-nine-a of this code to establish this tax.
     (12) The tax imposed by this article does not apply to the titling of any vehicle purchased by a senior citizen service organization which is exempt from the payment of income taxes under the United States Internal Revenue Service Code, Title 26 U. S. C. §501(c)(3) and which is recognized to be a bonafide senior citizen service organization by the senior services bureau existing under the provisions of article five, chapter sixteen of this code.
     (c) Notwithstanding any provisions of this code to the contrary, the owners of trailers, semitrailers, recreational vehicles and other vehicles not subject to the certificate of title tax prior to the enactment of this chapter are subject to the privilege tax imposed by this section: Provided, That the certification of title of any recreational vehicle owned by the applicant on the thirtieth day of June, one thousand nine hundred eighty-nine, is not subject to the tax imposed by this section: Provided, however, That mobile homes, manufactured homes, modular homes and similar nonmotive propelled vehicles, except recreational vehicles and house trailers, susceptible of being moved upon the highways but primarily designed for habitation and occupancy, rather than for transporting persons or property, or any vehicle operated on a nonprofit basis and used exclusively for the transportation of mentally retarded or physically handicapped children when the application for certificate of registration for the vehicle is accompanied by an affidavit stating that the vehicle will be operated on a nonprofit basis and used exclusively for the transportation of mentally retarded and physically handicapped children, are not subject to the tax imposed by this section, but are taxable under the provisions of articles fifteen and fifteen-a, chapter eleven of this code.
     (d) Any person making any affidavit required under any provision of this section who knowingly swears falsely, or any person who counsels, advises, aids or abets another in the commission of false swearing, or any person, while acting as an agent of the division of motor vehicles, issues a vehicle registration without first collecting the fees and taxes or fails to perform any other duty required by this chapter to be performed before a vehicle registration is issued is, on the first offense, guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars or be confined in the county or regional jail for a period not to exceed six months or, in the discretion of the court, both fined and confined. For a second or any subsequent conviction within five years, that person is guilty of a felony and, upon conviction thereof, shall be fined not more than five thousand dollars or be imprisoned in a state correctional facility for not less than one year nor more than five years or, in the discretion of the court, both fined and imprisoned.
     (e) Notwithstanding any other provisions of this section, any person in the military stationed outside West Virginia, or his or her dependents who possess a motor vehicle with valid registration, are exempt from the provisions of this article for a period of nine months from the date the person returns to this state or the date his or her dependent returns to this state, whichever is later.
     (f) No person may transfer, purchase or sell a factory-built home without a certificate of title issued by the commissioner in accordance with the provisions of this article:
     (1) Any person who fails to provide a certificate of title upon the transfer, purchase or sale of a factory-built home is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined not less than one hundred dollars nor more than one thousand dollars, or be confined in the county or regional jail for not more than one year or, both fined and confined. For each subsequent offense, the fine may be increased to not more than two thousand dollars, with confinement in the county or regional jail not more than one year or, both fined and confined.
     (2) Failure of the seller to transfer a certificate of title upon sale or transfer of the factory-built home gives rise to a cause of action, upon prosecution thereof, and allows for the recovery of damages, costs and reasonable attorney fees.
     (3) This subsection does not apply to a mobile or manufactured home for which a certificate of title has been cancelled pursuant to section twelve-b of this article.
     (g) Notwithstanding any other provision to the contrary, whenever reference is made to the application for or issuance of any title or the recordation or release of any lien, it shall be understood to include includes the application, transmission, recordation, transfer of ownership and storage of information in an electronic format.
     (h) Notwithstanding any other provision contained in this section, nothing herein shall be considered to include modular homes as defined in subsection (i), section two, article fifteen, chapter thirty-seven of this code and built to the state building code as established by legislative rules promulgated by the state fire commission pursuant to section five-b, article three, chapter twenty-nine of this code.
§17A-3-12b. Cancelled certificates of title for certain mobile and manufactured homes.

     The commissioner may cancel a certificate of title for a mobile or manufactured home affixed to the real property of the owner of the mobile or manufactured home. The person requesting the cancellation shall submit to the commissioner an application for cancellation together with the certificate of title. The application shall be on a form prescribed by the commissioner. The commissioner shall return one copy of the cancellation certificate to the owner and shall send a copy of the cancellation certificate to the clerk of the county commission to be recorded and indexed in the deed book with the owners name being indexed in the grantor index. The commissioner shall charge a fee of ten dollars per certificate of title cancelled. Upon recordation in the county clerk?s office the mobile or manufactured home shall be treated for all purposes as an appurtenance to the real estate to which it is affixed and be transferred only as real estate and the ownership interest in the mobile or manufactured home, together with all liens and encumbrances on the home, shall be transferred to and shall encumber the real property to which the mobile or manufactured home has become affixed.;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 320--A Bill to amend and reenact §11-5-12 of the code of West Virginia, 1931, as amended; to amend and reenact §17A-3-4 of said code; and to amend said code by adding thereto a new section, designated §17A-3-12b, all relating to certificates of title; permitting the filing of cancelled certificates of title in the office of the clerk of the county commission; exempting mobile and manufactured homes from the prohibition against the transfer, purchase or sale of a mobile or manufactured home when a certificate of title has been cancelled; exempting modular homes from the need for certificates of title; and cancellation of certificates of title for mobile and manufactured homes permanently attached to real estate.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 320, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 320) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 327, Authorizing department of administration to promulgate legislative rules.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page three, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §64-1-1 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that article 2, chapter 64 of said code be amended and reenacted, all to read as follows:
ARTICLE 1. GENERAL LEGISLATIVE AUTHORIZATION.
§64-1-1. Legislative authorization.

     Under the provisions of article three, chapter twenty-nine-a of the code of West Virginia, the Legislature expressly authorizes the promulgation of the rules described in articles two through eleven, inclusive, of this chapter, subject only to the limitations set forth with respect to each such rule in the section or sections of this chapter authorizing its promulgation. Legislative rules promulgated pursuant to the provisions of this article and articles two through eleven, inclusive, of this chapter in effect at the effective date of this section shall continue in full force and effect until reauthorized in this chapter by legislative enactment or until amended by emergency rule pursuant to the provisions of article three, chapter twenty-nine-a of this code.
ARTICLE 2. AUTHORIZATION FOR DEPARTMENT OF ADMINISTRATION TO PROMULGATE LEGISLATIVE RULES.

§64-2-1. Department of administration.
     (a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section forty-two, article three, chapter five-a of this code, modified by the department of administration to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of January, two thousand four, relating to the department of administration (leasing space on behalf of state spending units, 148 CSR 2), is authorized with the following amendments:
     On page one, subdivision 1.1, on the ninth line, by striking out the words "those spending units who are exempt or who have independent leasing authority." and inserting in lieu thereof the words "the division of highways, the higher education policy commission, the lottery commission, or a spending unit of the state with independent leasing authority pursuant to the code of West Virginia. This exemption does not apply to the office space of spending units of the executive branch.";
     On page one, subsection 2.1, by designating the first paragraph as subdivision 2.1.a and by designating the second paragraph as subdivision 2.1.b;
     On page one, subsection 2.2, line three, after the words "describing the space" by striking out the remainder of the subsection and by inserting in lieu thereof the words "and a letter justifying the agency's need for leasing the new space.";
     On page two, subdivision 4.2.b, line three, after the word "considered", by inserting the words "by the leasing officer";
     On page two, subdivision 4.2.c, line two, by inserting the words "Class II";
     On page two, section four, following subsection 4.3, by inserting the following and renumbering the remaining subsections:
     "4.4. Notification.
     The Leasing Office shall provide written notification of its site selection recommendation to the spending unit within thirty (30) days of the evaluation of the spending unit's request for space which includes the review of bids, evaluation of bids by the Leasing Office and any negotiations conducted by the Leasing Office pursuant to Subsection 4.3 of this rule prior to final location selection.";
     On page two, section four, subsection 4.4, by striking out the second paragraph;
     On page two, subsection 4.5, after the period, by inserting the words "The leasing office shall provide written notification to the spending unit regarding the agency's authorization to occupy the space within thirty (30) days of an evaluation period.";
     On page three, section six, subsection 6.3, line 1, following the word "Administration" by inserting "or the Director of the Purchasing Division of the Department of Administration";
     On page three, section six, subsection 6.3, line seven, following the word "Administration" by inserting "or the Director of the Purchasing Division";
     On page three, section six, subsection 6.3, line nine, following the word "Secretary" and the comma, by inserting the words "the Director";
     On page three, section six, subsection 6.3, line 14, following the word "Secretary", by inserting the words "or Director";
     On page three, section six, subsection 6.4, line two, following the word "Administration" by inserting "or the Director of the Purchasing Division";
     On page four, section seven, subsection 7.1, line seven, following the word "Administration" by inserting "or the Director of the Purchasing Division";
     On page four, section ten, subsection 10.1, line five, following the word "Administration" by inserting "or the Director of the Purchasing Division";

     On page four, subsection 11.1, line two, after the words "other emergency situation", by inserting the words "as determined by the Secretary,";
     On page four, subsection 11.1, line three, after the period, by inserting the words "In the event of a natural disaster or emergency situation, the Secretary of Administration shall continue to have the authority to select and to acquire by contract or lease, in the name of the State, all grounds, buildings, office space or other space for and on behalf of any spending unit.";
     On page four, subsection 11.2, by striking out the entire subsection and by renumbering the subsequent subsections;
     On page four, subsection 11.3, line one, by striking out the words "At no time does the" and inserting in lieu thereof the word "The", and after the words "spending unit", by inserting the words "does not";
     On page four, subsection 11.4, line one, by striking out the words "To the degree" and by inserting in lieu thereof the word "When";
     On page four, subsection 11.4, line three, after the word "unit", by striking out the words "shall get" and by inserting in lieu thereof the words "will obtain";
     On page five, subsection 11.5, line one, by striking out the words "To the degree" and by inserting in lieu thereof the word "When";
     And,
     On page five, subsection 11.5, line two, after the words "will put a", by inserting the words "Class II".

     (b) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five, article four, chapter five-a of this code, modified by the department of administration to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of January, two thousand four, relating to the department of administration (parking, 148 CSR 6), is authorized with the following amendment:
     On page two, subsection 5, on the eleventh line, by adding after "2007." the following sentence: "The maximum fee that can be charged thereafter for parking is twenty dollars ($20.00) per month. "
§64-2-2. Consolidated public retirement board.
     (a) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the authority of section one, article ten-d, chapter five of this code, modified by the consolidated public retirement board to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirtieth day of October, two thousand three, relating to the consolidated public retirement board (general provisions, 162 CSR 1), is authorized.
     (b) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the authority of section one, article ten-d, chapter five of this code, modified by the consolidated public retirement board to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirtieth day of October, two thousand three, relating to the consolidated public retirement board (benefit determination and appeal, 162 CSR 2), is authorized.
     (c) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the authority of section one, article ten-d, chapter five of this code, modified by the consolidated public retirement board to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirtieth day of October, two thousand three, relating to the consolidated public retirement board (teachers defined benefit plan, 162 CSR 4), is authorized.
     (d) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the authority of section one, article ten-d, chapter five of this code, modified by the consolidated public retirement board to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirtieth day of October, two thousand three, relating to the consolidated public retirement board (West Virginia state police disability determination and appeal process, 162 CSR 9), is authorized.

§64-2-3. Board of risk and insurance management.
     (a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section one, article twelve, chapter twenty-nine of this code, modified by the board of risk and insurance management to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-third day of January, two thousand four, relating to the board of risk and insurance management (public entities insurance program, 115 CSR 2), is authorized.
     (b) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section fourteen, article twelve, chapter twenty-nine of this code, modified by the board of risk and insurance management to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty- third day of January, two thousand four, relating to the board of risk and insurance management (terms and conditions pertaining to members of self insurance pools who wish to participate in state insurance programs, 115 CSR 7), is not authorized.;
     And,
     On pages one through three, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 327--A Bill to amend and reenact §64-1-1 of the code of West Virginia, 1931, as amended; and to amend and reenact article 2, chapter 64 of said code, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule- making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee and as amended by the Legislature;
disapproving certain legislative rules; authorizing the department of administration to promulgate a legislative rule relating to leasing space on behalf of state spending units ; authorizing the department of administration to promulgate a legislative rule relating to parking ; authorizing the consolidated public retirement board to promulgate a legislative rule relating to general provisions ; authorizing the consolidated public retirement board to promulgate a legislative rule relating to benefit determination and appeal ; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the teachers defined benefit plan ; authorizing the consolidated public retirement board to promulgate a legislative rule relating to the West Virginia state police disability determination and appeal process ; authorizing the board of risk and insurance management to promulgate a legislative rule relating to the public entities insurance program; and disapproving the board of risk and insurance management legislative rule relating to the terms and conditions pertaining to members of self-insurance pools who wish to participate in state insurance programs.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 327, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 327) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 327) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 350, Authorizing bureau of commerce to promulgate legislative rules.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE      LEGISLATIVE RULES.
§64-10-1. Economic development authority.
     (a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section three, article two, chapter five-e of this code, modified by the economic development authority to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-second day of December, two thousand three, relating to the economic development authority (general administration of the West Virginia venture capital act, 117 CSR 3), is authorized with the following amendments:
     On page one, subsection 1.5, after the words "Series 3," by striking out the remainder of the sentence and inserting in lieu thereof the words "§117-3-1, et seq.";
     On page two, section two, subsection 2.10, line 3, by striking out the word "Subdivision" and inserting the word "Subsection";
     On page four, section four, subdivision 4.2.a, line 3, following the word "with" by striking out the word "Subdivision" and inserting the word "Subsection";

     On page six, subdivision 5.2.c.9., line one, by striking out the words "A signed commitment" and inserting in lieu thereof the words "An irrevocable letter of credit";
     On page six, paragraph 5.2.c.9, line three, after the words "certified check for", by striking out the word "the" and inserting in lieu thereof the word "any", and, after the word "call", by striking out the comma and the words "if required by the Authority";
     On page six, subdivision 5.2.c.9, line three, following the words "by the authority" inserting a colon and the words "Provided, That the economic development authority may authorize a reduction in the amount of the irrevocable letter of credit to correspond to a payment made towards the proposed investment;" ;
     On page twelve, subdivision 7.4.1, line six, after the words "applicable where", by striking out the remainder of the subdivision and inserting in lieu thereof the words "the Fund Manager's economic relationship is solely the result of the fact that the Fund Manager has made a previous investment in the West Virginia Business pursuant to the Act or this Rule.";
     On page twelve, subdivision 7.4.2, line seven, after the words "applicable where", by striking out the remainder of the subdivision and inserting in lieu thereof the words "the investor's economic relationship is solely the result of the fact that the Fund Manager has made a previous investment in the West Virginia Business pursuant to the Act or this Rule.";
     And,
     On page sixteen, section ten, subsection 10.10, line 1, following the words "described in" by striking out the words "Section 10" and inserting "this section".
     (b) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five, article one, chapter five-e of this code, modified by the economic development authority to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-second day of December, two thousand three, relating to the economic development authority (economic development and technology advancement centers, 117 CSR 4), is authorized with the following amendments:
     On page five, section four, subdivision 4.1.2, line 1, following the word "Per" by striking out the word "Investor" and inserting the word "Center";
     On page five, section four, subdivision 4.1.2, line 1, following the word "single" by striking out the words "Investor in a Center" and inserting the word "Center";
     On page five, section four, subsection 4.3, line 7, following the word "subdivision" by striking out "6.4.f" and inserting "4.4.f";
     And,
     On page nine, section six, subsection 6.8, following the words "described in" by striking out the word "Sections" and inserting the word "Subsections".
§64-10-2. Infrastructure and jobs development council.
     
The legislative rule filed in the state register on the twenty-third day of June, two thousand three, authorized under the authority of section four, article fifteen-a, chapter thirty-one of this code, modified by the infrastructure and jobs development council to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourteenth day of August, two thousand three, relating to the infrastructure and jobs development council (infrastructure and jobs development council, 167 CSR 1), is authorized with the following amendments:
     On page nine, section five, subdivision 5.13.6, line 9, following the citation "WVC 22C-2-1, et seq." by inserting words "and WVC 16-13C-1, et seq.";
     On page nine, section five, subdivision 5.13.6, line 11, following the word "State" by striking out the words "as delineated";
     And,
     On page nine, section five, subdivision 5.13.6, line 13, following the word "Code" by striking out the word "in".
§64-10-3. Division of labor.
     The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five-c, article five, chapter twenty-one of this code, modified by the division of labor to meet the objections of the legislative rule-making review committee and refiled in the state register on the fifth day of December, two thousand three, relating to the division of labor (psychophysiological detection of deception examinations, limitations of use, requirements, licenses and penalties, 42 CSR 6), is authorized with the following amendments:
     On page one, subsection 1.1, line one, after the words "W. Va. Code", by striking out the words "§21-5-5(c)" and inserting in lieu thereof the words "§21-5-5c";
     On page one, subsection 1.1, line three, after the words "W. Va. Code", by striking out the words "§21-5-5(a)-(d)" and inserting in lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
     On page one, subsection 2.4, line three, after the words "W. Va. Code", by striking out the words "§21-5-5c(c)" and inserting in lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
     On page two, subsection 3.1, line two, after the words "issue a license", by striking out the word "to";
     On page two, subsection 3.1, line five, after the words "W. Va. Code", by striking out the words "§21-5-5a, b, c, and d" and inserting in lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
     On page two, subsection 3.3, line one, after the words "Subsection 3.2", by inserting the words "of this section";
     On page three, subdivision 3.10(b), line one, after the words "in the violation of.", by striking out the words "this article" and inserting in lieu thereof the words "W. Va. Code §§21-5-5a, - 5b, -5c, and -5d";
     On page three, subdivision 3.10(c), line one, after the words "The licensee", by striking out the word "is" and inserting in lieu thereof the words "has been";
     On page three, subdivision 3.10(d), line one, after the words "The licensee", by striking out the word "makes" and inserting in lieu thereof the words "has been", and after the words "false promises", by striking out the word "cause" and inserting in lieu thereof the words "has caused";
     On page four, subdivision 3.10(f), line one, after the words "The licensee", by striking out the word "allows" and inserting in lieu thereof the words "has allowed";
     On page four, subdivision 3.10(g), line one, after the words "The licensee", by striking out the word "fails" and inserting in lieu thereof the words "has failed";
     On page four, subdivision 4.2, line one, after the words "The intern", by striking out the words "shall have" and inserting in lieu thereof the word "has";
     On page four, subparagraph 4.2.1.b.(1), line one, after the words "W. Va. Code", by striking out the words "§21-5-5a, b, c, and d" and inserting in lieu thereof the words "§§21-5-5a, -5b, -5c, and -5d";
     On page six, paragraph 4.2.3.A, line three, after the word "but", by striking out the word "compliance" and inserting in lieu thereof the words "must comply" and, after the words "with all other", by striking out the rest of the paragraph and inserting in lieu thereof the words "requirements of this subsection";
     On page six, subsection 5.1, line one, after the words "issue a license", by inserting the words "without examination" and, after the words "applicant who is", by striking out the words "an examiner" and inserting in lieu thereof the word "a";
     On page six, subsection 5.1, line two, after the word "licensed", by inserting the word "examiner";
     On page six, subsection 5.1, line three, by striking out the words "without examination";
     On page seven, section six, line two, by striking out the words "this article, it is the policy of the Commissioner that" and inserting in lieu thereof the words "W. Va. Code §§21-5-5a, -5b, - 5c, and -5d,";
     On page eight, subdivision 8.1.(b), line three, after the words "unfit for the", by striking out the word "an";
     And,
     On page nine, subdivision 8.2.(c), line two, after the words "record of the", by striking out the term "PDD" and inserting in lieu thereof the words "psychophysiological detection of deception".
§64-10-4. Manufactured housing construction and safety standards board.

     
The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section four, article nine, chapter twenty-one of this code, modified by the manufactured housing construction and safety standards board to meet the objections of the legislative rule- making review committee and refiled in the state register on the fifth day of December, two thousand three, relating to the manufactured housing construction and safety standards board (West Virginia manufactured housing construction and safety standards board, 42 CSR 19), is not authorized.
§64-10-5. Office of miners' health, safety and training.
     The legislative rule filed in the state register on the eighth day of November, two thousand two, authorized under the authority of section six, article one, chapter twenty-two-a of this code, modified by the office of miners' health, safety and training to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourteenth day of April, two thousand three, relating to the office of miners' health, safety and training (reporting requirements for independent contractors, 56 CSR 10), is authorized.
§64-10-6. Division of natural resources.
     (a) The legislative rule filed in the state register on the eleventh day of September, two thousand three, authorized under the authority of section seven, article one, chapter twenty of this code, modified by the division of natural resources to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-sixth day of January, two thousand four, relating to the division of natural resources (public land corporation rule controlling the sale, lease, exchange or transfer of land and minerals, 58 CSR 2), is authorized.
     (b) The legislative rule filed in the state register on the second day of July, two thousand three, authorized under the authority of section seven, article one, chapter twenty of this code, modified by the division of natural resources to meet the objections of the legislative rule-making review committee and refiled in the state register on the fifteenth day of September, two thousand three, relating to the division of natural resources (revocation of hunting and fishing licenses, 58 CSR 23), is authorized
with the following amendment:
     On page one, subsection 2.4, on the first line, by striking out the words "Class A-1-L" and inserting in lieu thereof the words "Lifetime Class A-1".
     (c) The legislative rule filed in the state register on the tenth day of July, two thousand three, authorized under the authority of section twenty-two, article seven, chapter twenty of this code, relating to the division of natural resources (special motorboating regulations, 58 CSR 27), is authorized.
     (d) The legislative rule filed in the state register on the fourteenth day of July, two thousand three, authorized under the authority of section seventeen, article one, chapter twenty of this code, relating to the division of natural resources (special fishing, 58 CSR 61), is authorized with the following amendment:
     On page one, section three, by striking out all of subsection 3.1
and renumbering the remaining subsections.;
     And,
     On pages one through three, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 350--A Bill to amend and reenact article 10, chapter 64 of the code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule- making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee and as amended by the Legislature; disapproving certain legislative rules; authorizing the economic development authority to promulgate a legislative rule relating to the general administration of the West Virginia venture capital act; authorizing the economic development authority to promulgate a legislative rule relating to economic development and technology advancement centers; authorizing the infrastructure and jobs development council to promulgate a legislative rule relating to council; authorizing the division of labor to promulgate a legislative rule relating to psychophysiological detection of deception examinations; disapproving the manufactured housing construction and safety standards board to promulgate a legislative rule relating to the board; authorizing the office of miners' health, safety and training to promulgate a legislative rule relating to reporting requirements for independent contractors; authorizing the division of natural resources to promulgate a legislative rule relating to public land corporation rule controlling sale, lease, exchange or transfer of land and minerals; authorizing the division of natural resources to promulgate a legislative rule relating to revocation of hunting and fishing licenses; authorizing the division of natural resources to promulgate a legislative rule relating to special motorboating regulations; and authorizing the division of natural resources to promulgate a legislative rule relating to special fishing.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 350, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 350) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 350) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 399, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page four, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO PROMULGATE LEGISLATIVE RULES.

§64-9-1. Board of accountancy.
     The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five, article nine, chapter thirty of this code, modified by the board of accountancy to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-sixth day of January, two thousand four, relating to the board of accountancy (board rules and rules of professional conduct, 1 CSR 1), is authorized.
§64-9-2. Commissioner of agriculture.
     (a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section ten, article eleven-b, chapter nineteen of this code, modified by the commissioner of agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fourth day of November, two thousand three, relating to the commissioner of agriculture (frozen desserts and imitation frozen desserts, 61 CSR 4B), is authorized with the following amendment:
     On page one, section 2.1.f, after the words "Pasteurized Milk", by deleting the term "Ordiance", and by inserting in lieu thereof the word "Ordinance".
     (b) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section ten, article eleven-a, chapter nineteen of this code, modified by the commissioner of agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fourth day of November, two thousand three, relating to the commissioner of agriculture (dairy products and imitation dairy products, 61 CSR 4C), is authorized.
     (c) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section six, article sixteen, chapter nineteen of this code, modified by the commissioner of agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fourth day of November, two thousand three, relating to the commissioner of agriculture (West Virginia seed law, 61 CSR 9), is authorized.
§64-9-3. Board of architects.
     The legislative rule filed in the state register on the third day of October, two thousand two, authorized under the authority of section one, article twelve, chapter thirty of this code, modified by the board of architects to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-second day of April, two thousand three, relating to the board of architects (registration of architects, 2 CSR 1), is authorized.
§64-9-4. Auditor's office.
     (a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section ten-c, article three, chapter twelve of this code, modified by the auditor's office to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighteenth day of December, two thousand three, relating to the auditor's office (transaction fee and rate structure, 155 CSR 4), is authorized.
     (b) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section ten-a, article three, chapter twelve of this code, modified by the auditor's office to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourth day of November, two thousand three, relating to the auditor's office (state purchasing card program, 155 CSR 7), is authorized
with the following amendments:
     On page two, section two, subdivision 2.17.e, line one, following the words "Higher Education," by inserting the words "not to exceed $5,000 for any purchase";
     On page two, section two, subdivision 2.17.f, line two, following the words "Higher Education," by striking out the word "which" and inserting in lieu thereof the words "not to exceed $5,000 for any purchase unless approved by the Purchasing Division. 'Routine, regularly scheduled payments of Higher Education'";
     On page two, section two, subdivision 2.18.c, line three, following the words "Chapter 15", by striking out the words "and WV Code 18B-5-9";
     On page two, section two, subdivision 2.18.c, line five, following the words "with the card," and the semicolon, by inserting the words "and as provided in WV Code 18B-5-9, the transaction limit for Higher Education is the credit limit associated with the card, not to exceed $5,000 for any purchase", followed by a semicolon;
     On page two, section two, subdivision 2.18.e, line four, following the words "with the card," by striking out the period and inserting the words "except as provided in subdivision 2.17.f.";
     And,
     On page three, section three, subsection 3.3, line one, following the words "an emergency", by striking out the word "effecting" and inserting in lieu thereof the word "affecting".
§64-9-5. Board of examiners in counseling.
     The legislative rule filed in the state register on the fourth day of December, two thousand two, authorized under the authority of section five, article thirty-one, chapter thirty of this code, modified by the board of examiners in counseling to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-first day of April, two thousand three, relating to the board of examiners in counseling (fees, 27 CSR 2), is authorized.
§64-9-6. Board of registration for professional engineers.
     The legislative rule filed in the state register on the thirtieth day of July, two thousand three, authorized under the authority of section nine, article thirteen, chapter thirty of this code, modified by the board of registration for professional engineers to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourteenth day of January, two thousand four, relating to the board of registration for professional engineers (rule governing the West Virginia board of registration for professional engineers, 7 CSR 1), is authorized
with the following amendments:
     On page three, subsection 3.3, subdivision h, by striking out said subdivision h in its entirety;
     And,
     On page twenty-one, subsection 14.4, by striking out said subsection 14.4 in its entirety and inserting in lieu thereof the words:
     The Board may assess administrative costs incurred in the performance of its enforcement or investigatory activities against any person or entity who violates the provisions referenced in subsection 14.1 of this rule, which shall be paid to the West Virginia State Board of Registration for Professional Engineers by check or money order within a period of thirty (30) days from the date of the final order entered by the Board.

§64-9-7. Board of examiners of land surveyors.
     (a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section four, article thirteen-a, chapter thirty of this code, relating to the board of examiners of land surveyors (minimum standards for practice of land surveying in West Virginia, 23 CSR 1), is authorized with the following amendments:
     On page three, subsection 5.1, line eight, after the words "annual renewal fee" by striking out the comma and the words "determined by the board, not to exceed one hundred dollars ($100.00)" and by inserting in lieu thereof the words "of forty dollars ($40.00)";
     On page three, subsection 5.1, line nine, after the words "the fee shall increase", by striking out the words "an amount determined by the Board, not to exceed twenty percent (20%) of the annual renewal fee" and inserting in lieu thereof the words "one dollar ($1.00)";
     And,
     On page four, subsection 5.1, line one, after the words "payment of a fee", by striking out the words "determined by the Board, not to exceed fifty dollars ($50.00)" and by inserting in lieu thereof the words "of ten dollars ($10.00)".
     (b) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section four, article thirteen-a, chapter thirty of this code, relating to the board of examiners of land surveyors (mandatory continuing education for land surveyors, 23 CSR 2), is authorized.
§64-9-8. Board of landscape architects.
     The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section five, article twenty-two, chapter thirty of this code, modified by the board of landscape architects to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fourth day of November, two thousand three, relating to the board of landscape architects (rule of the West Virginia board of landscape architects, 9 CSR 1), is authorized with the following amendments:
     On page one, section 1.1, line one, after the words "the Board", by inserting the words "and the";
     On page three, section 4.15, line two, after the words "Section 8 of", by striking out the words "these rules" and inserting in lieu thereof the words "this rule";
     On page four, section 6.5, line two, after the words "Section 4.2 of", by striking out the words "these rules" and inserting in lieu thereof the words "this rule";
     On page five, section 6.6, line four, after the words "Section 4.17 of", by striking out the words "these rules" and inserting in lieu thereof the words "this rule";
     On page five, section 6.8, line three, after the words "10.6 of", by striking out the words "these rules" and inserting in lieu thereof the words "this rule";
     And,
     On page seven, section 7.7, line four, after the word "or", by striking out the words "these rules" and inserting in lieu thereof the words "this rule", and after the words "violation of", by striking out the words "these rules" and inserting in lieu thereof, the words "this rule".
§64-9-9. Board of examiners for licensed practical nurses.
     The legislative rule filed in the state register on the twenty-third day of June, two thousand three, authorized under the authority of section one, article seven-a, chapter thirty of this code, relating to the board of examiners for licensed practical nurses (policies and procedures for development and maintenance of education programs in practical nursing, 10 CSR 1), is authorized.
§64-9-10. Board of medicine.
     The legislative rule filed in the state register on the sixteenth day of July, two thousand three, authorized under the authority of section seven, article three, chapter thirty of this code, relating to the board of medicine (licensing and disciplinary procedures: Physicians; and podiatrists, 11 CSR 1a), is authorized.
§64-9-11. Board of optometry.
     The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section three, article eight, chapter thirty of this code, modified by the board of optometry to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighteenth day of December, two thousand three, relating to the board of optometry (rule of the West Virginia board of optometry, 14 CSR 1), is authorized.
§64-9-12. Board of examiners of psychologists.
     The legislative rule filed in the state register on the eighteenth day of June, two thousand three, authorized under the authority of section six, article twenty-one, chapter thirty of this code, modified by the board of examiners of psychologists to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of August, two thousand three, relating to the board of examiners of psychologists (fees, 17 CSR 1), is authorized.
§64-9-13. Public service commission.
     The legislative rule filed in the state register on the twenty-first day of November, two thousand three, authorized under the authority of section three, article seventeen-a, chapter seventeen-c of this code, modified by the public service commission to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-sixth day of January, two thousand four, relating to the public service commission (transportation of coal by commercial motor vehicles, 150 CSR 27), is authorized.
§64-9-14. Records management and preservation board.
     The legislative rule filed in the state register on the thirteenth day of June, two thousand three, authorized under the authority of section fifteen, article eight, chapter five-a of this code, relating to the records management and preservation board (general management and preservation of county records, 100 CSR 2), is authorized
with the following amendment:
     On page seven, section five, subsection 5.2, line 1, by striking out the word "shall" and inserting the word "may".
§64-9-15. Statewide addressing and mapping board.
     The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section six, article one, chapter twenty-four-e of this code, modified by the statewide addressing and mapping board to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-sixth day of January, two thousand four, relating to the statewide addressing and mapping board (addressing and mapping standards and participation by public agencies in statewide addressing and mapping projects, 169 CSR 2), is authorized.;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 399--A Bill to amend and reenact article 9, chapter 64 of the code of West Virginia, 1931, as amended, relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule- making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee and as amended by the Legislature; disapproving certain rules; authorizing board of accountancy to promulgate legislative rule relating to the board and rules of professional conduct; authorizing commissioner of agriculture to promulgate legislative rule relating to frozen desserts and imitation frozen desserts; authorizing commissioner of agriculture to promulgate legislative rule relating to dairy products and imitation dairy products; authorizing commissioner of agriculture to promulgate legislative rule relating to seed law; authorizing board of architects to promulgate legislative rule relating to registration of architects; authorizing auditor's office to promulgate legislative rule relating to transaction fee and rate structure; authorizing auditor's office to promulgate legislative rule relating to state purchasing card program; authorizing board of examiners in counseling to promulgate legislative rule relating to fees; authorizing board of registration for professional engineers to promulgate legislative rule relating to governance of board; authorizing board of examiners of land surveyors to promulgate legislative rule relating to minimum standards for practice of land surveying; authorizing board of examiners of land surveyors to promulgate legislative rule relating to mandatory continuing education for land surveyors; authorizing board of landscape architects to promulgate legislative rule relating to board; authorizing board of examiners for licensed practical nurses to promulgate legislative rule relating to policies and procedures for development and maintenance of education programs in practical nursing; authorizing board of medicine to promulgate legislative rule relating to licensing and disciplinary procedures: Physicians and podiatrists; authorizing board of optometry to promulgate legislative rule relating to board; authorizing board of examiners of psychologists to promulgate legislative rule relating to fees; authorizing public service commission to promulgate legislative rule relating to transportation of coal by commercial motor vehicles; authorizing records management and preservation board to promulgate legislative rule relating to general management and preservation of county records; and authorizing statewide addressing and mapping board to promulgate legislative rule relating to addressing and mapping standards and participation by public agencies in statewide addressing and mapping projects.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 399, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 399) passed with its House of Delegates amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 399) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 418, Allowing certain sheriff employees to carry deadly weapons.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. COURTS AND OFFICERS.
§50-1-14. Duties of sheriff; service of process; bailiff.
     (a) It shall be the duty of each sheriff to execute all civil and criminal process from any magistrate court which may be directed to such sheriff. Process shall be served in the same manner as provided by law for process from circuit courts.
     Subject to the supervision of the chief justice of the supreme court of appeals or of the judge of the circuit court, or the chief judge thereof if there is more than one judge of the circuit court, it shall be the duty of the sheriff, or his or her designated deputy, to serve as bailiff of a magistrate court upon the request of the magistrate. Such service shall also be subject to such administrative rules as may be promulgated by the supreme court of appeals. A writ of mandamus shall lie on behalf of a magistrate to enforce the provisions of this section.
     (b) The sheriff of any county may employ, by and with the consent of the county commission, one or more persons whose sole duties shall be the service of civil process and the service of subpoenas and subpoenas duces tecum. Any such person shall not be considered a deputy or deputy sheriff within the meaning of subdivision (2), subsection (a), section two, article fourteen, chapter seven of this code, nor shall any such person be authorized to carry deadly weapons in the performance of his or her duties: Provided, That the sheriff may authorize an employee whose sole duties involve service of civil process to carry a firearm, if the employee completes all training requirements otherwise applicable to deputy sheriffs for the use and handling of firearms: Provided, however, That the sheriff may authorize previously certified West Virginia law-enforcement officers to carry a deadly weapon in the performance of the duties of the officers under the provisions of this section: Provided, however further, That these officers and employees maintain yearly weapons' qualifications and are bonded through the office of the sheriff.;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 418--A Bill to amend and reenact §50-1-14 of the code of West Virginia, 1931, as amended, relating to authorizing civil process servers employed by a county sheriff to carry firearms; and requiring training, continued annual weapons' qualifications and bonding through the office of the sheriff.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 418, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 418) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 428, Defining "transacting insurance".
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §33-31-1, §33-31-2, §33-31-4, §33-31-5, §33-31-6, §33-31-7, §33-31-8, §33-31-9, §33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of the code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto nine new sections, designated §33-31-17, §33-31-18, §33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24 and §33-31-25; and that said code be amended by adding thereto a new article, designated §33-31A-1, §33-31A-2, §33-31A-3, §33-31A-4, §33-31A-5, §33-31A-6, §33-31A-7, §33-31A-8 and §33-31A-9, all to read as follows:
ARTICLE 31. CAPTIVE INSURANCE.
§33-31-1. Definitions.
   As used in this chapter, unless the context requires otherwise:
   (1) "Affiliated company" means any company in the same corporate system as a parent, an industrial insured or a member organization by virtue of common ownership, control, operation or management.
   (2) "Alien captive insurance company" means any insurance company formed to write insurance business for its parents and affiliates and licensed pursuant to the laws of a country other than the United States which imposes statutory or regulatory standards in a form acceptable to the commissioner on companies transacting the business of insurance in such jurisdiction.
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(2) (3) "Association" means any legal association of individuals, corporations, partnerships or associations limited liability companies, partnerships, associations or other entities that has been in continuous existence for at least one year, the member organizations of which, collectively or which does itself, whether or not in conjunction with some or all of the member organizations:
   (A) Own, control or hold with power to vote all of the outstanding voting securities of an association captive insurance company incorporated as a stock insurer; or
   (B) Have complete voting control over an association captive insurance company incorporated as a mutual insurer; or
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(C) Constitute all of the subscribers of an association captive insurance company formed as a reciprocal insurer.
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(3) (4) "Association captive insurance company" means any company that insures risks of the member organizations of the association, and their affiliated companies.
   (5) "Branch business" means any insurance business transacted by a branch captive insurance company in this state.
___(6) "Branch captive insurance company" means any alien captive insurance company licensed by the commissioner to transact the business of insurance in this state through a business unit with a principal place of business in this state.
___(7) "Branch operations" means any business operations of a branch captive insurance company in this state.
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(4) (8) "Captive insurance company" means any pure captive insurance company, association captive insurance company, or sponsored captive insurance company, industrial insured captive insurance company or risk retention group formed or licensed under the provisions of this chapter. For purposes of this chapter, a branch captive insurance company shall be a pure captive insurance company with respect to operations in this state, unless otherwise permitted by the commissioner.
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(5) (9) "Commissioner" means the insurance commissioner of West Virginia.
   (10) "Controlled unaffiliated business" means any company:
___
(A) That is not in the corporate system of a parent and affiliated companies;
___
(B) That has an existing contractual relationship with a parent or affiliated company; and
___
(C) Whose risks are managed by a pure captive insurance company in accordance with section nineteen of this article.
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(6) (11) "Industrial insured" means an insured:
   (A) Who procures the insurance of any risk or risks by use of the services of a full-time employee acting as an insurance manager or buyer;
   (B) Whose aggregate annual premiums for insurance on all risks total at least twenty-five thousand dollars; and
   (C) Who has at least twenty-five full-time employees.
   (7) (12) "Industrial insured captive insurance company" means any company that insures risks of the industrial insureds that comprise the industrial insured group and their affiliated companies.
   (8) (13) "Industrial insured group" means any group that meets the following criteria:
   
Any group of industrial insureds that collectively:
   (i) (A) Own, control or hold with power to vote all of the outstanding voting securities of an industrial insured captive insurance company incorporated as a stock insurer; or
   
(ii) (B) Have complete voting control over an industrial insured captive insurance company incorporated as a mutual insurer; or
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(C) Constitute all of the subscribers of an industrial insured captive insurance company formed as a reciprocal insurer.
   (9) (14) "Member organization" means any individual, corporation, limited liability company, partnership, or association or other entity that belongs to an association.
   (15) "Mutual corporation" means a corporation organized without stockholders and includes a nonprofit corporation with members.
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(10) (16) "Parent" means a corporation, limited liability company, partnership, other entity or individual that directly or indirectly owns, controls or holds with power to vote more than fifty percent of the outstanding voting:
___
(A) Securities of a pure captive insurance company organized as a stock corporation; or
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(B) Membership interests of a pure captive insurance company organized as a nonprofit corporation.
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(11) (17) "Pure captive insurance company" means any company that insures risks of its parent and affiliated companies or controlled unaffiliated business.
   (18) "Risk retention group" means a captive insurance company organized under the laws of this state pursuant to the Liability Risk Retention Act of 1986, 15 U. S. C. §3901, et seq., as amended, as a stock or mutual corporation, a reciprocal or other limited liability entity.
§33-31-2. Licensing; authority.
   (a) Any captive insurance company, when permitted by its articles of association, or charter or other organizational document, may apply to the commissioner for a license to do any and all insurance comprised in chapter thirty-three of this code section ten, article one of this chapter except as indicated in subdivision (4), subsection (a) of this section: Provided, That said captive insurance company maintains its all captive insurance companies, except pure captive insurance companies, shall maintain their principal office and principal place of business in this state: Provided, however, That:
   (1) No pure captive insurance company may insure any risks other than those of its parent and affiliated companies or controlled unaffiliated business;
   (2) No association captive insurance company may insure any risks other than those of the member organizations of its association, and their affiliated companies;
   (3) No industrial insured captive insurance company may insure any risks other than those of the industrial insureds that comprise the industrial insured group, and their affiliated companies;
   (4) No risk retention group may insure any risks other than those of its members and owners;
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(4) (5) No captive insurance company may provide personal motor vehicle or homeowner's insurance coverage or any component thereof; and
   
(5) (6) No captive insurance company may accept or cede reinsurance except as provided in section eleven hereof of this article;
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(7) Any captive insurance company may provide excess workers' compensation insurance to its parent and affiliated companies, unless prohibited by the federal law or laws of the state having jurisdiction over the transaction. Any captive insurance company, unless prohibited by federal law, may reinsure workers' compensation of a qualified self-insured plan of its parent and affiliated companies; and
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(8) Any captive insurance company which insures risks described in subsections (a) and (b), section ten, article one of this chapter shall comply with all applicable state and federal laws.
   (b) No captive insurance company may do any insurance business in this state unless:
   (1) It first obtains from the commissioner a license authorizing it to do insurance business in this state;
   (2) Its board of directors, or in the case of a reciprocal insurer, its subscribers' advisory committee, holds at least one meeting each year in this state; and
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(3) It maintains its principal place of business in this state; and
   
(4) (3) It appoints a resident registered agent to accept service of process and to otherwise act on its behalf in this state: Provided, That whenever such registered agent cannot with reasonable diligence be found at the registered office of the captive insurance company, the secretary of state shall be an agent of such captive insurance company upon whom any process, notice or demand may be served.
   (c) (1) Before receiving a license, a captive insurance company shall file:
   (A) File with the commissioner a certified copy of its charter and bylaws organizational documents, a statement under oath of its president and secretary showing its financial condition and any other statements or documents required by the commissioner; and
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(B) Submit to the commissioner for approval a description of the coverages, deductibles, coverage limits and rates, together with such additional information as the commissioner may reasonably require. In the event of any subsequent material change in any item in such description, the captive insurance company shall submit to the commissioner for approval an appropriate revision and shall not offer any additional kinds of insurance until a revision of such description is approved by the commissioner. The captive insurance company shall inform the commissioner of any material change in rates within thirty days of the adoption of such change.
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In addition to the information required above, each
   
(2) Each applicant captive insurance company shall also file with the commissioner evidence of the following:
   (1) (A) The amount and liquidity of its assets relative to the risks to be assumed;
   (2) (B) The adequacy of the expertise, experience and character of the person or persons who will manage it;
   (3) (C) The overall soundness of its plan of operation;
   (4) (D) The adequacy of the loss prevention programs of its parent, member organizations, or industrial insureds as applicable; and
   (5) (E) Such other factors deemed relevant by the commissioner in ascertaining whether the proposed captive insurance company will be able to meet its policy obligations.
   (3) Information submitted pursuant to this subsection shall be and remain confidential and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except that:
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(A) Such information may be discoverable by a party in a civil action or contested case to which the captive insurance company that submitted such information is a party, upon a showing by the party seeking to discover such information that:
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(i) The information sought is relevant to and necessary for the furtherance of such action or case;
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(ii) The information sought is unavailable from other nonconfidential sources; and
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(iii) A subpoena issued by a judicial or administrative officer of competent jurisdiction has been submitted to the commissioner: Provided, That the provisions of this subdivision shall not apply to any risk retention group; and
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(B) The commissioner may, in the commissioner's discretion, disclose such information to a public officer having jurisdiction over the regulation of insurance in another state if:
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(i) The public official shall agree in writing to maintain the confidentiality of such information; and
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(ii) The laws of the state in which such public official serves require such information to be and to remain confidential.
   (d) Each captive insurance company shall pay to the commissioner a nonrefundable fee of two hundred dollars for examining, investigating and processing its application for license, and upon issuance of a license, an annual license fee of three hundred dollars. In addition, it shall pay fees and charges in accordance with article three of this chapter and the commissioner is authorized to retain legal, financial and examination services from outside the department, the reasonable cost of which may be charged against the applicant. The provisions of subsection (r), section nine, article two of this chapter shall apply to examinations, investigations and processing conducted under the authority of this section. In addition, each captive insurance company shall pay a license fee for the year of registration and a renewal fee for each year thereafter of three hundred dollars.
   (e) If the commissioner is satisfied that the documents and statements that such captive insurance company has filed comply with the provisions of this chapter, he the commissioner may grant a license authorizing it to do insurance business in this state until the first day of April, thereafter, which license may be renewed.
§33-31-4. Minimum capital and surplus; letter of credit.
   
No pure captive insurance company, association captive insurance company incorporated as a stock insurer, or industrial insured captive insurance company incorporated as a stock insurer shall be issued a license unless it shall possess and thereafter maintain unimpaired paid-in capital of:
   
(1) In the case of a pure captive insurance company, not less than one hundred thousand dollars;
   
(2) In the case of an association captive insurance company incorporated as a stock insurer, not less than three hundred twenty thousand dollars; and
   
(3) In the case of an industrial insured captive insurance company incorporated as a stock insurer, not less than one hundred sixty thousand dollars.
   
Such capital may be in the form of cash or an irrevocable letter of credit issued by a bank chartered by the state of West Virginia or a member bank of the federal reserve system and approved by the commissioner.
   
(a) No captive insurance company shall be issued a license unless it shall possess and thereafter maintain free surplus unimpaired paid-in capital of:
   (1) In the case of a pure captive insurance company, not less than one hundred fifty thousand dollars;
   (2) In the case of an association captive insurance company, incorporated as a stock insurer, not less than two hundred eighty three hundred fifty thousand dollars;
   (3) In the case of an industrial insured captive insurance company, incorporated as a stock insurer not less than two hundred forty fifty thousand dollars;
   (4) In the case of an association captive insurance company incorporated as a mutual insurer a risk retention group, not less than six five hundred thousand dollars; and
   (5) In the case of an industrial insured captive insurance company incorporated as a mutual insurer a sponsored captive insurance company, not less than four hundred two hundred fifty thousand dollars.
   (b) No captive insurance company shall be issued a license unless it possesses and thereafter maintains unimpaired paid-in surplus of:
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(1) In the case of a pure captive insurance company, not less than one hundred fifty thousand dollars;
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(2) In the case of an association captive insurance company, not less than three hundred fifty thousand dollars;
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(3) In the case of an industrial insured captive insurance company, not less than two hundred fifty thousand dollars;
___
(4) In the case of a risk retention group, not less than five hundred thousand dollars; and
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(5) In the case of a sponsored captive insurance company, not less than two hundred fifty thousand dollars.
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(c) The commissioner may prescribe additional capital and surplus based upon the type, volume and nature of insurance business transacted.
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(d) Such Capital and surplus may be in the form of cash or an irrevocable letter of credit issued by a bank chartered by the state of West Virginia or a member bank of the federal reserve system and approved by the commissioner.
§33-31-5. Dividends.
   No captive insurance company may pay a dividend out of, or other distribution with respect to, capital or surplus without the prior approval of the commissioner. Approval of an ongoing plan for the payment of dividends or other distributions shall be conditioned upon the retention, at the time of each payment, of capital or surplus in excess of amounts specified by, or determined in accordance with formulas approved by, the commissioner.
§33-31-6. Formation of captive insurance companies in this state.
   (a) A pure captive insurance company shall may be incorporated as a stock insurer with its capital divided into shares and held by the stockholders or as a nonprofit corporation with one or more members.
   (b) An association captive insurance company or an industrial insured captive insurance company may be incorporated:
   (1) As Incorporated as a stock insurer with its capital divided into shares and held by the stockholders; or
   (2) As Incorporated as a mutual insurer without capital stock, the governing body of which is elected by the member organizations of its association its insureds; or
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(3) Organized as a reciprocal insurer in accordance with article twenty-one of this chapter.
   (c) A captive insurance company incorporated or organized in this state shall have at least one incorporator who not less than three incorporators or three organizers of whom not less than one shall be a resident of this state.
   (d) Before the articles of association are transmitted to the secretary of state,
In the case of a captive insurance company:
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(1) (A) Formed as a corporation the incorporators shall petition the commissioner to issue a certificate setting forth his or her the commissioner's finding that the establishment and maintenance of the proposed corporation will promote the general good of the state. In arriving at such a finding the commissioner shall consider:
   (1) (i) The character, reputation, financial standing and purpose purposes of the incorporators;
   (2) (ii) The character, reputation, financial responsibility, insurance experience and business qualifications of the officers and directors; and
   (3) (iii) Such other aspects as the commissioner deems shall
deem
advisable.
   (e) (B) The articles of association incorporation, such certificate and the organization fee shall be transmitted to the secretary of state, who shall thereupon record both the articles of incorporation and the certificate.
   (2) Formed as a reciprocal insurer, the organizers shall petition the commissioner to issue a certificate setting forth the commissioner's finding that the establishment and maintenance of the proposed association will promote the general good of the state. In arriving at such a finding the commissioner shall consider the items set forth in subparagraphs (i), (ii) and (iii), paragraph (A), subdivision (1) of this subsection.
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(f) (e) The capital stock of a captive insurance company incorporated as a stock insurer shall be issued at not less than may be authorized with no par value.
   (f) In the case of a captive insurance company:
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(g) (1) Formed as a corporation, at least one of the members of the board of directors of a captive insurance company incorporated in this state shall be a resident of this state; and
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(2) Formed as a reciprocal insurer, at least one of the members of the subscribers' advisory committee shall be a resident of this state.
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(h) (g) Captive Other than captive insurance companies formed as nonprofit corporations under chapter thirty-one-e of this code, captive insurance companies formed as corporations under the provisions of this chapter article shall have the privileges and be subject to the provisions of the general corporation law as well as the applicable provisions contained in this chapter. Captive insurance companies are subject to the provisions of article thirty-three, article thirty-four, article thirty-seven and article thirty-nine of this chapter. In the event of conflict between the provisions of said general corporation law and the provisions of this chapter, the latter shall control.
   (h) Captive insurance companies formed as nonprofit corporations under the provisions of this article shall have the privileges and be subject to the provisions of chapter thirty-one-e of this code as well as the applicable provisions contained in this chapter. In the event of conflict between the provisions of chapter thirty-one-e of this code and the provisions of this chapter, the latter shall control.
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(i) The provisions of sections twenty-five, twenty-seven and twenty-eight, article five of this chapter and section three, article twenty-seven of this chapter, pertaining to mergers, consolidations, conversions, mutualizations, redomestications and mutual holding companies, shall apply in determining the procedures to be followed by captive insurance companies in carrying out any of the transactions described therein, except that:
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(1) The commissioner may waive or modify the requirements for public notice and hearing in accordance with rules which the commissioner may adopt addressing categories of transactions. If a notice of public hearing is required, but no one requests a hearing, then the commissioner may cancel the hearing; and
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(2) An alien insurer may be a party to a merger authorized under this subsection: Provided, That the requirements for a merger between a captive insurance company and a foreign insurer under section twenty-five, article five of this chapter shall apply to a merger between a captive insurance company and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes of said section.
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(j) Captive insurance companies formed as reciprocal insurers under the provisions of this chapter shall have the privileges and be subject to the provisions of article twenty-one of this chapter in addition to the applicable provisions of this chapter. In the event of a conflict between the provisions of article twenty-one of this chapter and the provisions of this chapter, the latter shall control. To the extent a reciprocal insurer is made subject to other provisions of this chapter pursuant to article twenty-one of this chapter, such provisions shall not be applicable to a reciprocal insurer formed under this chapter unless such provisions are expressly made applicable to captive insurance companies under this chapter.
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(k) The articles of incorporation or bylaws of a captive insurance company formed as a corporation may authorize a quorum of its board of directors to consist of no fewer than one third of the fixed or prescribed number of directors determined under section eight hundred twenty-four, article eight, chapter thirty-one-e of this code.
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(l) The subscribers' agreement or other organizing document of a captive insurance company formed as a reciprocal insurer may authorize a quorum of its subscribers' advisory committee to consist of no fewer than one third of the number of its members.
§33-31-7. Reports and statements.
   (a) Captive insurance companies shall not be required to make any annual report except as provided in this chapter.
   (b) On or before the first day of March first of each year, each captive insurance company shall submit to the commissioner a report of its financial condition, verified by oath of two of its executive officers. Each captive insurance company shall report using generally accepted accounting principles, unless the commissioner approves the use of statutory accounting principles, with any appropriate or necessary modifications or adaptations thereof required or approved or accepted by the commissioner for the type of insurance and kinds of insurers to be reported upon, and as supplemented by additional information required by the commissioner. Except as otherwise provided, each association captive insurance company and each risk retention group shall file its report in the form required by section fourteen, article three of this chapter, and each risk retention group shall comply with the requirements set forth in article thirty-two of this chapter. The commissioner shall by rule propose the form forms in which pure captive insurance companies and industrial insured captive insurance companies shall report.
   (c) Any pure captive insurance company or an industrial insured captive insurance company may make written application for filing the required report on a fiscal year-end. If an alternative reporting date is granted:
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(1) The annual report is due sixty days after the fiscal year-end; and
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(2) In order to provide sufficient detail to support the premium tax return, the pure captive insurance company or industrial insured captive insurance company shall file on or before the first day of March of each year for each calendar year-end, pages one, two, three and five of the "captive annual statement; pure or industrial insured", verified by oath of two of its executive officers.
§33-31-8. Examinations and investigations.
   
(a) At least once in three five years, and whenever the commissioner determines it to be prudent, he the commissioner shall personally, or by some competent person appointed by him the commissioner, visit each captive insurance company and thoroughly inspect and examine its affairs to ascertain its financial condition, its ability to fulfill its obligations and whether it has complied with the provisions of this chapter. The commissioner upon application, in his discretion, may extend the aforesaid three-year period to five years, provided said captive insurance company is subject to a comprehensive annual audit during such period of a scope satisfactory to the commissioner by independent auditors approved by him. The captive insurance company shall be subject to the provisions of section nine, article two of this chapter in regard to the expense and conduct of the examination.
   (b) All examination reports, preliminary examination reports or results, working papers, recorded information, documents and copies thereof produced by, obtained by or disclosed to the commissioner or any other person in the course of an examination made under this section are confidential and are not subject to subpoena and may not be made public by the commissioner or an employee or agent of the commissioner without the written consent of the company, except to the extent provided in this subsection. Nothing in this subsection shall prevent the commissioner from using such information in furtherance of the commissioner's regulatory authority under this title. The commissioner may, in the commissioner's discretion, grant access to such information to public officers having jurisdiction over the regulation of insurance in any other state or country, or to law-enforcement officers of this state or any other state or agency of the federal government at any time, so long as such officers receiving the information agree in writing to hold it in a manner consistent with this section.
§33-31-9. Grounds and procedures for suspension or revocation of license.
  (a) The license of a captive insurance company to do any insurance business in this state may be suspended or revoked by the commissioner for any of the following reasons:
   (1) Insolvency or impairment of capital or surplus;
   (2) Failure to meet the requirements of section four or five of this article;
   (3) Refusal or failure to submit an annual report, as required by section seven of this article, or any other report or statement required by law or by lawful order of the commissioner;
   (4) Failure to comply with the provisions of its own charter, or bylaws or other organizational document;
   (5) Failure to submit to examination or any legal obligation relative thereto, as required by section eight of this article;
   (6) Refusal or failure to pay the cost of examination as required by section eight of this article;
   (7) Use of methods that, although not otherwise specifically prohibited by law, nevertheless render its operation detrimental or its condition unsound with respect to the public or to its policyholders; or
   (8) Failure otherwise to comply with the laws of this state.
   (b) If the commissioner finds, upon examination, hearing or other evidence, that any captive insurance company has committed any of the acts specified in violated any provision of subsection (a) of this section, he the commissioner may suspend or revoke such company's license if he the commissioner deems it in the best interest of the public and the policyholders of such captive insurance company, notwithstanding any other provision of this title.
§33-31-10. Legal investments.
   (a) An association Association captive insurance company companies and risk retention groups shall comply with the investment requirements of the commissioner contained in article eight of this chapter, as applicable. Section eleven, article seven of this chapter shall apply to association captive insurance companies and risk retention groups except to the extent it is inconsistent with approved accounting standards in use by the company. Notwithstanding any other provision of this chapter, the commissioner may approve the use of alternative reliable methods of valuation and rating.
   (b) No pure captive insurance company or industrial insured captive insurance company may shall be subject to any restrictions on allowable investments whatever, including those limitations contained in article eight of this chapter: Provided, That the commissioner may, however, prohibit or limit any investment that threatens the solvency or liquidity of any such company.
   (c) No pure captive insurance company may make a loan to or an investment in its parent company or affiliates without prior written approval of the commissioner, and any such loan or investment must be evidenced by documentation approved by the commissioner. Loans of minimum capital and surplus funds required by section four of this article are prohibited.
§33-31-11. Reinsurance.
   
(a) A Any captive insurance company may procure reinsurance or issue policies of reinsurance to other licensed insurers transacting like kinds of insurance, pursuant to the provisions of section fifteen, article four of this chapter provide reinsurance, comprised in section fifteen-a, article four of this chapter, on risks ceded by any other insurer.
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(b) Any captive insurance company may take credit for the reinsurance of risks or portions of risks ceded to reinsurers complying with the provisions of sections fifteen-a and fifteen-b, article four of this chapter. Prior approval of the commissioner shall be required for ceding or taking credit for the reinsurance of risks or portions of risks ceded to reinsurers not complying with said sections, except for business written by an alien captive insurance company outside of the United States.
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(c) In addition to reinsurers authorized under the provisions of section fifteen, article four of this chapter, a captive insurance company may take credit for the reinsurance of risks or portions of risks ceded to a pool, exchange or association acting as a reinsurer which has been authorized by the commissioner. The commissioner may require any other documents, financial information or other evidence that such a pool, exchange or association will be able to provide adequate security for its financial obligations. The commissioner may deny authorization or impose any limitations on the activities of a reinsurance pool, exchange or association that, in the commissioner's judgment, are necessary and proper to provide adequate security for the ceding captive insurance company and for the protection and consequent benefit of the public at large.
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(d) For all purposes of this chapter, insurance by a captive insurance company of any workers' compensation qualified self-insured plan of its parent and affiliates shall be deemed to be reinsurance.
§33-31-13. Exemption from compulsory associations.
   No captive insurance company may be permitted to join or contribute financially to any plan, pool, association or guaranty or insolvency fund in this state, nor may any captive insurance company, or its insured, or its parent or any affiliated company, or any member organization of its association any insured or affiliate thereof, receive any benefit from any such plan, pool, association or guaranty or insolvency fund for claims arising out of the operations of such captive insurance company.
§33-31-14. Tax on premiums collected.
   (a) Each pure captive insurance company which maintains its principal office and principal place of business in this state shall pay to the commissioner, in the month of February of each year, a tax at the rate of five tenths of one percent on the gross amount of all premiums collected or contracted for on policies or contracts of insurance covering property or risks in this state and on risks and property situated elsewhere upon which no premium tax is otherwise paid written by the pure captive insurance company during the year ending the thirty-first day of December, next preceding, after deducting from the gross amount of direct premiums, subject to the tax, the amount received as reinsurance premiums on business in the state and the amount amounts paid to policyholders as return premiums which shall include dividends on unabsorbed premiums or premium deposits returned or credited to policyholders: Provided, That no tax shall be due or payable as to considerations received for annuity contracts.
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(b) Except as otherwise provided in subsection (a) of this section, each captive insurance company shall pay to the commissioner in the month of February of each year, a tax at the rate of two percent on the gross amount of all premiums collected on or contracted for on policies or contracts of insurance written by the captive insurance company during the year ending the thirty-first day of December, next preceding, after deducting from the direct premiums, subject to the tax, the amounts paid to policyholders as return premiums which shall include dividends on unabsorbed premiums or premium deposits returned or credited to policyholders. Each captive insurance company shall also be subject to the additional premium taxes levied by sections fourteen-a and fourteen-d, article three of this chapter and the surcharge levied by said section.
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(b) (c) The tax provided for in this section shall constitute all taxes collectible under the laws of this state from any captive insurance company, and no other premium occupation tax or other taxes shall be levied or collected from any captive insurance company by the state or any county, city or municipality within this state, except ad valorem taxes.
   (d) The tax provided for in this section shall be calculated on an annual basis, notwithstanding policies or contracts of insurance or contracts of reinsurance issued on a multiyear basis. In the case of multiyear policies or contracts, the premium shall be prorated for purposes of determining the tax under this section.
§33-31-15. Rules and regulations.
   The commissioner may establish rules and from time to time amend such rules relating to captive insurance companies as are necessary to enable him the commissioner to carry out the provisions of this chapter.
§33-31-17. Delinquency.
   Except as otherwise provided in this article, the terms and conditions set forth in article ten of this chapter, pertaining to insurance reorganizations, receiverships and injunctions, shall apply in full to captive insurance companies formed or licensed under this article.
§33-31-18. Rules for controlled unaffiliated business.
   The commissioner may adopt rules establishing standards to ensure that a parent or affiliated company is able to exercise control of the risk management function of any controlled unaffiliated business to be insured by the pure captive insurance company. Until such time as rules under this section are adopted, the commissioner may approve the coverage of such risks by a pure captive insurance company.
§33-31-19. Conversion to or merger with reciprocal insurer.
   (a) An association captive insurance company, risk retention group or industrial insured captive insurance company formed as a stock or mutual corporation may be converted to or merged with and into a reciprocal insurer in accordance with a plan therefore and the provisions of this section.
   (b) Any plan for such conversion or merger shall provide a fair and equitable plan for purchasing, retiring or otherwise extinguishing the interests of the stockholders and policyholders of a stock insurer and the members and policyholders of a mutual insurer, including a fair and equitable provision for the rights and remedies of dissenting stockholders, members or policyholders.
   (c) In the case of a conversion authorized under subsection (a) of this section:
   (1) Such conversion shall be accomplished under such reasonable plan and procedure as approved by the commissioner. The commissioner may not approve any plan of conversion unless the plan:
   (A) Satisfies the provisions of subsection (b) of this section;
   (B) Provides for a hearing, of which notice is given or to be given to the captive insurance company, its directors, officers and policyholders and, in the case of a stock insurer, its stockholders and, in the case of a mutual insurer, its members, all of which persons shall be entitled to attend and appear at such hearing. If notice of a hearing is given and no director, officer, policyholder, member or stockholder requests a hearing, the commissioner may cancel such hearing;
   (C) Provides a fair and equitable plan for the conversion of stockholder, member or policyholder interests into subscriber interests in the resulting reciprocal insurer, substantially proportionate to the corresponding interests in the stock or mutual insurer: Provided, That this requirement shall not preclude the resulting reciprocal insurer from applying underwriting criteria that could affect ongoing ownership interests; and
   (D) Is approved:
   (i) In the case of a stock insurer, by a majority of the shares entitled to vote represented in person or by proxy at a duly called regular or special meeting at which a quorum is present; and
   (ii) In the case of a mutual insurer, by a majority of the voting interests of policyholders represented in person or by proxy at a duly called regular or special meeting thereof at which a quorum is present;
   (2) The commissioner shall approve such plan of conversion if the commissioner finds that the conversion will promote the general good of the state in conformity with those standards set forth in subdivision (2), subsection (d), section six of this article;
   (3) If the commissioner approves the plan, the commissioner shall amend the converting insurer's certificate of authority to reflect conversion to a reciprocal insurer and issue such amended certificate of authority to the company's attorney-in-fact;
   (4) Upon the issuance of an amended certificate of authority of a reciprocal insurer by the commissioner, the conversion shall be effective; and
   (5) Upon the effectiveness of such conversion the corporate existence of the converting insurer shall cease and the resulting reciprocal insurer shall notify the secretary of state of such conversion.
   (d) A merger authorized under subsection (a) of this section shall be accomplished substantially in accordance with the procedures set forth in sections twenty-five and twenty-eight, article five of this chapter, except that, solely for purposes of such merger:
   (1) The plan of merger shall satisfy the provisions of subsection (b) of this section;
   (2) The subscribers' advisory committee of a reciprocal insurer shall be equivalent to the board of directors of a stock or mutual insurance company;
   (3) The subscribers of a reciprocal insurer shall be the equivalent of the policyholders of a mutual insurance company;
   (4) If a subscribers' advisory committee does not have a president or secretary, the officers of such committee having substantially equivalent duties shall be deemed the president or secretary of such committee;
   (5) The commissioner shall approve the articles of merger if the commissioner finds that the merger will promote the general good of the state in conformity with those standards set forth in subdivision (2), subsection (d), section six of this article. If the commissioner approves the articles of merger, the commissioner shall endorse the commissioner's approval thereon and the surviving insurer shall present the same to the secretary of state at the secretary of state's office;
   (6) Notwithstanding section four of this article, the commissioner may permit the formation, without surplus, of a captive insurance company organized as a reciprocal insurer, into which an existing captive insurance company may be merged for the purpose of facilitating a transaction under this section: Provided, That there shall be no more than one authorized insurance company surviving such merger; and
   (7) An alien insurer may be a party to a merger authorized under subsection (a) of this section: Provided, That the requirements for a merger between a domestic and a foreign insurer under section twenty-five, article five of this chapter shall apply to a merger between a domestic and an alien insurer under this subsection. Such alien insurer shall be treated as a foreign insurer under section twenty-five, article five of this chapter and such other jurisdictions shall be the equivalent of a state for purposes of said section.
§33-31-20. Branch captive insurance company formation.
   (a) A branch captive may be established in this state in accordance with the provisions of this article to write in this state only insurance or reinsurance of the employee benefit business of its parent and affiliated companies which is subject to the provisions of the federal Employee Retirement Income Security Act of 1974 and set forth in 29 U. S. C. §1001, et seq., as amended. In addition to the general provisions of this chapter, the provisions of sections twenty-one through twenty-five, inclusive, of this article shall apply to branch captive insurance companies.
   (b) No branch captive insurance company shall do any insurance business in this state unless it maintains the principal place of business for its branch operations in this state.
§33-31-21. Security required.
   In the case of a branch captive insurance company, as security for the payment of liabilities attributable to the branch operations, the commissioner shall require that a trust fund, funded by an irrevocable letter of credit or other acceptable asset, be established and maintained in the United States for the benefit of United States policyholders and United States ceding insurers under insurance policies issued or reinsurance contracts issued or assumed by the branch captive insurance company through its branch operations. The amount of such security may be no less than the amount set forth in subdivision (1), subsection (a), section four of this article and the reserves on such insurance policies or such reinsurance contracts, including reserves for losses, allocated loss adjustment expenses, incurred but not reported losses, and unearned premiums with regard to business written through the branch operations: Provided, That the commissioner may permit a branch captive insurance company that is required to post security for loss reserves on branch business by its reinsurer to reduce the funds in the trust account required by this section by the same amount so long as the security remains posted with the reinsurer. If the form of security selected is a letter of credit, the letter of credit must be established by, or issued or confirmed by, a bank chartered in this state or a member bank of the federal reserve system.
§33-31-22. Certificate of general good.

   In the case of a captive insurance company licensed as a branch captive, the alien captive insurance company shall petition the commissioner to issue a certificate setting forth the commissioner's finding that, after considering the character, reputation, financial responsibility, insurance experience and business qualifications of the officers and directors of the alien captive insurance company, the licensing and maintenance of the branch operations will promote the general good of the state. The alien captive insurance company may register to do business in this state after the commissioner's certificate is issued.
§33-31-23. Reports.
   Prior to the first day of March of each year, or with the approval of the commissioner within sixty days after its fiscal year-end, a branch captive insurance company shall file with the commissioner a copy of all reports and statements required to be filed under the laws of the jurisdiction in which the alien captive insurance company is formed, verified under oath by its president and secretary. If the commissioner is satisfied that the annual report filed by the alien captive insurance company in its domiciliary jurisdiction provides adequate information concerning the financial condition of the alien captive insurance company, the commissioner may waive the requirement for completion of the captive annual statement for business written in the alien jurisdiction.
§33-31-24. Examination.
   (a) The examination of a branch captive insurance company pursuant to section eight of this article shall be of branch business and branch operations only, so long as the branch captive insurance company annually provides to the commissioner a certificate of compliance, or its equivalent, issued by or filed with the licensing authority of the jurisdiction in which the branch captive insurance company is formed, and demonstrates to the commissioner's satisfaction that it is operating in sound financial condition in accordance with all applicable laws and regulations of such jurisdiction.
   (b) As a condition of licensure, the alien captive insurance company shall grant authority to the commissioner for examination of the affairs of the alien captive insurance company in the jurisdiction in which the alien captive insurance company is formed.
§33-31-25. Taxation.
   In the case of a branch captive insurance company, the tax provided for in section fourteen of this article shall apply only to the branch business of such company.
ARTICLE 31A. SPONSORED CAPTIVE INSURANCE COMPANY FORMATION.
§33-31A-1. Applicability of article.

   In addition to the provisions of article thirty-one of this chapter, the provisions of this article shall apply to all sponsored captive insurance companies.
§33-31A-2. Definitions.
   As used in this article, unless the context requires otherwise:
   (1) "Participant" means associations, corporations, limited liability companies, partnerships, trusts and other business entities and any affiliates thereof, that are insured by a sponsored captive insurance company, where the losses of the participant are limited through a participant contract to such participant's pro rata share of the assets of one or more protected cells identified in such participant contract.
   (2) "Participant contract" means a contract by which a sponsored captive insurance company insures the risks of a participant and limits the losses of each such participant to its pro rata share of the assets of one or more protected cells identified in such participant contract.
   (3) "Protected cell" means a separate account established by a sponsored captive insurance company formed or licensed under the provisions of this chapter, in which assets are maintained for one or more participants in accordance with the terms of one or more participant contracts to fund the liability of the sponsored captive insurance company assumed on behalf of such participants as set forth in such participant contracts.
   (4) "Sponsor" means any entity that meets the requirements of section six of this article and is approved by the commissioner to provide all or part of the capital and surplus required by applicable law and to organize and operate a sponsored captive insurance company.
   (5) "Sponsored captive insurance company" means any captive insurance company:
   (A) In which the minimum capital and surplus required by applicable law is provided by one or more sponsors;
   (B) That is formed or licensed under the provisions of this chapter;
   (C) That insures the risks only of its participants through separate participant contracts; and
   (D) That funds its liability to each participant through one or more protected cells and segregates the assets of each protected cell from the assets of other protected cells and from the assets of the sponsored captive insurance company's general account.
§33-31A-3. Formation of sponsored captive insurance companies.
   One or more sponsors may form a sponsored captive insurance company under the provisions of this article. A sponsored captive insurance company shall be incorporated as a stock insurer with its capital divided into shares and held by the stockholders.
§33-31A-4. Supplemental application materials.

   In addition to the information required by subdivisions (1) and (2), subsection (c), section two, article thirty-one of this chapter, each applicant-sponsored captive insurance company shall file with the commissioner the following:
   (1) Materials demonstrating how the applicant will account for the loss and expense experience of each protected cell at a level of detail found to be sufficient by the commissioner and how it will report such experience to the commissioner;
   (2) A statement acknowledging that all financial records of the sponsored captive insurance company, including records pertaining to any protected cells, shall be made available for inspection or examination by the commissioner or the commissioner's designated agent;
   (3) All contracts or sample contracts between the sponsored captive insurance company and any participants; and
   (4) Evidence that expenses shall be allocated to each protected cell in a fair and equitable manner.
§33-31A-5. Protected cells.
   A sponsored captive insurance company formed or licensed under the provisions of this article may establish and maintain one or more protected cells to insure risks of one or more participants, subject to the following conditions:
   (1) The shareholders of a sponsored captive insurance company shall be limited to its participants and sponsors: Provided, That a sponsored captive insurance company may issue nonvoting securities to other persons on terms approved by the commissioner;
   (2) Each protected cell shall be accounted for separately on the books and records of the sponsored captive insurance company to reflect the financial condition and results of operations of such protected cell, net income or loss, dividends or other distributions to participants and such other factors as may be provided in the participant contract or required by the commissioner;
   (3) The assets of a protected cell shall not be chargeable with liabilities arising out of any other insurance business the sponsored captive insurance company may conduct;
   (4) No sale, exchange or other transfer of assets may be made by such sponsored captive insurance company between or among any of its protected cells without the consent of such protected cells;
   (5) No sale, exchange, transfer of assets, dividend or distribution may be made from a protected cell to a sponsor or participant without the commissioner's approval and in no event shall such approval be given if the sale, exchange, transfer, dividend or distribution would result in insolvency or impairment with respect to a protected cell;
   (6) Each sponsored captive insurance company shall annually file with the commissioner such financial reports as the commissioner shall require, which shall include, without limitation, accounting statements detailing the financial experience of each protected cell;
   (7) Each sponsored captive insurance company shall notify the commissioner in writing within ten business days of any protected cell that is insolvent or otherwise unable to meet its claim or expense obligations;
   (8) No participant contract shall take effect without the commissioner's prior written approval, and the addition of each new protected cell and withdrawal of any participant or termination of any existing protected cell shall constitute a change in the business plan requiring the commissioner's prior written approval; and
   (9) The business written by a sponsored captive, with respect to each cell, shall be:
   (A) Fronted by an insurance company licensed under the laws of any state;
   (B) Reinsured by a reinsurer authorized or approved by the state of West Virginia; or
   (C) Secured by a trust fund in the United States for the benefit of policyholders and claimants or funded by an irrevocable letter of credit or other arrangement that is acceptable to the commissioner. The amount of security provided shall be no less than the reserves associated with those liabilities which are neither fronted nor reinsured, including reserves for losses, allocated loss adjustment expenses, incurred but not reported losses and unearned premiums for business written through the participant's protected cell. The commissioner may require the sponsored captive to increase the funding of any security arrangement established under this subdivision. If the form of security is a letter of credit, the letter of credit must be established, issued or confirmed by a bank chartered in this state, a member of the federal reserve system or a bank chartered by another state if such state chartered bank is acceptable to the commissioner. A trust maintained pursuant to this paragraph shall be established in a form and upon such terms approved by the commissioner.
§33-31A-6. Qualification of sponsors.

   A sponsor of a sponsored captive insurance company shall be an insurer licensed under the laws of any state, a reinsurer authorized or approved under the laws of any state or a captive insurance company formed or licensed under this article. A risk retention group shall not be either a sponsor or a participant of a sponsored captive insurance company.
§33-31A-7. Authorized participants.
   Associations, corporations, limited liability companies, partnerships, trusts and other business entities may be participants in any sponsored captive insurance company formed or licensed under this chapter. A sponsor may be a participant in a sponsored captive insurance company. A participant need not be a shareholder of the sponsored captive insurance company or any affiliate thereof. A participant shall insure only its own risks through a sponsored captive insurance company.
§33-31A-8. Investments.
   Notwithstanding the provisions of section five of this article, the assets of two or more protected cells may be combined for purposes of investment, and such combination shall not be construed as defeating the segregation of such assets for accounting or other purposes. Sponsored captive insurance companies shall comply with the investment requirements contained in article eight of this chapter, as applicable: Provided, That compliance with such investment requirements shall be waived for sponsored captive insurance companies to the extent that credit for reinsurance ceded to reinsurers is allowed pursuant to section eleven, article thirty-one of this chapter or to the extent otherwise deemed reasonable and appropriate by the commissioner. Notwithstanding any other provision of this chapter, the commissioner may approve the use of alternative reliable methods of valuation and rating.
§33-31A-9. Delinquency.
   In the case of a delinquency of a sponsored captive insurance company, the provisions of section seventeen, article thirty-one of this chapter shall apply, provided:
   (1) The assets of a protected cell may not be used to pay any expenses or claims other than those attributable to such protected cell; and
   (2) Its capital and surplus shall at all times be available to pay any expenses of or claims against the sponsored captive insurance company.;
   And,
   On page one, by striking out the title and substituting therefor a new title, to read as follows:
   Eng. Senate Bill No. 428--A Bill to amend and reenact §33-31- 1, §33-31-2, §33-31-4, §33-31-5, §33-31-6, §33-31-7, §33-31-8, §33- 31-9, §33-31-10, §33-31-11, §33-31-13, §33-31-14 and §33-31-15 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto nine new sections, designated §33-31-17, §33-31-18, §33-31-19, §33-31-20, §33-31-21, §33-31-22, §33-31-23, §33-31-24 and §33-31-25; and to amend said code by adding thereto a new article, designated §33-31A-1, §33-31A-2, §33-31A-3, §33-31A-4, §33-31A-5, §33-31A-6, §33-31A-7, §33-31A-8 and §33-31A-9, all relating to captive insurance companies; authorizing establishment of and regulating branch captive insurance companies and sponsored cell captives; and generally modernizing the captive insurance law.
   On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
   Engrossed Senate Bill No. 428, as amended by the House of Delegates, was then put upon its passage.
   On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
   The nays were: None.
   Absent: Bailey--1.
   So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 428) passed with its House of Delegates amended title.
   Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
   A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
   Eng. Senate Bill No. 444, Requiring county litter control officers to enforce litter laws.
   On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
   The following House of Delegates amendments to the bill were reported by the Clerk:
   On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
   That §7-1-3ff of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §20-7-25 of said code be amended and reenacted, all to read as follows:
CHAPTER 7. COUNTY COMMISSIONS AND OFFICERS.

ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3ff. Authority of county commission to enact ordinances regulating the repair, alteration, improvement, vacating, closing, removal or demolition of unsafe or unsanitary structures and the clearance and removal of refuse, debris, overgrown vegetation, toxic spills or toxic seepage on private land; authority to create enforcement agency; procedure for complaints; promulgation of rules governing investigation and hearing of complaints; remedies for failure to comply with commission-ordered repairs or alterations; lien and sale of land to recover costs; entry on land to perform repairs and alterations or to satisfy lien; receipt of grants and subsidies.

   (a) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the repair, alteration or improvement, or the vacating and closing or removal or demolition, or any combination thereof, of any dwellings or other buildings, except for buildings utilized for farm purposes on land actually being used for farming, unfit for human habitation due to dilapidation, defects increasing the hazard of fire, accidents or other calamities, lack of ventilation, light or sanitary facilities or any other conditions prevailing in any dwelling or building, whether used for human habitation or not, which would cause the dwellings or other buildings to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
   (b) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the removal and cleanup of any accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage located on private lands which is determined to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
   (c) The county commission, in formally adopting ordinances, shall designate an enforcement agency which shall consist of the county engineer (or other technically qualified county employee or consulting engineer), county health officer or his or her designee, a fire chief from a county fire company, the county litter control officer, if the commission chooses to hire one, and two members at large selected by the county commission to serve two-year terms. The county sheriff shall serve as an ex officio member of the enforcement agency and the county officer charged with enforcing the orders of the county commission under this section.
   (d) In addition to the powers and duties imposed by this section, county litter control officers shall enforce the West Virginia litter control program established pursuant to the provisions of sections twenty-four through twenty-nine, inclusive, article seven, chapter twenty of this code. Any county commission which hires a litter control officer shall contract with the West Virginia division of natural resources for any training necessary for a litter control officer to properly fulfill his or her responsibilities under the litter control program. Nothing in this subsection supercedes in any way the authority or duty of other law-enforcement officers to preserve law and order and enforce the litter control program.
___
(d) (e) Any ordinance adopted pursuant to the provisions of this section shall provide fair and equitable rules of procedure and any other standards considered necessary to guide the enforcement agency, or its agents, in the investigation of dwelling or building conditions, accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage and shall provide for fair and equitable rules of procedure for instituting and conducting hearings in the matters before the county commission. Any entrance upon premises for the purpose of making examinations shall be made in a manner as to cause the least possible inconvenience to the persons in possession.
   (e) (f) Any county commission adopting ordinances authorized by this section shall hear and determine complaints of the enforcement agency. Complaints shall be initiated by citation issued by the county litter control officer or petition of the county engineer (or other technically qualified county employee or consulting engineer) on behalf of and at the direction of the enforcement agency, but only after that agency has investigated and determined that any dwelling, building, accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage is unsafe, unsanitary, dangerous or detrimental to the public safety or welfare and should be repaired, altered, improved, vacated, removed, closed, cleaned or demolished. The county commission shall cause the owner or owners of the private land in question to be served with a copy of the complaint. Service shall be accomplished in the manner provided in rule four of the West Virginia rules of civil procedure. The complaint shall state the findings and recommendations of the enforcement agency and that unless the owner or owners of the property file with the clerk of the county commission a written request for a hearing within ten days of receipt of the complaint, an order will be issued by the county commission implementing the recommendations of the enforcement agency. If the owner or owners of the property file a request for a hearing, the county commission shall issue an order setting this matter down for hearing within twenty days. Hearings shall be recorded by electronic device or by court reporter. The West Virginia rules of evidence do not apply to the proceedings, but each party has the right to present evidence and examine and cross-examine all witnesses. The enforcement agency has the burden of proving its allegation by a preponderance of the evidence and has the duty to go forward with the evidence. At the conclusion of the hearing the county commission shall make findings of fact, determinations and conclusions of law as to whether the dwelling or building: Is unfit for human habitation due to dilapidation; has defects that increase the hazard of fire, accidents or other calamities, lacks ventilation, light or sanitary facilities; or any other conditions prevailing in the dwelling or building, whether used for human habitation or not and whether the result of natural or manmade force or effect, which would cause such dwelling or other building to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare; or whether there is an accumulation of refuse or debris, overgrown vegetation, toxic spillage or toxic seepage on private lands which is determined to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect. The county commission has authority to order the owner or owners thereof to repair, alter, improve, vacate, remove, close, clean up or demolish the dwelling or building in question or to remove or cleanup any accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage within a reasonable time and to impose daily civil monetary penalties on the owner or owners who fail to obey an order. Appeals from the county commission to the circuit court shall be in accordance with the provisions of article three, chapter fifty-eight of this code.
   (f) (g) Upon the failure of the owner or owners of the private land to perform the ordered duties and obligations as set forth in the order of the county commission, the county commission may advertise for and seek contractors to make the ordered repairs, alterations or improvements, or the ordered demolition, removal or cleanup. The county commission may enter into any contract with any contractor to accomplish the ordered repairs, alterations or improvements or the ordered demolition, removal or cleanup.
   (g) (h) A civil proceeding may be brought in circuit court by the county commission against the owner or owners of the private land which is the subject matter of the order of the county commission to subject the private land in question to a lien for the amount of the contractor's costs in making these ordered repairs, alterations or improvements or ordered demolition, removal or cleanup, together with any daily civil monetary penalty imposed and reasonable attorney fees and court costs and to order and decree the sale of the private land in question to satisfy the lien and to order and decree that the contractor may enter upon the private land in question at any and all times necessary to make improvements, or ordered repairs, alterations or improvements, or ordered demolition, removal or cleanup. In addition, the county commission shall have the authority to institute a civil action in a court of competent jurisdiction against the landowner or other responsible party for all costs incurred by the county with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of the action.
   (h) (i) County commissions have the power and authority to receive and accept grants, subsidies, donations and services in kind consistent with the objectives of this section.
CHAPTER 20. NATURAL RESOURCES.

ARTICLE 7. LAW ENFORCEMENT, MOTORBOATING, LITTER.

§20-7-25. West Virginia litter control and recycling programs; additional duties of director; grants to counties and municipalities; and regulations relating thereto.

     (a) In addition to all other powers, duties and responsibilities granted and assigned to the director of the division of natural resources in this chapter and elsewhere by law, the director, in the administration of the West Virginia litter control program created by this section, shall:
     (1) Coordinate all industry and business organizations seeking to aid in the litter control and recycling effort;
     (2) Cooperate with all local governments to accomplish coordination of local litter control and recycling efforts;
     (3) Encourage, organize, coordinate and increase public awareness of and participation in all voluntary litter control and recycling campaigns, including citizen litter watch programs, seeking to focus the attention of the public on the litter control and recycling programs of the state and local governments and of private recycling centers;
     (4) Encourage, organize, coordinate and increase public awareness of, and participation in, a volunteer litter-reporting program. The director shall assist the county commission and the county sheriff in establishing the program, which shall utilize trained volunteers to report and collect information necessary to enable the county sheriff to issue citations to persons violating the litter laws of this state. The scope of duty of a volunteer participating in the litter-reporting program may include: Reporting the motor vehicle registration plate number, the date, time and location of a person observed littering; collecting other evidence as may be requested by the county sheriff, including taking photographs of a litter site; providing testimony in court proceedings as to litter violations observed or evidence collected by the volunteer; and providing other assistance in litter enforcement as may be requested by the county sheriff, except that in no event may a volunteer participate in the direct apprehension or arrest of a litter violator. The county sheriff may seek the assistance of the law-enforcement section of the division of natural resources to provide a training course for volunteers to instruct them in proper reporting procedures and the collection of evidence and may provide reporting forms for volunteers to record their observations of litter violations. Upon completion of the course and approval from the county sheriff, a volunteer may begin participation in the program. Volunteers participating in the program are responsible for providing their own vehicles, gasoline, cameras, cell phones and other items they may use while participating in the program and are responsible for other incidental expenses they may incur in the course of participating in the program, except as otherwise provided in this section. The commissioner of the division of highways may cause appropriate signs to be placed along primary and secondary highways to inform motorists of the volunteer litter reporting program;
_____
(4) (5) Recommend to local governing bodies that they adopt ordinances similar to the provisions of section twenty-six of this article;
     (5) (6) Investigate the methods and success of techniques of litter control, removal and disposal utilized in other states, and develop, encourage, organize and coordinate local litter control programs funded by grants awarded pursuant to subsection (b) of this section utilizing such successful techniques;
     (6) (7) Investigate the availability of, and apply for, funds available from any and all private or public sources to be used in the litter control program created by this section;
     (7) (8) Promulgate regulations pursuant to article three, chapter twenty-nine-a of this code establishing criteria for the awarding of direct and/or matching grants for the study of available research and development in the fields of litter control, removal and disposal, methods for the implementation of such research and development, and the development of public educational programs concerning litter control;
     (8) (9) Promulgate regulations pursuant to article three, chapter twenty-nine-a of this code designating public areas where litter receptacles shall be placed in accordance with subsection (d), section twenty-six of this article. The director is further authorized to specify within such regulations the minimum number of litter receptacles required to be placed at each designated public area;
     (9) (10) Attract to the state persons or industries that purchase, process or use recyclable materials; and
     (10) (11) Contract for the development, production and broadcast of radio and television messages promoting the West Virginia litter control program. The messages should increase public awareness of and promote citizen responsibility toward the reduction of litter. The director shall undertake the activities authorized in this subdivision no later than the fifteenth day of September, one thousand nine hundred eighty-eight.
     (b) Commencing on the first day of July, one thousand nine hundred eighty-six, the director shall expend annually at least fifty percent of the moneys credited to the "litter control fund" in the previous fiscal year for matching grants to counties and municipalities for the initiation and administration of litter control programs. The director may promulgate regulations pursuant to article three, chapter twenty-nine-a of this code establishing criteria for the awarding of matching grants.
     (c) The director of the division of natural resources in cooperation with the commissioner of highways, the department of commerce, the department of public safety West Virginia state police, the United States forestry service, and other local, state and federal law-enforcement agencies, shall be responsible for the administration and enforcement of all laws and regulations relating to the maintenance of cleanliness and improvement of appearances on and along highways, roads, streets, alleys and any other private or public areas of the state and these other agencies shall make recommendations to the director from time to time concerning means and methods of accomplishing litter control consistent with the provisions of this chapter. Such cooperation shall include, but not be limited to, contracts with the commissioner of highways to operate the litter control program.
     (d) All other state agencies and local governments shall cooperate with the director in effecting the purposes of the litter control program.
;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 444--A Bill to
amend and reenact §7-1-3ff of the code of West Virginia, 1931, as amended; and to amend and reenact §20-7-25 of said code, all relating to authority of county commissions to hire litter control officer; requiring county litter control officer to enforce litter laws under the litter control program; and encouraging volunteers by creating a volunteer program .
     On motion of Senator Fanning, the following amendments to the House of Delegates amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
     On page one, by striking out everything after the chapter heading and inserting in lieu thereof the following
:
ARTICLE 1. COUNTY COMMISSIONS GENERALLY.

§7-1-3ff. Authority of county commission to enact ordinances regulating the repair, alteration, improvement, vacating, closing, removal or demolition of unsafe or unsanitary structures and the clearance and removal of refuse, debris, overgrown vegetation, toxic spills or toxic seepage on private land; authority to create enforcement agency; procedure for complaints; promulgation of rules governing investigation and hearing of complaints; remedies for failure to comply with commission-ordered repairs or alterations; lien and sale of land to recover costs; entry on land to perform repairs and alterations or to satisfy lien; receipt of grants and subsidies.

     (a) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the repair, alteration or improvement, or the vacating and closing or removal or demolition, or any combination thereof, of any dwellings or other buildings, except for buildings utilized for farm purposes on land actually being used for farming, unfit for human habitation due to dilapidation, defects increasing the hazard of fire, accidents or other calamities, lack of ventilation, light or sanitary facilities or any other conditions prevailing in any dwelling or building, whether used for human habitation or not, which would cause the dwellings or other buildings to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
     (b) Plenary power and authority are hereby conferred upon every county commission to adopt ordinances regulating the removal and cleanup of any accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage located on private lands which is determined to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect.
     (c) The county commission, in formally adopting ordinances, shall designate an enforcement agency which shall consist of the county engineer (or other technically qualified county employee or consulting engineer), county health officer or his or her designee, a fire chief from a county fire company, the county litter control officer, if the commission chooses to hire one, and two members at large selected by the county commission to serve two-year terms. The county sheriff shall serve as an ex officio member of the enforcement agency and the county officer charged with enforcing the orders of the county commission under this section.
     (d) In addition to the powers and duties imposed by this section, county litter control officers
shall have authority to issue citations for violations of the provisions of section twenty-six, article seven, chapter twenty of this code after completing a training course offered by the West Virginia division of natural resources. Nothing in this subsection supercedes the authority or duty of other law-enforcement officers to preserve law and order and enforce the litter control program.
_____
(d) (e) Any ordinance adopted pursuant to the provisions of this section shall provide fair and equitable rules of procedure and any other standards considered necessary to guide the enforcement agency, or its agents, in the investigation of dwelling or building conditions, accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage and shall provide for fair and equitable rules of procedure for instituting and conducting hearings in the matters before the county commission. Any entrance upon premises for the purpose of making examinations shall be made in a manner as to cause the least possible inconvenience to the persons in possession.
     (e) (f) Any county commission adopting ordinances authorized by this section shall hear and determine complaints of the enforcement agency. Complaints shall be initiated by citation issued by the county litter control officer or petition of the county engineer (or other technically qualified county employee or consulting engineer) on behalf of and at the direction of the enforcement agency, but only after that agency has investigated and determined that any dwelling, building, accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage is unsafe, unsanitary, dangerous or detrimental to the public safety or welfare and should be repaired, altered, improved, vacated, removed, closed, cleaned or demolished. The county commission shall cause the owner or owners of the private land in question to be served with a copy of the complaint. Service shall be accomplished in the manner provided in rule four of the West Virginia rules of civil procedure. The complaint shall state the findings and recommendations of the enforcement agency and that unless the owner or owners of the property file with the clerk of the county commission a written request for a hearing within ten days of receipt of the complaint, an order will be issued by the county commission implementing the recommendations of the enforcement agency. If the owner or owners of the property file a request for a hearing, the county commission shall issue an order setting this matter down for hearing within twenty days. Hearings shall be recorded by electronic device or by court reporter. The West Virginia rules of evidence do not apply to the proceedings, but each party has the right to present evidence and examine and cross-examine all witnesses. The enforcement agency has the burden of proving its allegation by a preponderance of the evidence and has the duty to go forward with the evidence. At the conclusion of the hearing the county commission shall make findings of fact, determinations and conclusions of law as to whether the dwelling or building: Is unfit for human habitation due to dilapidation; has defects that increase the hazard of fire, accidents or other calamities, lacks ventilation, light or sanitary facilities; or any other conditions prevailing in the dwelling or building, whether used for human habitation or not and whether the result of natural or manmade force or effect, which would cause such dwelling or other building to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare; or whether there is an accumulation of refuse or debris, overgrown vegetation, toxic spillage or toxic seepage on private lands which is determined to be unsafe, unsanitary, dangerous or detrimental to the public safety or welfare, whether the result of natural or manmade force or effect. The county commission has authority to order the owner or owners thereof to repair, alter, improve, vacate, remove, close, clean up or demolish the dwelling or building in question or to remove or cleanup any accumulation of refuse or debris, overgrown vegetation or toxic spillage or toxic seepage within a reasonable time and to impose daily civil monetary penalties on the owner or owners who fail to obey an order. Appeals from the county commission to the circuit court shall be in accordance with the provisions of article three, chapter fifty-eight of this code.
     (f) (g) Upon the failure of the owner or owners of the private land to perform the ordered duties and obligations as set forth in the order of the county commission, the county commission may advertise for and seek contractors to make the ordered repairs, alterations or improvements, or the ordered demolition, removal or cleanup. The county commission may enter into any contract with any contractor to accomplish the ordered repairs, alterations or improvements or the ordered demolition, removal or cleanup.
     (g) (h) A civil proceeding may be brought in circuit court by the county commission against the owner or owners of the private land which is the subject matter of the order of the county commission to subject the private land in question to a lien for the amount of the contractor's costs in making these ordered repairs, alterations or improvements or ordered demolition, removal or cleanup, together with any daily civil monetary penalty imposed and reasonable attorney fees and court costs and to order and decree the sale of the private land in question to satisfy the lien and to order and decree that the contractor may enter upon the private land in question at any and all times necessary to make improvements, or ordered repairs, alterations or improvements, or ordered demolition, removal or cleanup. In addition, the county commission shall have the authority to institute a civil action in a court of competent jurisdiction against the landowner or other responsible party for all costs incurred by the county with respect to the property and for reasonable attorney fees and court costs incurred in the prosecution of the action.
     (h) (i) County commissions have the power and authority to receive and accept grants, subsidies, donations and services in kind consistent with the objectives of this section.;
     On page one,
by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That §7-1-3ff of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 444--A Bill to amend and reenact
§7-1-3ff of the code of West Virginia, 1931, as amended, relating to authority of county commissions to hire litter control officer; and requiring county litter control officer to enforce litter laws under the litter control program.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Senate Bill No. 444, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 444) passed with its Senate amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 460, Relating to regulating surveyors and underground surveyors.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On
page two, section one, by striking out the section caption and substituting therefor a new section caption, to read as follows:
§30-13A-1. Legislative findings; license required to practice.;
     On page seven, section three, line seventy-nine, by striking out all of subdivision (w) and inserting in lieu thereof a new subdivision (w), to read as follows:
     (w) "Mortgage/loan inspection survey" means a survey in which property lines and corner have not been established.;
     On page thirteen, section three, line two hundred eight, after the word "and" by striking out the word "features";
     On page thirty-six, section fourteen, line nine, after the word "fees" by inserting the words "as set by rule";
     On page thirty-six, section fifteen, line eleven, after the word "fees" by inserting the words "as set by rule";
     On page forty-three, section twenty-four, line six, after the word "thereto" by inserting a comma and the words "except that any document, plan, map, drawing, exhibit, sketch or pictorial representation prepared by a person exempted from the regulation and licensing requirements of this article as provided in section thirty-six of this article shall not be required to have the signature and seal affixed thereto";
     On page forty-three, section twenty-four, line eleven, after the word "changes" by inserting a comma and the words "except that any document, plan, map, drawing, exhibit, sketch or pictorial representation altered by a person exempted from the regulation and licensing requirements of this article as provided in section thirty-six of this article shall require that the person who made the alteration initial the changes";
     On page forty-four, section twenty-six, by striking out all of subsection (d) and inserting in lieu thereof a new subsection (d), to read as follows:
     (d) A licensee, endorsee, an exempt person under section thirty-six of this article or persons under the direct supervision of a licensee, endorsee or exempt person shall physically go to the land and perform the survey.;
     On page forty-seven, section twenty-six, line seventy-eight, after the word "The" by inserting the word "ares,";
     On page forty-eight, section twenty-six, line one hundred three, after the word "description" by inserting the words "or strip description, if applicable,";
     On page forty-nine, section twenty-six, line one hundred twenty-two, by striking out all of subdivision (12) and inserting in lieu thereof a new subdivision (12), to read as follows:
     (12) The name of the individual preparing the description of the survey.;
     On page fifty, section twenty-six, by striking out all of subsection (p) and inserting in lieu thereof a new subsection (p), to read as follows:
     (p) A mortgage/loan inspection survey in which boundaries on a property have not been surveyed in accordance with the methods set forth by the board, then the plat must be stamped "a mortgage inspection survey only, not a boundary survey". The surveyor must notify a landowner or other person commissioning their services if a survey or an inspection was performed.;
     And,
     On pages sixty-six and sixty-seven, section thirty-six, by striking out all of subdivisions (1) and (2) and inserting in lieu thereof two new subdivisions, designated subdivisions (1) and (2), to read as follows:
     (1) Any employee or agent of a person, firm, association or corporation, when such employee or agent is engaged in the practice of land surveying exclusively for the person, firm, association or corporation by which employed, or, if a corporation, its parents, affiliates or subsidiaries, and such person, firm, association or corporation does not hold himself, herself or itself out to the public as being engaged in the business of land surveying.
     (2) Any employee or officer of the United States, this state or any political subdivision thereof, or their agents, when such employee is engaged in the practice of land surveying exclusively for such governmental unit.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 460, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 460) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Senate Bill No. 505, Creating motor vehicle classification of "low-speed vehicle".
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. WORDS AND PHRASES DEFINED.
§17A-1-1. Definitions.

     Except as otherwise provided in this chapter, the following words and phrases, when used in this chapter, shall have the meanings respectively ascribed to them in this article:
     (a) "Vehicle" means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon stationary rails or tracks.
     (b) "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.
     (c) "Motorcycle" means every motor vehicle, including motor-driven cycles and mopeds as defined in sections five and five-a, article one, chapter seventeen-c of this code, having a saddle for the use of the rider and designed to travel on not more than three wheels in contact with the ground, but excluding a tractor.
     (d) "School bus" means every motor vehicle owned by a public governmental agency and operated for the transportation of children to or from school or privately owned and operated for compensation for the transportation of children to or from school.
     (e) "Bus" means every motor vehicle designed to carry more than seven passengers and used to transport persons; and every motor vehicle, other than a taxicab, designed and used to transport persons for compensation.
     (f) "Truck tractor" means every motor vehicle designed and used primarily for drawing other vehicles and not so constructed as to carry a load other than a part of the weight of the vehicle and load so drawn.
     (g) "Farm tractor" means every motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines and other implements of husbandry.
     (h) "Road tractor" means every motor vehicle designed, used or maintained for drawing other vehicles and not so constructed as to carry any load thereon either independently or any part of the weight of a vehicle or load so drawn.
     (i) "Truck" means every motor vehicle designed, used or maintained primarily for the transportation of property.
     (j) "Trailer" means every vehicle with or without motive power designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that no part of its weight rests upon the towing vehicle, but excluding recreational vehicles.
     (k) "Semitrailer" means every vehicle with or without motive power designed for carrying persons or property and for being drawn by a motor vehicle and so constructed that some part of its weight and that of its load rests upon or is carried by another vehicle.
     (l) "Pole trailer" means every vehicle without motive power designed to be drawn by another vehicle and attached to the towing vehicle by means of a reach, or pole, or by being boomed or otherwise secured to the towing vehicle and ordinarily used for transporting long or irregularly shaped loads such as poles, pipes or structural members capable, generally, of sustaining themselves as beams between the supporting connections.
     (m) "Specially constructed vehicles" means every vehicle of a type required to be registered hereunder not originally constructed under a distinctive name, make, model or type by a generally recognized manufacturer of vehicles and not materially altered from its original construction.
     (n) "Reconstructed vehicle" means every vehicle of a type required to be registered hereunder materially altered from its original construction by the removal, addition or substitution of essential parts, new or used.
     (o) "Essential parts" means all integral and body parts of a vehicle of a type required to be registered hereunder, the removal, alteration or substitution of which would tend to conceal the identity of the vehicle or substantially alter its appearance, model, type or mode of operation.
     (p) "Foreign vehicle" means every vehicle of a type required to be registered hereunder brought into this state from another state, territory or country other than in the ordinary course of business by or through a manufacturer or dealer and not registered in this state.
     (q) "Implement of husbandry" means every vehicle which is designed for or adapted to agricultural purposes and used by the owner thereof primarily in the conduct of his agricultural operations, including, but not limited to, trucks used for spraying trees and plants: Provided, That the vehicle may not be let for hire at any time.
     (r) "Special mobile equipment" means every self-propelled vehicle not designed or used primarily for the transportation of persons or property and incidentally operated or moved over the highways, including, without limitation, road construction or maintenance machinery, ditch-digging apparatus, stone crushers, air compressors, power shovels, graders, rollers, well-drillers, wood- sawing equipment, asphalt spreaders, bituminous mixers, bucket loaders, ditchers, leveling graders, finishing machines, motor graders, road rollers, scarifiers, earth-moving carryalls, scrapers, drag lines, rock-drilling equipment and earth-moving equipment. The foregoing enumeration shall be deemed partial and may not operate to exclude other such vehicles which are within the general terms of this subdivision.
     (s) "Pneumatic tire" means every tire in which compressed air is designed to support the load.
     (t) "Solid tire" means every tire of rubber or other resilient material which does not depend upon compressed air for the support of the load.
     (u) "Metal tire" means every tire the surface of which in contact with the highway is wholly or partly of metal or other hard, nonresilient material.
     (v) "Commissioner" means the commissioner of motor vehicles of this state.
     (w) "Department" "Division" means the department division of motor vehicles of this state acting directly or through its duly authorized officers and agents.
     (x) "Person" means every natural person, firm, copartnership, association or corporation.
     (y) "Owner" means a person who holds the legal title to a vehicle, or in the event a vehicle is the subject of an agreement for the conditional sale or lease thereof with the right of purchase upon performance of the conditions stated in the agreement and with an immediate right of possession vested in the conditional vendee or lessee, or in the event a mortgagor of a vehicle is entitled to possession, then the conditional vendee or lessee or mortgagor shall be deemed the owner for the purpose of this chapter.
     (z) "Nonresident" means every person who is not a resident of this state.
     (aa) "Dealer" or "dealers" is a general term meaning, depending upon the context in which used, either a new motor vehicle dealer, used motor vehicle dealer, factory-built home dealer, recreational vehicle dealer, trailer dealer or motorcycle dealer, as defined in section one, article six of this chapter, or all of the dealers or a combination thereof and, in some instances, a new motor vehicle dealer or dealers in another state.
     (bb) "Registered dealer" or "registered dealers" is a general term meaning, depending upon the context in which used, either a new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer or motorcycle dealer, or all of the dealers or a combination thereof, licensed under the provisions of article six of this chapter.
     (cc) "Licensed dealer" or "licensed dealers" is a general term meaning, depending upon the context in which used, either a new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer or motorcycle dealer, or all of the dealers or a combination thereof, licensed under the provisions of article six of this chapter.
     (dd) "Transporter" means every person engaged in the business of delivering vehicles of a type required to be registered hereunder from a manufacturing, assembling or distributing plant to dealers or sales agents of a manufacturer.
     (ee) "Manufacturer" means every person engaged in the business of constructing or assembling vehicles of a type required to be registered hereunder at a place of business in this state which is actually occupied either continuously or at regular periods by the manufacturer where his books and records are kept and a large share of his business is transacted.
     (ff) "Street" or "highway" means the entire width between boundary lines of every way publicly maintained when any part thereof is open to the use of the public for purposes of vehicular travel.
     (gg) "Motorboat" means any vessel propelled by an electrical, steam, gas, diesel or other fuel propelled or driven motor, whether or not the motor is the principal source of propulsion, but may not include a vessel which has a valid marine document issued by the bureau of customs of the United States government or any federal agency successor thereto.
     (hh) "Motorboat trailer" means every vehicle designed for or ordinarily used for the transportation of a motorboat.
     (ii) "All-terrain vehicle" (ATV) means any motor vehicle designed for off-highway use and designed for operator use only with no passengers, having a seat or saddle designed to be straddled by the operator and handlebars for steering control.
     (jj) "Travel trailer" means every vehicle, mounted on wheels, designed to provide temporary living quarters for recreational, camping or travel use of such size or weight as not to require special highway movement permits when towed by a motor vehicle and of gross trailer area less than four hundred square feet.
     (kk) "Fold down camping trailer" means every vehicle consisting of a portable unit mounted on wheels and constructed with collapsible partial sidewalls which fold for towing by another vehicle and unfold at the camp site to provide temporary living quarters for recreational, camping or travel use.
     (ll) "Motor home" means every vehicle, designed to provide temporary living quarters, built into an integral part of or permanently attached to a self-propelled motor vehicle, chassis or van including: (1) Type A motor home built on an incomplete truck chassis with the truck cab constructed by the second stage manufacturer; (2) Type B motor home consisting of a van-type vehicle which has been altered to provide temporary living quarters; and (3) Type C motor home built on an incomplete van or truck chassis with a cab constructed by the chassis manufacturer.
     (mm) "Snowmobile" means a self-propelled vehicle intended for travel primarily on snow and driven by a track or tracks in contact with the snow and steered by a ski or skis in contact with the snow.
     (nn) "Recreational vehicle" means a motorboat, motorboat trailer, all-terrain vehicle, travel trailer, fold down camping trailer, motor home or snowmobile.
     (oo) "Mobile equipment" means every self-propelled vehicle not designed or used primarily for the transportation of persons or property over the highway but which may infrequently or incidentally travel over the highways among job sites, equipment storage sites or repair sites, including farm equipment, implements of husbandry, well-drillers, cranes and wood-sawing equipment.      (pp) "Factory-built home" includes mobile homes, house trailers and manufactured homes.
     (qq) "Manufactured home" has the same meaning as the term is defined in section two, article nine, chapter twenty-one of this code which meets the federal Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. §5401, et seq.), effective on the fifteenth day of June, one thousand nine hundred seventy-six, and the federal manufactured home construction and safety standards and regulations promulgated by the secretary of the United States department of housing and urban development.
     (rr) "Mobile home" means a transportable structure that is wholly, or in substantial part, made, fabricated, formed or assembled in manufacturing facilities for installation or assembly and installation on a building site and designed for long-term residential use and built prior to enactment of the federal Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. §5401, et seq.), effective on the fifteenth day of June, one thousand nine hundred seventy-six, and usually built to the voluntary industry standard of the American national standards institute (ANSI) -- A119.1 standards for mobile homes.
     (ss) "House trailers" means all trailers designed and used for human occupancy on a continual nonrecreational basis, but may not include fold down camping and travel trailers, mobile homes or manufactured homes.
              (tt) "Parking enforcement vehicle" means a motor vehicle which does not fit into any other classification of vehicle in this chapter, has three or four wheels and is designed for use in an incorporated municipality by a city, county, state or other governmental entity primarily for parking enforcement or other governmental purposes with an operator area with sides permanently enclosed with rigid construction and a top which may be convertible, sealed beam headlights, turn signals, brake lights, horn, at least one rear view mirror on each side and such other equipment that will enable it to pass a standard motorcycle vehicle inspection.
     (uu) "Low-speed vehicle" means a four-wheeled motor vehicle whose attainable speed in one mile on a paved level surface is more than twenty miles per hour but not more than twenty-five miles per hour.
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF CERTIFICATES OF TITLE.

§17A-3-2. Every motor vehicle, etc., subject to registration and certificate of title provisions; exceptions.

     (a) Every motor vehicle, trailer, semitrailer, pole trailer and recreational vehicle when driven or moved upon a highway is subject to the registration and certificate of title provisions of this chapter except:
     (1) Any vehicle driven or moved upon a highway in conformance with the provisions of this chapter relating to manufacturers, transporters, dealers, lienholders or nonresidents or under a temporary registration permit issued by the division as authorized under this chapter;
     (2) Any implement of husbandry upon which is securely attached a machine for spraying fruit trees and plants of the owner or lessee or for any other implement of husbandry which is used exclusively for agricultural or horticultural purposes on lands owned or leased by the owner of the implement and which is not operated on or over any public highway of this state for any other purpose other than for the purpose of operating it across a highway or along a highway other than an expressway as designated by the commissioner of the division of highways from one point of the owner's land to another part of the owner's land, irrespective of whether or not the tracts adjoin: Provided, That the distance between the points may not exceed twenty-five miles, or for the purpose of taking it or other fixtures attached to the implement, to and from a repair shop for repairs. The exemption in this subdivision from registration and license requirements also applies to any vehicle described in this subsection or to any farm trailer owned by the owner or lessee of the farm on which the trailer is used, when the trailer is used by the owner of the trailer for the purpose of moving farm produce and livestock from the farm along a public highway for a distance not to exceed twenty-five miles to a storage house or packing plant, when the use is a seasonal operation:
     (A) The exemptions contained in this section also apply to farm machinery and tractors: Provided, That the machinery and tractors may use the highways in going from one tract of land to another tract of land regardless of whether the land is owned by the same or different persons;
     (B) Any vehicle exempted under this subsection from the requirements of annual registration certificate and license plates and fees for the registration certificate and license plate may not use the highways between sunset and sunrise unless the vehicle is classified as a Class A motor vehicle with a farm-use exemption under the provisions of section one, article ten of this chapter and has a valid and current inspection sticker as required by the provisions of article sixteen, chapter seventeen-c of this code and is traveling from one tract of land to another over a distance of twenty-five miles or less;
     (C) Any vehicle exempted under this section from the requirements of annual registration certificate and license plates may use the highways as provided in this section whether the exempt vehicle is self-propelled, towed by another exempt vehicle or towed by another vehicle required to be registered;
     (D) Any vehicle used as an implement of husbandry exempt under this section shall have the words "farm use" affixed to both sides of the implement in ten-inch letters. Any vehicle which would be subject to registration as a Class A or B vehicle if not exempted by this section shall display a farm-use exemption certificate on the lower driver's side of the windshield:
     (i) The farm-use exemption certificate shall be provided by the commissioner and shall be issued annually by the assessor of the applicant's county of residence. The assessor shall issue a farm-use exemption certificate to the applicant upon his or her determination pursuant to an examination of the property books or documentation provided by the applicant that the vehicle has been properly assessed as Class I personal property. The assessor shall charge a fee of two dollars for each certificate, which shall be retained by the assessor;
     (ii) A farm-use exemption certificate shall not exempt the applicant from maintaining the security required by chapter seventeen-d of this code on any vehicle being operated on the roads or highways of this state;
     (iii) No person charged with the offense of operating a vehicle without a farm-use exemption certificate, if required under this section, may be convicted of the offense if he or she produces in court, or in the office of the arresting officer, a valid farm-use exemption certificate for the vehicle in question within five days;
     (3) Any vehicle which is propelled exclusively by electric power obtained from overhead trolley wires though not operated upon rails;
     (4) Any vehicle of a type subject to registration which is owned by the government of the United States;
     (5) Any wrecked or disabled vehicle towed by a licensed wrecker or dealer on the public highways of this state;
     (6) The following recreational vehicles are exempt from the requirements of annual registration, license plates and fees, unless otherwise specified by law, but are subject to the certificate of title provisions of this chapter regardless of highway use: Motorboats, all-terrain vehicles and snowmobiles; and
     (7) Any special mobile equipment as defined in subsection (r), section one, article one of this chapter.
     (b) Notwithstanding the provisions of subsection (a) of this section:
     (1) Mobile homes or manufactured homes are exempt from the requirements of annual registration, license plates and fees;
     (2) House trailers may be registered and licensed; and
     (3) Factory-built homes are subject to the certificate of title provisions of this chapter.
_____(c) The division shall title and register low-speed vehicles if the manufacturer?s certificate of origin clearly identifies the vehicle as a low-speed vehicle. The division may not title or register homemade low-speed vehicles or retrofitted golf carts and such vehicles do not qualify as low-speed vehicles in this state. In addition to all other motor vehicle laws and regulations, except as specifically exempted below, low-speed vehicles are subject to the following restrictions and requirements:
_____
(1) Low-speed vehicles shall only be operated on private roads and on public roads and streets within the corporate limits of a municipality where the speed limit is not more than twenty-five miles per hour;
_____
(2) Notwithstanding any provisions in this code to the contrary, low-speed vehicles shall meet the requirements of 49 C. F. R. §571.500 (2003);
_____
(3) In lieu of annual inspection, the owner of a low-speed vehicle shall, upon initial application for registration and each renewal thereafter, certify under penalty of false swearing, that all lights, brakes, tires and seat belts are in good working condition; and
_____(4) Any person operating a low-speed vehicle must hold a valid driver?s license, not an instruction permit.
ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS; SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.

Part II. License Certificate Provisions.

§17A-6-3. License certificate required; engaging in more than one
          business; established place of business required;           civil penalties.

     (a) No person shall engage or represent or advertise that he or she is engaged or intends to engage in the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer or wrecker or dismantler in this state unless and until he or she first obtains a license certificate therefor as provided in this article, which license certificate remains unexpired, unsuspended and unrevoked. Any person desiring to engage in more than one such business must, subject to the provisions of section five of this article, apply for and obtain a separate license certificate for each such business.
     (b) A person in business as a new motor vehicle or recreational vehicle dealer may sell low-speed vehicles as defined in section one, article one of this chapter.
_____
(b) (c) Except for the qualification contained in subdivision (17), subsection (a), section one of this article with respect to a new motor vehicle dealer, each place of business of a new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer and wrecker or dismantler must be an established place of business as defined for such business in said section.
     (c) (d) Any person who violates this section shall, in addition to any other penalty prescribed by law, be subject to a civil penalty levied by the commissioner in an amount not to exceed one thousand dollars for the first violation, two thousand dollars for the second violation and five thousand dollars for every subsequent violation.
     (d) (e) The commissioner shall promulgate rules, in accordance with the provisions of chapter twenty-nine-a of this code, establishing procedures whereby persons against whom such civil penalties are to be assessed shall be afforded all due process required pursuant to the provisions of the West Virginia constitution.
§17A-6-18. Investigation; matters confidential; grounds for suspending or revoking license or imposing fine; suspension and revocation generally.

                       (a) The commissioner may conduct an investigation to determine whether any provisions of this chapter have been or are about to be violated by a licensee. Any investigation shall be kept in strictest confidence by the commissioner, the division, the licensee, any complainant and all other persons, unless and until the commissioner suspends or revokes the license certificate of the licensee involved or fines the licensee: Provided, That the commissioner may advise the motor vehicle dealers advisory board of pending actions and may disclose to the motor vehicle dealers advisory board any information that enables it to perform its advisory function in imposing penalties. The commissioner may suspend or revoke a license certificate, suspend a special dealer plate or plates, impose a fine or take any combination of these actions if the commissioner finds that the licensee:
                       (1) Has failed or refused to comply with the laws of this state relating to the registration and titling of vehicles and the giving of notices of transfers, the provisions and requirements of this article, or any reasonable rules authorized in section nine, article two of this chapter and promulgated to implement the provisions of this article by the commissioner in accordance with the provisions of article three, chapter twenty-nine-a of this code;
                       (2) Has given any check in the payment of any fee required under the provisions of this chapter which is dishonored;
                       (3) In the case of a dealer, has knowingly made or permitted any unlawful use of any dealer special plate or plates issued to him or her;
                       (4) In the case of a dealer, has a dealer special plate or plates to which he or she is not lawfully entitled;
                       (5) Has knowingly made false statement of a material fact in his or her application for the license certificate then issued and outstanding;
                       (6) Has habitually defaulted on financial obligations;
                       (7) Does not have and maintain at each place of business, (subject to the qualification contained in subdivision (17), subsection (a), section one of this article with respect to a new motor vehicle dealer) an established place of business as defined for the business in question in section one of this article;
                       (8) Has been guilty of any fraudulent act in connection with the business of new motor vehicle dealer, used motor vehicle dealer, house trailer dealer, trailer dealer, motorcycle dealer, used parts dealer or wrecker or dismantler;
                       (9) Has defrauded or is attempting to defraud any buyer or any other person, to the damage of the buyer or other person, in the conduct of the licensee's business;
                       (10) Has defrauded or is attempting to defraud the state or any political subdivision of the state of any taxes or fees in connection with the sale or transfer of any vehicle;
                       (11) Has committed fraud in the registration of a vehicle;                        (12) Has knowingly purchased, sold or otherwise dealt in a stolen vehicle or vehicles;
                       (13) Has advertised by any means, with intent to defraud, any material representation or statement of fact which is untrue, misleading or deceptive in any particular relating to the conduct of the licensed business;
                       (14) Has willfully failed or refused to perform any legally binding written agreement with any buyer;
                       (15) Has made a fraudulent sale or purchase;
                       (16) Has failed or refused to assign, reassign or transfer a proper certificate of title;
                       (17) Has a license certificate to which he or she is not lawfully entitled;
                       (18) Has misrepresented a customer's credit or financial status to obtain financing; or
                       (19) Has failed to reimburse, when ordered, any claim against the dealer recovery fund as prescribed in section two-a of this article.
                       The commissioner shall also suspend or revoke the license certificate of a licensee if he or she finds the existence of any ground upon which the license certificate could have been refused or any ground which would be cause for refusing a license certificate to the licensee were he or she then applying for the license certificate.
                       (b) Whenever a licensee fails or refuses to keep the bond, unless exempt from the requirement pursuant to section two-a of this article or liability insurance required by section four of this article, in full force and effect, or fails to provide evidence of the bond or liability insurance, the commissioner shall automatically suspend the license certificate of the licensee unless and until a bond or certificate of insurance as required by section four of this article is furnished to the commissioner. When the licensee furnishes the bond or certificate of insurance to the commissioner and pays all reinstatement fees, the commissioner shall vacate the suspension.
                       (c) Suspensions under this section shall continue until the cause for the suspension has been eliminated or corrected. Revocation of a license certificate shall not preclude application for a new license certificate. The commissioner shall process the application for a new license certificate in the same manner and issue or refuse to issue the license certificate on the same grounds as any other application for a license certificate is processed, considered and passed upon, except that the commissioner may give any previous suspension and the revocation such weight in deciding whether to issue or refuse the license certificate as is correct and proper under all of the circumstances.
                       On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
                       Engrossed Committee Substitute for Senate Bill No. 505, as amended by the House of Delegates, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 505) passed with its title.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                       A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect July 1, 2004, and requested the concurrence of the Senate in the House of Delegates amendments, as to
                       Eng. Com. Sub. for Senate Bill No. 508, Relating to commission on arts.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendments to the bill were reported by the Clerk:
                       On page two, section three, lines twelve and thirteen, by striking out the words "five voting members may be from the same congressional district" and inserting in lieu thereof the words "three voting members may be from the same regional educational service agency district created in section twenty-six, article two, chapter eighteen of this code";
                       On page five, section three, line seventy-one, after the word "improvements" by inserting a comma and the words "preservation, and operations of cultural facilities: Provided, That the commission on the arts may use no more than twenty-five percent of the funding for operations of cultural facilities";
                       And,
                       On page five, section three, line seventy-two, after the word "Provided," by inserting the word "however,".
                       On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                       Engrossed Committee Substitute for Senate Bill No. 508, as amended by the House of Delegates, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 508) passed with its title.
                       Senator Chafin moved that the bill take effect July 1, 2004.
                       On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 508) takes effect July 1, 2004.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                       A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
                       Eng. Com. Sub. for Senate Bill No. 533, Authorizing division of corrections charge certain adult offenders transfer application fee.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendment to the bill was reported by the Clerk:
                       On page two, section four, line one, by striking out the word "The" and inserting in lieu thereof the words "On and after the first day of July, two thousand four, the".
                       On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
                       Engrossed Committee Substitute for Senate Bill No. 533, as amended by the House of Delegates, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 533) passed with its title.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                       A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
                       Eng. Senate Bill No. 636, Relating to employment of members of teachers defined benefit retirement system.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendments to the bill were reported by the Clerk:
                       On
page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
                       That §18-7A-13a and §18-7A-17 of the code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.

§18-7A-13a. Resumption of service by retired teachers.
                       
(a) For the purpose of this section, reemployment of a former or retired teacher as a teacher shall in no way impair such that teacher's eligibility for a prior service pension or any other benefit provided by this article.
                       (b) Retired teachers, who qualified for an annuity because of age or service, may not receive prior service allowance from the retirement board when employed as a teacher and when regularly employed by the state of West Virginia. The payment of such the allowance shall be discontinued on the first day of the month within which such employment begins and shall be resumed on the first day of the month succeeding the month within which such employment ceases. The annuity paid any such the teacher on first retirement resulting from the teachers' accumulation fund and the employers' accumulation fund shall continue throughout the governmental service and thereafter according to the option selected by the teacher upon first retirement.
                       (c) Retired teachers, who qualified for an annuity because of disability, shall receive no further retirement payments if the retirement board finds that the disability of the teacher no longer exists; payment shall be discontinued on the first day of the month within which such the finding is made. If such the retired teacher returns to service as a teacher, he or she shall contribute to the teachers' accumulation fund as a member of the system. His or her prior service eligibility, if any, shall not be impaired because of his or her disability retirement. His or her accumulated contributions and interest which were transferred to the benefit fund upon his or her retirement shall be returned to his or her individual account in the teachers' accumulation fund, minus retirement payments received which were not supported by such the contributions and interest. Upon subsequent retirement, he or she shall receive credit for all of his or her contributory experience, anything to the contrary in this article notwithstanding.
_______________________(d) Notwithstanding any provision of this code to the contrary, a person who retires under the system provided by this article may subsequently become employed on either a full-time, part-time basis or contract basis by any institution of higher education. Any such employment after the effective date of the enactment of this section in two thousand four shall be without any loss of retirement annuity or retirement benefits if the person's retirement commences between the effective date of the enactment of this section in two thousand two first day of January, one thousand nine hundred ninety-five, and the thirty-first day of December, two thousand two three: Provided, That such the person shall not be eligible to participate in any other state retirement system provided by this code.
 
                       
(e) The retirement board is herewith authorized to require of the retired teachers and their employers such reports as it deems considers necessary to effectuate the provisions of this section.
§18-7A-17. Statement and computation of teachers' service; qualified military service.

                       (a) Under rules adopted by the retirement board, each teacher shall file a detailed statement of his or her length of service as a teacher for which he or she claims credit. The retirement board shall determine what part of a year is the equivalent of a year of service. In computing the service, however, it shall credit no period of more than a month's duration during which a member was absent without pay, nor shall it credit for more than one year of service performed in any calendar year.
                       (b) For the purpose of this article, the retirement board shall grant prior service credit to new entrants and other members of the retirement system for service in any of the armed forces of the United States in any period of national emergency within which a federal Selective Service Act was in effect. For purposes of this section, "armed forces" includes women's army corps, women's appointed volunteers for emergency service, army nurse corps, spars, women's reserve and other similar units officially parts of the military service of the United States. The military service is considered equivalent to public school teaching, and the salary equivalent for each year of that service is the actual salary of the member as a teacher for his or her first year of teaching after discharge from military service. Prior service credit for military service shall not exceed ten years for any one member, nor shall it exceed twenty-five percent of total service at the time of retirement. Notwithstanding the preceding provisions of this subsection, contributions, benefits and service credit with respect to qualified military service shall be provided in accordance with Section 414(u) of the Internal Revenue Code. For purposes of this section, "qualified military service" has the same meaning as in Section 414(u) of the Internal Revenue Code. The retirement board is authorized to determine all questions and make all decisions relating to this section and, pursuant to the authority granted to the retirement board in section one, article ten-d, chapter five of this code, may promulgate rules relating to contributions, benefits and service credit to comply with Section 414(u) of the Internal Revenue Code.
                       (c) For service as a teacher in the employment of the federal government, or a state or territory of the United States, or a governmental subdivision of that state or territory, the retirement board shall grant credit to the member: Provided, That the member shall pay to the system double the amount he or she contributed during the first full year of current employment, times the number of years for which credit is granted, plus interest at a rate to be determined by the retirement board. The interest shall be deposited in the reserve fund and service credit granted at the time of retirement shall not exceed the lesser of ten years or fifty percent of the member's total service as a teacher in West Virginia. Any transfer of out-of-state service, as provided in this article, shall not be used to establish eligibility for a retirement allowance and the retirement board shall grant credit for the transferred service as additional service only: Provided, however, That a transfer of out-of-state service is prohibited if the service is used to obtain a retirement benefit from another retirement system: Provided further, That salaries paid to members for service prior to entrance into the retirement system shall not be used to compute the average final salary of the member under the retirement system.
                       (d) Service credit for members or retired members shall not be denied on the basis of minimum income rules promulgated by the teachers retirement board: Provided, That the member or retired member shall pay to the system the amount he or she would have contributed during the year or years of public school service for which credit was denied as a result of the minimum income rules of the teachers retirement board.
                       (e) No members shall be considered absent from service while serving as a member or employee of the Legislature of the state of West Virginia during any duly constituted session of that body or while serving as an elected member of a county commission during any duly constituted session of that body.
                       (f) No member shall be considered absent from service as a teacher while serving as an officer with a statewide professional teaching association, or who has served in that capacity, and no retired teacher, who served in that capacity while a member, shall be considered to have been absent from service as a teacher by reason of that service: Provided, That the period of service credit granted for that service shall not exceed ten years: Provided, however, That a member or retired teacher who is serving or has served as an officer of a statewide professional teaching association shall make deposits to the teachers retirement board, for the time of any absence, in an amount double the amount which he or she would have contributed in his or her regular assignment for a like period of time.
                       (g) The teachers retirement board shall grant service credit to any former or present member of the West Virginia public employees retirement system who has been a contributing member for more than three years for service previously credited by the public employees retirement system and: (1) Shall require the transfer of the member's contributions to the teachers retirement system; or (2) shall require a repayment of the amount withdrawn any time prior to the member's retirement: Provided, That there shall be added by the member to the amounts transferred or repaid under this subsection an amount which shall be sufficient to equal the contributions he or she would have made had the member been under the teachers retirement system during the period of his or her membership in the public employees retirement system plus interest at a rate to be determined by the board compounded annually from the date of withdrawal to the date of payment. The interest paid shall be deposited in the reserve fund.
                       (h) For service as a teacher in an elementary or secondary parochial school, located within this state and fully accredited by the West Virginia department of education, the retirement board shall grant credit to the member: Provided, That the member shall pay to the system double the amount contributed during the first full year of current employment, times the number of years for which credit is granted, plus interest at a rate to be determined by the retirement board. The interest shall be deposited in the reserve fund and service granted at the time of retirement shall not exceed the lesser of ten years or fifty percent of the member's total service as a teacher in the West Virginia public school system. Any transfer of parochial school service, as provided in this section, may not be used to establish eligibility for a retirement allowance and the board shall grant credit for the transfer as additional service only: Provided, however, That a transfer of parochial school service is prohibited if the service is used to obtain a retirement benefit from another retirement system.
                       (i) Active members who previously worked in CETA (Comprehensive Employment and Training Act) may receive service credit for time served in that capacity: Provided, That in order to receive service credit under the provisions of this subsection the following conditions must be met: (1) The member must have moved from temporary employment with the participating employer to permanent full-time employment with the participating employer within one hundred twenty days following the termination of the member's CETA employment; (2) the board must receive evidence that establishes to a reasonable degree of certainty as determined by the board that the member previously worked in CETA; and (3) the member shall pay to the board an amount equal to the employer and employee contribution plus interest at the amount set by the board for the amount of service credit sought pursuant to this subsection: Provided, however, That the maximum service credit that may be obtained under the provisions of this subsection is two years: Provided further, That a member must apply and pay for the service credit allowed under this subsection and provide all necessary documentation by the thirty-first day of March, two thousand three: And provided further, That the board shall exercise due diligence to notify affected employees of the provisions of this subsection.
                       (j) If a member is not eligible for prior service credit or pension as provided in this article, then his or her prior service shall not be considered a part of his or her total service.
                       (k) A member who withdrew from membership may regain his or her former membership rights as specified in section thirteen of this article only in case he or she has served two years since his or her last withdrawal.
                       (l) Subject to the provisions of subsections (a) through (l), inclusive, of this section, the board shall verify as soon as practicable the statements of service submitted. The retirement board shall issue prior service certificates to all persons eligible for the certificates under the provisions of this article. The certificates shall state the length of the prior service credit, but in no case shall the prior service credit exceed forty years.
                       (m) Notwithstanding any provision of this article to the contrary, when a member is or has been elected to serve as a member of the Legislature, and the proper discharge of his or her duties of public office require that member to be absent from his or her teaching or administrative duties, the time served in discharge of his or her duties of the legislative office are credited as time served for purposes of computing service credit: Provided, That the board may not require any additional contributions from that member in order for the board to credit him or her with the contributing service credit earned while discharging official legislative duties: Provided, however, That nothing herein may be construed to relieve the employer from making the employer contribution at the member's regular salary rate or rate of pay from that employer on the contributing service credit earned while the member is discharging his or her official legislative duties. These employer payments shall commence as of the first day of June, two thousand: Provided further, That any member to which the provisions of this subsection apply may elect to pay to the board an amount equal to what his or her contribution would have been and, for service after the effective date of the amendment of this section in two thousand four, may also elect to pay in addition both the employer and employee share for legislative compensation for those periods of time he or she was serving in the Legislature. The periods of time upon which the member paid his or her contribution and, if applicable, the compensation for which he or she paid both the employer and employee share, shall then be included for purposes of determining his or her final average salary as well as for determining years of service: And provided further, That a member utilizing the provisions of this subsection is not required to pay interest on any contributions he or she may decide to make.
                       (n) The teachers retirement board shall grant service credit to any former member of the state police death, disability and retirement system who has been a contributing member for more than three years, for service previously credited by the state police death, disability and retirement system; and: (1) Shall require the transfer of the member's contributions to the teachers retirement system; or (2) shall require a repayment of the amount withdrawn any time prior to the member's retirement: Provided, That the member shall add to the amounts transferred or repaid under this paragraph an amount which is sufficient to equal the contributions he or she would have made had the member been under the teachers retirement system during the period of his or her membership in the state police death, disability and retirement system plus interest at a rate of six percent compounded annually from the date of withdrawal to the date of payment. The interest paid shall be deposited in the reserve fund.;
                       And,
                       On page one, by striking out the title and substituting therefor a new title, to read as follows:
                       Eng. Senate Bill No. 636--A Bill to amend and reenact §18-7A- 13a and §18-7A-17 of the code of West Virginia, 1931, as amended, all relating to employment of members of the teachers defined benefit retirement system by institutions of higher education following the retirement of the member; and including certain compensation of certain members in determination of benefits if certain conditions are met.
                       On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                       Engrossed Senate Bill No. 636, as amended by the House of Delegates, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 636) passed with its House of Delegates amended title.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                       A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendments, as to
                       Eng. Senate Bill No. 717, Terminating agencies following full performance evaluations.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendments to the bill were reported by the Clerk:
                       On page three, section four, line twenty, after the word "resources;" by inserting the words "department of environmental protection;";
                       On page six, section five, line forty-three, by striking out the words "racing commission;";
                       On page six, section five, lines forty-four and forty-five, by striking out the words "environmental quality board;";
                       And,
                       On page eight, section five, line eighty-eight, after the word "board;" by inserting the words "state rail authority;".
                       On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                       Engrossed Senate Bill No. 717, as amended by the House of Delegates, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 717) passed with its title.
                       Senator Chafin moved that the bill take effect from passage.
                       On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 717) takes effect from passage.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence in the changed effective date.
                       A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
                       Eng. Senate Bill No. 719, Increasing tax on providers of nursing facility services.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendments to the bill were reported by the Clerk:
                       On
page four, after section eleven, by adding a new section, designated section thirty-seven, to read as follows:
§11-27-37. Contingent increase in rates of certain health care provider taxes.

                       (a) Increase in rates of certain provider taxes. -- Notwithstanding any provision of this code to the contrary:
                       (1) The rate of the tax imposed by section four of this article on providers of ambulatory surgical centers shall be two and thirty-six hundredths percent of the gross receipts received or receivable by providers on and after the first day of the calendar month as provided in subsection (b) of this section;
                       (2) The rate of the tax imposed by section nine of this article on providers of inpatient hospital services shall be three and thirty-eight hundredths percent of the gross receipts received or receivable by providers on and after the first day of the calendar month as provided in subsection (b) of this section;
                       (3) The rate of tax imposed by section ten of this article on providers of intermediate care facility services shall be five and ninety-five hundredths percent of the gross receipts received or receivable by providers on and after the first day of the calendar month as provided in subsection (b) of this section; and
                       (4) The rate of the tax imposed by section fifteen of this article on providers of outpatient hospital services shall be three and thirty-eight hundredths percent of the gross receipts received or receivable by providers on and after the first day of the calendar month as provided in subsection (b) of this section.
                       (b) Effective date. -- This section shall take effect as provided in section thirty,
article VI of the constitution of this state: Provided, That this section does not apply to any taxpayer unless and until all of the following have occurred: (1) The governor makes a determination that both estimated general revenue fund collections and the funds available to fund this state's medicaid program as set forth in the annual budget bill enacted by the Legislature will both be less in the next fiscal year than those funds are estimated to be in the current fiscal year, with this decrease being a result of changes, or anticipated changes, in the medicaid program at the federal level or a result of federal administrative actions with respect to this state's medicaid program; (2) the governor notifies the president of the Senate and the speaker of the House of Delegates of this determination; (3) the governor issues an executive order convening a panel to study and examine possible alternative means of addressing and resolving the anticipated medicaid program budget shortfall, which panel shall include, but may not be limited to, one or more representatives of each group of providers upon which the provider tax increases contemplated by this section may be imposed; (4) this panel is afforded not less than seventy-five days in which to conduct its study and provide a report and recommendations to the governor, the president of the Senate and the speaker of the House of Delegates; and (5) the Legislature adopts a resolution authorizing imposition of the rate increases described in this section. If, and only if, no other solution than the tax increase set forth herein is implemented by either administrative or legislative action in response to the report and recommendations of the study panel to the anticipated medicaid budget shortfall, and upon adoption of a resolution of the Legislature, the provisions of this section shall become effective on the date specified by the Legislature in the resolution.;
                       On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
                       That §11-27-11 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §11-27-37,
all to read as follows:;
                       And,
                       On page one, by striking out the title and substituting therefor a new title, to read as follows:
                       Eng. Senate Bill No. 719--A Bill to
amend and reenact §11-27-11 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §11-27-37, all relating to increasing the health care provider tax imposed on gross receipts of providers of nursing facility services and establishing a contingent provider tax increase if certain conditions occur; specifying condition precedent to tax increase; study panel; and setting forth effective date.
                       On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
                       Engrossed Senate Bill No. 719, as amended by the House of Delegates, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick, Hunter, Kessler, Love, McCabe, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Sprouse, White and Tomblin (Mr. President)--27.
                       The nays were: Harrison, Jenkins, McKenzie, Smith, Unger and Weeks--6.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 719) passed with its House of Delegates amended title.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                       A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment, as amended by the House of Delegates, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment to the Senate amendment, as to
                       Eng. Com. Sub. for House Bill No. 2200, Creating the felony offense of destruction of property.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendment to the Senate amendment to the bill was reported by the Clerk:
                       On
page one, by striking out everything after the article heading and inserting in lieu thereof the following:
§61-3-30. Removal, injury to or destruction of property, monuments designating land boundaries and of certain no trespassing signs; penalties.

                       
(a) If any person unlawfully, but not feloniously, take and carry away, or destroy, injure or deface takes and carries away, or destroys, injures or defaces any property, real or personal, not his own of another, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than five hundred dollars, or imprisoned confined in the county or regional jail not more than one year, or both fined and imprisoned.
                       (b) Any person who unlawfully, willfully and intentionally destroys, injures or defaces the real or personal property of one or more other persons or entities during the same act, series of acts or course of conduct causing a loss in the value of the property in an amount of two thousand five hundred dollars or more is guilty of the felony offense of destruction of property and, upon conviction thereof, shall be fined not more than two thousand five hundred dollars or imprisoned in the state correctional facility for not less than one year nor more than ten years or, in the discretion of the court, confined in the county or regional jail not more than one year, or both fined and imprisoned.
_______________________
(c) If any person shall break down, destroy, injure, deface or remove breaks down, destroys, injures, defaces or removes any monument erected for the purpose of designating the boundaries of a municipality, tract or lot of land, or any tree marked for that purpose, or any sign or notice upon private property designating no trespassing upon such the property, except signs or notices posted in accordance with the provisions and purposes of sections seven, eight and ten, article two, chapter twenty of this code, he shall be or she is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than twenty dollars nor more than two hundred dollars, or imprisoned confined in the county or regional jail not less than one nor more than six months, or both fined and imprisoned. Justices of the peace and magistrates shall Magistrates have concurrent jurisdiction of all offenses arising under the provisions of this section. The provisions of this paragraph shall do not apply to the owner, or his or her agent, of the lands on which such signs or notices are posted.
                       On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendment to the bill.
                       Engrossed Committee Substitute for House Bill No. 2200, as amended, was then put upon its passage.
                       On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
                       The nays were: None.
                       Absent: Bailey--1.
                       So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 2200) passed with its title.
                       Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
                       A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments to the Senate amendments, as to
                       Eng. Com. Sub. for House Bill No. 4004, Establishing an insurance fraud unit within the office of the insurance commissioner.
                       On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
                       The following House of Delegates amendments to the Senate amendments to the bill were reported by the Clerk:
                       On page one, by striking out everything after the article heading and inserting in lieu thereof the following:
§33-2-15b. Reports to the Legislature.
                       (a) By the first day of February, two thousand five, the commissioner shall submit to the Legislature a report
on third- party causes of action;
                       (b) The report shall contain the following information:
                       (1) The legal history of the creation of a third-party causes of action brought pursuant to unfair trade practices act
as codified in article eleven of this chapter;
                       (2) An analysis of the impact of third-party causes of action upon insurance rates and the availability of insurance in this state
;
                       (3)
A summary of the types of data which the commissioner utilized in preparing the analysis: Provided, That the commissioner will not disclose information which is otherwise confidential: Provided, however, That if the commissioner is unable to obtain data which he or she considers necessary to preparing a full analysis, the commissioner shall state in the report:
                       (A) The reasons that he or she was not able to obtain the data;
                       (B) Recommendations or proposed legislation for facilitating the collection of necessary data and protecting proprietary information;
                       (4) Information on what other states have this cause of action;
                       (5) Based upon the findings of the commissioner, and if the findings so suggest, proposed legislation to address any reforms needed for third-party claims under the unfair trade practices act;
                       (c) For purpose of preparing the report, the commissioner may request from companies authorized to conduct business in this state any information that he or she believes is necessary to determine the economic effect of third-party lawsuits on insurance premiums. The companies shall not be required to provide the information. Any information which the company agrees to provide shall be considered confidential by law and privileged, is exempt from disclosure pursuant to chapter twenty-nine-b of this code, is not open to public inspection, is not subject to subpoena and is not subject to discovery or admissible in evidence in any criminal, private civil or administrative action and is not subject to production pursuant to court order. Notwithstanding any other provisions in this section, while the commissioner is to provide his or her general conclusions based upon the review of the data, the commissioner is not to disclose the information in a manner so as to violate the confidentiality provisions of this section.

§33-2-15c. Reports to the Legislature.
                       (a) By the first day of February, two thousand five, the commissioner shall submit to the Legislature a report
relating to the office of the consumer advocate.
                       (b) The report shall contain the following information:

                       (1) An overview of the function of the office of the consumer advocate and how the office addresses consumer complaints;
                       (2) The number of staff in the office of the consumer advocate and the structure of the existing office;
                       (3) Statistics reflecting the number of consumer complaints and types handled by the office from the first day of January, two thousand one, until the first day of January, two thousand four;
                       (4) The number of states which have consumer advocates and the lines of insurance for which the advocates are authorized to act on behalf of consumers;
                       (5) The recommendation of the commissioner in regard to whether this state would benefit by having the role of the consumer advocate expanded to other lines of insurance;
                       (6) Based upon the findings and recommendations of the commissioner, and if the findings so suggest,
proposed legislation for expanding the office of the consumer advocate to other lines of insurance.
ARTICLE 2. INSURANCE COMMISSIONER.
§33-2-20. Authority of commission to allow withdrawal of insurance carriers from doing business in the state.

          (a) Notwithstanding any provision of the code to the contrary, the commissioner may, consistent with the provisions of this section, authorize an insurer to withdraw from the line of automobile liability insurance for personal, private passenger automobiles covered by article six-a of this chapter or from doing business entirely in this state if:
          (1) The insurer has submitted and received approval from the commissioner of a withdrawal plan; and
          (2) The insurer demonstrates to the satisfaction of the commissioner that allowing the insurer to withdraw would be in the best interest of the insurer, its policyholders and the citizens of this state.
          (b) Any insurer that elects to nonrenew or cancel the particular type or line of insurance coverage provided for by section five, article seventeen-a of this chapter shall submit to the insurance commissioner a withdrawal plan for informational purposes only prior to cancellation or nonrenewal of all its business in this state.
          (c) The commissioner shall promulgate rules pursuant to chapter twenty-nine-a of this code setting forth the criteria for withdrawal plans.
ARTICLE 6A. CANCELLATION OR NONRENEWAL OF AUTOMOBILE LIABILITY POLICIES.

§33-6A-4. Advance notice of nonrenewal required; assigned risk policies; reasons for nonrenewal; hearing and review after nonrenewal.

     
(a) No insurer shall fail to renew an outstanding automobile liability or physical damage insurance policy unless such the nonrenewal is preceded by at least forty-five days' advance notice to the named insured of such the insurer's election not to renew such the policy: Provided, That subject to this section, nothing contained in this article shall be construed so as to prevent an insurer from refusing to issue an automobile liability or physical damage insurance policy upon application to such the insurer, nor shall any provision of this article be construed to prevent an insurer from refusing to renew such a policy upon expiration, except as to the notice requirements of this section, and except further as to those applicants lawfully submitted pursuant to the West Virginia assigned risk plan. Provided, however, That an
_____(b) An insurer may not fail to renew an outstanding automobile liability or physical damage insurance policy which has been in existence for two consecutive years or longer except for the following reasons:
     (a) (1) The named insured fails to make payments of premium for such the policy or any installment of the premium when due;
     (b) (2) The policy is obtained through material misrepresentation;
     (c) (3) The insured violates any of the material terms and conditions of the policy;
     (d) (4) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such the policy:
     (1) (A) Has had his or her operator's license suspended or revoked during the policy period; or
     (2) (B) Is or becomes subject to epilepsy or heart attacks, a physical or mental condition that prevents the insured from operating a motor vehicle, and such the individual cannot produce a certificate from a physician testifying to his or her ability to operate a motor vehicle;
     (e) (5) The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under such the policy, is convicted of or forfeits bail during the policy period for any of the following reasons:
     (1) (A) Any felony or assault involving the use of a motor vehicle;
     (2) (B) Negligent homicide arising out of the operation of a motor vehicle;
     (3) (C) Operating a motor vehicle while under the influence of intoxicating liquor or of any narcotic drug;
     (4) (D) Leaving the scene of a motor vehicle accident in which the insured is involved without reporting it as required by law;
     (5) (E) Theft of a motor vehicle or the unlawful taking of a motor vehicle; or
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(6) (F) Making false statements in an application for a motor vehicle operator's license;
     (7) (6) Two The named insured or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy, is convicted of or forfeits bail during the policy period for two or more moving traffic violations committed within a period of twelve months, each of which results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all such of the violations: Provided, That an insurer that makes an election pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section, may nonrenew an automobile liability or physical damage insurance policy if the named insured, or any other operator, either residing in the same household or who customarily operates an automobile insured under the policy is convicted of or forfeits bail during the policy period for two or more moving traffic violations committed within a period of twenty- four months, each of which occurs on or after the first day of July, two thousand four, and after the date that the insurer makes an election pursuant to section four-b of this article, and results in three or more points being assessed on the driver's record by the division of motor vehicles, whether or not the insurer renewed the policy without knowledge of all of the violations. Notice of any nonrenewal made pursuant to this subsection subdivision shall be mailed to the named insured either during the current policy period or during the first full policy period following the date that the second moving traffic violation is recorded by the division of motor vehicles;
     (f) (7) The named insured or any other operator either residing in the same household or who customarily operates an automobile insured under the policy has had a second at-fault motor vehicle accident within a period of twelve months, whether or not the insurer renewed the policy without knowledge of all such of the accidents: Provided, That an insurer that makes an election pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section, may nonrenew an automobile liability or physical damage insurance policy under this subsection if the named insured or any other operator either residing in the same household or who customarily operates an automobile insured under such policy has had two at-fault motor vehicle accidents within a period of thirty-six months, each of which occurs after the first day of July, two thousand four, and after the date that the insurer makes an election pursuant to section four-b of this article, and results in a claim paid by the insurer for each accident, whether or not the insurer renewed the policy without knowledge of all of the accidents. Notice of any nonrenewal made pursuant to this subsection shall be mailed to the named insured either during the current policy period or during the first full policy period following the date of the second accident; or
     (8) The insurer ceases writing automobile liability or physical damage insurance policies throughout the state after submission to and approval by the commissioner of a withdrawal plan or discontinues operations within the state pursuant to a withdrawal plan approved by the commissioner.
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(c) An insurer that makes an election pursuant to section four-b of this article to issue all nonrenewal notices pursuant to this section shall not fail to renew an automobile liability or physical damage insurance policy when an operator other than the named insured has violated the provisions of subdivision (6) or (7), subsection (b) of this section, if the named insured, by restrictive endorsement, specifically excludes the operator who violated the provision. An insurer issuing a nonrenewal notice informing the named insured that the policy will be nonrenewed for the reason that an operator has violated the provisions of subdivision (6) or (7), subsection (b) of this section shall, at that time, inform the named insured of his or her option to specifically exclude the operator by restrictive endorsement and shall further inform the named insured that, upon obtaining the restrictive endorsement, the insurer will renew the policy or rescind the nonrenewal absent the existence of any other basis for nonrenewal set forth in this section.
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(d) Nonrenewal A notice provided under this section shall state the specific reason or reasons for nonrenewal and shall advise the named insured that nonrenewal of such the policy for any reason is subject to a hearing and review as provided for in section five of this article. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice must also advise the insured of possible eligibility for insurance through the West Virginia assigned risk plan.
_____(e)
Notwithstanding the provisions of subsection (a) of this section, the insurer shall renew reinstate any automobile liability or physical damage insurance policy that has not been renewed due to the insured's failure to pay the renewal premium when due if:
     (1) None of the other grounds for nonrenewal as set forth in subsections through (f), inclusive, of this section exist; and
     (2) the The insured makes an application for renewal reinstatement within ninety forty-five days of the original expiration date of the policy. If a policy is renewed reinstated as provided for in this paragraph, then the coverage afforded shall not be retroactive to the original expiration date of the policy but: Provided, That such policy shall begin be effective on the reinstatement date at the current premium levels offered by the company and shall not be afforded the protections of this section relating to renewal of an outstanding automobile liability or physical damage insurance policy that has been in existence for at least two consecutive years.
§33-6A-4a. Alternative method for nonrenewal for automobile liability and physical damage insurance.

     (a) On or after the first day of July, two thousand four, an insurer may nonrenew an automobile liability or physical damage insurance policy for any reason which is consistent with its underwriting standards.
     (b) Notwithstanding any other provisions in this section, race, religion, nationality, ethnic group, age, sex, marital status or other reason prohibited by the provisions of this chapter may not be considered as a reason for nonrenewal;
     (c) Notwithstanding the provisions of section four of this article, a nonrenewal may only be issued pursuant to the provisions of this section upon forty-five days' advance notice to the named insured of the insurer's election not to renew the policy.
     (d) The total number of nonrenewal notices issued each year, commencing on the first day of July, two thousand four, by the insurer, resulting in nonrenewal, pursuant to this section may not exceed one percent per year of the total number of the policies of the insurer in force at the end of the previous calendar year in this state: Provided, That the total number of nonrenewal notices issued each year to insureds within any given county in this state resulting in nonrenewal may not exceed one percent per year of the total number of the policies of the insurer in force in that county at the end of the previous calendar year: Provided, however, That an insurer may nonrenew one policy per year in any county if the applicable percentage limitation results in less than one policy.
     (e) A notice issued pursuant to this section shall state the specific reason or reasons for refusal to renew and shall advise the named insured that nonrenewal of the policy for any reason is subject to a hearing and review as provided for in section five of this article: Provided, That the hearing shall relate to whether the nonrenewal of the policy was issued for a discriminatory reason, was based upon inadequate notice, an underwriting standard by the commissioner found to be in violation of this chapter or causes the insurer to exceed the percentage limitations, or percentage limitations by county, of nonrenewal notices set forth in this section. Cost of the hearing shall be assessed against the losing party but shall not exceed seventy-five dollars. The notice shall also advise the insured of possible eligibility for insurance through the West Virginia assigned risk plan.
     (f) Each insurer licensed to write automobile liability and physical damage insurance policies in this state shall file with the commissioner a copy of its underwriting standards, including any amendments or supplements. The commissioner shall review and examine the underwriting standards to ensure that they are consistent with generally accepted underwriting principles. The underwriting standards filed with the commissioner shall
be considered confidential by law and privileged, are exempt from disclosure pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to subpoena, and are not subject to discovery or admissible in evidence in any criminal, private civil or administrative action and are not subject to production pursuant to court order. The commissioner shall promulgate legislative rules pursuant to chapter twenty-nine-a of this code to implement the provisions of this section.
     (g) Each insurer that has elected to issue nonrenewal notices pursuant to the percentage limitations provided in this section shall report to the commissioner, on a form prescribed by the commissioner, on or before the thirtieth day of September of each year the total number of nonrenewal notices issued in this state and in each county of this state for the preceding year. The insurer shall also report to the commissioner the specific reason or reasons for the nonrenewals by county which have been issued pursuant to this section.
§33-6A-4b. Manner of making election relating to nonrenewals.
     (a) Each insurer licensed to write automobile liability or physical damage insurance policies in this state, as of the first day of July, two thousand four, may elect to issue all nonrenewal notices either pursuant to section four or four-a of this article. Each insurer may notify the commissioner of its election any time after the first day of July, two thousand four, and shall remain bound by the election for a period of five years. For each subsequent five-year period each insurer shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or four-a of this article.
     (1) If no election is made by the first day of July, two thousand four, then, until the first day of July, two thousand five, the insurer shall continue to issue all nonrenewal notices pursuant to the existing nonrenewal provisions in section four prior to the amendments enacted therein by the acts of the seventy- sixth Legislature during the second session, two thousand four.
     (2) As of the first day of July, two thousand five,
each insurer licensed to write automobile liability or physical damage insurance policies in this state, and that has not previously made an election under this section, shall elect to issue all nonrenewal notices either pursuant to section four or four-a of this article. Each insurer which has not previously made an election must notify the commissioner of its election no later than the first day of July, two thousand five, and shall remain bound by the election for a period of five years. For each subsequent five-year period, each insurer shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or four-a of this article.
     (b) An insurer that is not licensed to write automobile liability or physical damage insurance policies in this state, as of the first day of July, two thousand four, but becomes licensed to write such policies after that date shall, no later than two years after the date the insurer becomes licensed to write such policies, make an election to issue all nonrenewal notices either pursuant to section four or four-a of this article and shall notify the commissioner of its election. If the insurer elects to issue all nonrenewal notices pursuant to section four-a of this article, the total number of nonrenewals may not exceed the percentage limitations set forth in said section. An insurer first becoming licensed to issue automobile liability and physical damage insurance policies in this state after the first day of July, two thousand four, shall be bound by its election for a period of five years, and for each subsequent five-year period shall notify the commissioner of its election to issue all nonrenewal notices either pursuant to section four or four-a of this article.
     (c) Notwithstanding any provision of this article to the contrary, a named insured by restrictive endorsement may specifically exclude from automobile liability or physical damage insurance policy an operator who has violated the provisions of subdivision (6) or (7), subsection (b), section four of this article.
§33-6A-4c. Report to the Legislature.
   (a) By the first day of January, two thousand nine, the commissioner shall submit a report to the Legislature. The report shall contain the following:
   (1) An analysis of the impact of legislation enacted during the two thousand four legislative session upon rates and insurance availability in the state;
   (2) Statistics reflecting the rate history of insurers conducting business in West Virginia from the first day of July, two thousand four, until the first day of July, two thousand eight.
ARTICLE 22. FARMERS' MUTUAL FIRE INSURANCE COMPANIES.
§33-22-2a. Applicability of insurance fraud prevention act.

   Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to farmers' mutual fire insurance companies. ARTICLE 23. FRATERNAL BENEFIT SOCIETIES.
§33-23-2a. Applicability of insurance fraud prevention act
.
   Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to fraternal benefit societies.
ARTICLE 24. HOSPITAL SERVICE CORPORATIONS, MEDICAL SERVICE CORPORATIONS, DENTAL SERVICE CORPORATIONS AND HEALTH SERVICE CORPORATIONS.

§33-24-4b. Applicability of insurance fraud prevention act.
   Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to hospital service corporations, medical service corporations, dental service corporations and health service corporations.
ARTICLE 25. HEALTH CARE CORPORATIONS.
§33-25-6a. Applicability of insurance fraud prevention act
.
   Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health care corporations.
ARTICLE 25A. HEALTH MAINTENANCE ORGANIZATION ACT.
§33-25A-24b. Applicability of insurance fraud prevention act.

   Notwithstanding any provision of this code to the contrary, article forty-one of this chapter is applicable to health maintenance organizations.
ARTICLE 41. INSURANCE FRAUD PREVENTION ACT.
§33-41-1
. Short title; legislative findings and purpose.
   (a) This article may be cited as the "West Virginia Insurance Fraud Prevention Act".
   (b) The Legislature finds that the business of insurance involves many transactions of numerous types that have potential for fraud and other illegal activities. This article is intended to permit use of the expertise of the commissioner to investigate and help prosecute insurance fraud and other crimes related to the business of insurance more effectively, and to assist and receive assistance from state, local and federal law-enforcement and regulatory agencies in enforcing laws prohibiting crimes relating to the business of insurance.
§33-41-2. Definitions.
   As used in this article:
   (1) "Benefits" mean money payments, goods, services or other thing of value paid in response to a claim filed with an insurer based upon a policy of insurance;
   (2) "Business of insurance" means the writing of insurance or the reinsuring of risks by an insurer, including acts necessary or incidental to writing insurance or reinsuring risks and the activities of persons who act as or are officers, directors, agents or employees of insurers, or who are other persons authorized to act on their behalf;
   (3) "Claim" means an application or request for payment or benefits provided under the terms of a policy of insurance;
   (4) "Commissioner" means the insurance commissioner of West Virginia or his or her designee;
   (5) "Health care provider" means a person, partnership, corporation, facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, pharmacist, podiatrist, chiropractor, physical therapist or psychologist;
   (6) "Insurance" means a contract or arrangement in which a person undertakes to:
   (A) Pay or indemnify another person as to loss from certain contingencies called "risks", including through reinsurance;
   (B) Pay or grant a specified amount or determinable benefit to another person in connection with ascertainable risk contingencies;
   (C) Pay an annuity to another person; or
   (D) Act as surety;
   (7) "Insurer" means a person entering into arrangements or contracts of insurance or reinsurance. Insurer includes, but is not limited to, any domestic or foreign stock company, mutual company, mutual protective association, farmers' mutual fire companies, fraternal benefit society, reciprocal or interinsurance exchange, nonprofit medical care corporation, nonprofit health care corporation, nonprofit hospital service association, nonprofit dental care corporation, health maintenance organization, captive insurance company, risk retention group or other insurer, regardless of the type of coverage written, benefits provided or guarantees made by each. A person is an insurer regardless of whether the person is acting in violation of laws requiring a certificate of authority or regardless of whether the person denies being an insurer;
   (8) "Person" means an individual, a corporation, a limited liability company, a partnership, an association, a joint stock company, a trust, trustees, an unincorporated organization or any similar business entity or any combination of the foregoing. "Person" also includes hospital service corporations, medical service corporations and dental service corporations as defined in article twenty-four of this chapter, health care corporations as defined in article twenty-five of this chapter or a health maintenance organization organized pursuant to article twenty-five- a of this chapter;
   (9) "Policy" means an individual or group policy, group certificate, contract or arrangement of insurance or reinsurance affecting the rights of a resident of this state or bearing a reasonable relation to this state, regardless of whether delivered or issued for delivery in this state;
   (10) "Reinsurance" means a contract, binder of coverage (including placement slip) or arrangement under which an insurer procures insurance for itself in another insurer as to all or part of an insurance risk of the originating insurer;
   (11) "Statement" means any written or oral representation made to any person, insurer or authorized agency. A statement includes, but is not limited to, any oral report or representation; any insurance application, policy, notice or statement; any proof of loss, bill of lading, receipt for payment, invoice, account, estimate of property damages or other evidence of loss, injury or expense; any bill for services, diagnosis, prescription, hospital or doctor record, X ray, test result or other evidence of treatment, services or expense; and any application, report, actuarial study, rate request or other document submitted or required to be submitted to any authorized agency. A statement also includes any written or oral representation recorded by electronic or other media; and
   (12) "Unit" means the insurance fraud unit established pursuant to the provisions of this article acting collectively or by its duly authorized representatives.
§33-41-3. Fraud warning authorized; statement required of nonadmitted insurers.

          (a) Claims forms and applications for insurance, regardless of the form of transmission, may contain the following warning or a substantially similar caveat:
          "Any person who knowingly presents a false or fraudulent claim for payment of a loss or benefit or knowingly presents false information in an application for insurance is guilty of a crime and may be subject to fines and confinement in prison."
          (b) The lack of a warning as authorized by the provisions of subsection (a) of this section does not constitute a defense in any prosecution for a fraudulent or illegal act nor shall it constitute the basis for any type of civil cause of action.
          (c) Policies issued by nonadmitted insurers pursuant to article twelve-c of this chapter shall contain a statement disclosing the status of the insurer to do business in the state where the policy is delivered or issued for delivery or the state where coverage is in force. The requirement of this subsection may be satisfied by a disclosure specifically required by section five, article twelve-c of this chapter; section nine, article thirty-two of this chapter; and section eighteen of said article.
§33-41-4. Authority of the commissioner; use of special assistant prosecutors.

          (a) The commissioner may investigate suspected criminal acts relating to the business of insurance as authorized by the provisions of this article.
          (b) If the prosecuting attorney of the county in which a criminal violation relating to the business of insurance occurs determines that his or her office is unable to take appropriate action, he or she may petition the appropriate circuit court for the appointment of a special prosecutor or special assistant prosecutor from the West Virginia prosecuting attorneys institute pursuant to the provisions of section six, article four, chapter seven of this code. Notwithstanding the provisions of said section, attorneys employed by the commissioner and assigned to the insurance fraud unit created by the provisions of section eight of this article may prosecute or assist in the prosecution of violations of the criminal laws of this state related to the business of insurance and may act as special prosecutors or special assistant prosecutors in those cases if assistance is sought by the prosecuting attorney or special prosecutor assigned by the institute to prosecute those matters.

          (c) Funds allocated for insurance fraud prevention may be dispersed by the commissioner, at his or her discretion, for the purpose of insurance fraud enforcement as authorized by the provisions of this code.
          (d) The insurance fraud unit authorized by the provisions of section eight of this article may assist federal law-enforcement agencies, the West Virginia state police, the state fire marshal, municipal police departments and the sheriffs of the counties in West Virginia in investigating crimes related to the business of insurance.
          (e) The commissioner may conduct public outreach, education and awareness programs on the costs of insurance fraud to the public.
§33-41-5. Reporting of insurance fraud or criminal offenses otherwise related to the business of insurance.

          (a) A person engaged in the business of insurance having knowledge or a reasonable belief that fraud or another crime related to the business of insurance is being, will be or has been committed shall provide to the commissioner the information required by, and in a manner prescribed by, the commissioner.
          (b) The commissioner may prescribe a reporting form to facilitate reporting of possible fraud or other offenses related to the business of insurance for use by persons other than those persons referred to in subsection (a) of this section.
§33-41-6. Immunity from liability.
          (a) There shall be no civil liability imposed on and no cause of action shall arise from a person's furnishing information concerning suspected or anticipated fraud relating to the business of insurance, if the information is provided to or received from:
          (1) The commissioner or the commissioner's employees, agents or representatives;
          (2) Federal, state or local law-enforcement or regulatory officials or their employees, agents or representatives;
          (3) A person involved in the prevention and detection of insurance fraud or that person's agents, employees or representatives; or
          (4) The national association of insurance commissioners or its employees, agents or representatives.
          (b) The provisions of subsection (a) of this section are not applicable to materially incorrect statements made maliciously or fraudulently by a person designated a mandated reporter pursuant to the provisions of subsection (a), section five of this article or made in reckless disregard to the truth or falsity of the statement by those not mandated to report. In an action brought against a person for filing a report or furnishing other information concerning an alleged insurance fraud, the party bringing the action shall plead with specificity any facts supporting the allegation that subsection (a) of this section does not apply because the person filing the report or furnishing the incorrect information did so maliciously in the case of a mandated reporter or in the case of a person not designated a mandated reporter, in reckless disregard for the truth or falsity of the statement.
          (c) Nothing in this article shall be construed to limit, abrogate or modify existing statutes or case law applicable to the duties or liabilities of insurers regarding bad faith or unfair trade practices.
          (d) This section does not abrogate or modify common law or statutory privileges or immunities.
§33-41-7. Confidentiality.
          (a) Documents, materials or other information in the possession or control of the office of the insurance commissioner that are provided pursuant to section six of this article or obtained by the commissioner in an investigation of alleged fraudulent acts related to the business of insurance shall be confidential by law and privileged, shall not be subject to the provisions of chapter twenty-nine-b of this code, shall not be open to public inspection, shall not be subject to subpoena and shall not be subject to discovery or admissible in evidence in any private civil action. 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. The commissioner may use the documents, materials or other information if they are required for evidence in criminal proceedings or other action by the state or federal government and in such context may be discoverable as ordered by a court of competent jurisdiction exercising its discretion.
          (b) Neither the commissioner nor any person who receives documents, materials or other information while acting under the authority of the commissioner may be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subsection (a) of this section except as ordered by a court of competent jurisdiction.
          (c) In order to assist in the performance of the commissioner's duties, the commissioner:
          (1) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subsection (a) of this section with other state, federal and international regulatory agencies, with the national association of insurance commissioners and its affiliates and subsidiaries, and with local, 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) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the national association of insurance commissioners and its affiliates and subsidiaries, and from regulatory and law-enforcement officers 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) May enter into agreements governing sharing and use of information including the furtherance of any regulatory or legal action brought as part of the recipient's official duties.
          (d) 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 (c) of this section.
          (e) Nothing in this section shall prohibit the commissioner from providing information to or receiving information from any local, state, federal or international law-enforcement authorities, including any prosecuting authority; or from complying with subpoenas or other lawful process in criminal actions; or as may otherwise be provided in this article.
          (f) Nothing in this article may be construed to abrogate or limit the attorney-client or work product privileges existing at common law or established by statute or court rule.
§33-41-8. Creation of insurance fraud unit; purpose; duties; personnel qualifications.

          (a) There is established the West Virginia insurance fraud unit within the office of the insurance commissioner of West Virginia. The commissioner may employ full-time supervisory, legal and investigative personnel for the unit, who shall be qualified by training and experience in the areas of detection, investigation or prosecution of fraud within and against the insurance industry to perform the duties of their positions. The director of the fraud unit shall be a full-time position and shall be appointed by the commissioner and serve at his or her will and pleasure. The commissioner shall provide office space, equipment, supplies, clerical and other staff that is necessary for the unit to carry out its duties and responsibilities under this article.
          (b) The fraud unit may in its discretion:
          (1) Initiate inquiries and conduct investigations when the unit has cause to believe violations of the provisions of this chapter or the provisions of article three, chapter sixty-one of this code relating to the business of insurance have been or are being committed;
          (2) Review reports or complaints of alleged fraud related to the business of insurance activities from federal, state and local law-enforcement and regulatory agencies, persons engaged in the business of insurance and the general public to determine whether the reports require further investigation; and
          (3) Conduct independent examinations of alleged fraudulent activity related to the business of insurance and undertake independent studies to determine the extent of fraudulent insurance acts.
          (c) The insurance fraud unit may:
          (1) Employ and train personnel to achieve the purposes of this article and to employ legal counsel, investigators, auditors and clerical support personnel and other personnel as the commissioner determines necessary from time to time to accomplish the purposes of this article;
          (2) Inspect, copy or collect records and evidence;
          (3) Serve subpoenas issued by grand juries and trial courts in criminal matters;
          (4) Share records and evidence with federal, state or local law-enforcement or regulatory agencies, and enter into interagency agreements;    
          (5) Make criminal referrals to the county prosecutors;
          (6) Conduct investigations outside this state. If the information the insurance fraud unit seeks to obtain is located outside this state, the person from whom the information is sought may make the information available to the insurance fraud unit to examine at the place where the information is located. The insurance fraud unit may designate representatives, including officials of the state in which the matter is located, to inspect the information on behalf of the insurance fraud unit, and the insurance fraud unit may respond to similar requests from officials of other states;
          (7) The fraud unit may initiate investigations and participate in the development of, and if necessary, the prosecution of any health care provider, including a provider of rehabilitation services, suspected of fraudulent activity related to the business of insurance;
          (8) Specific personnel, designated by the commissioner, shall be permitted to operate vehicles owned or leased for the state displaying Class A registration plates;
          (9) Notwithstanding any provision of this code to the contrary, specific personnel designated by the commissioner may carry firearms in the course of their official duties after meeting specialized qualifications established by the governor's committee on crime, delinquency and correction, which shall include the successful completion of handgun training provided to law- enforcement officers by the West Virginia state police: Provided, That nothing in this subsection shall be construed to include any person designated by the commissioner as a law-enforcement officer as that term is defined by the provisions of section one, article twenty-nine, chapter thirty of this code; and
          (10) The insurance fraud unit shall not be subject to the provisions of article nine-a, chapter six of this code and the investigations conducted by the insurance fraud unit and the materials placed in the files of the unit as a result of any such investigation are exempt from public disclosure under the provisions of chapter twenty-nine-b of this code.
§33-41-9. Other law-enforcement or regulatory authority.
          This article does not:
          (1) Preempt the authority or relieve the duty of other law-enforcement or regulatory agencies to investigate, examine and prosecute suspected violations of law;
          (2) Prevent or prohibit a person from disclosing voluntarily information concerning insurance fraud to a law-enforcement or regulatory agency other than the insurance fraud unit; or
          (3) Limit the powers granted elsewhere by the laws of this state to the commissioner or his or her agents to investigate and examine possible violations of law and to take appropriate action against violators of law.
§33-41-10. Rules.
          The insurance commissioner shall, pursuant to the provisions of article three, chapter twenty-nine-a of this code, promulgate such legislative rules as are necessary or proper to carry out the purposes of this article.
§33-41-11. Fraudulent claims to insurance companies.
          (a) Any person who knowingly and willfully and with intent to defraud submits a materially false statement in support of a claim for insurance benefits or payment pursuant to a policy of insurance or who conspires to do so is guilty of a crime and is subject to the penalties set forth in the provisions of this section.
          (b) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought exceeds one thousand dollars in value is guilty of a felony and, upon conviction thereof, shall be confined in a correctional facility for not less than one nor more than ten years, fined not more than ten thousand dollars, or both, or, in the discretion of the circuit court, confined in a county or regional jail for not more than one year and so fined.
          (c) Any person who commits a violation of the provisions of subsection (a) of this section where the benefit sought is one thousand dollars or less in value, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than one year, fined not more than two thousand five hundred dollars, or both.
          (d) Any person convicted of a violation of this section is subject to the restitution provisions of article eleven-a, chapter sixty-one of this code.
          (e) The circuit court may award to the unit or other law- enforcement agency investigating a violation of this section or other criminal offense related to the business of insurance its cost of investigation.
§33-41-12. Civil penalties; injunctive relief; employment disqualification.

          A person or entity engaged in the business of insurance or a person or entity making a claim against an insurer who violates any provision of this article may be subject to the following:
          (1) Where applicable, suspension or revocation of license or certificate of authority or a civil penalty of up to ten thousand dollars per violation, or where applicable, both. Suspension or revocation of license or certificate of authority or imposition of civil penalties may be pursuant to an order of the commissioner issued pursuant to the provisions of section thirteen, article two of this chapter. The commissioner's order may require a person found to be in violation of this article to make reasonable restitution to persons aggrieved by violations of this article. The commissioner may assess a person sanctioned pursuant to the provisions of this section the cost of investigation;
          (2) Notwithstanding any other provision of law, a civil penalty imposed pursuant to the provisions of this section is mandatory and not subject to suspension;
          (3) A person convicted of a felony violation law reasonably related to the business of insurance shall be disqualified from engaging in the business of insurance; and
          (4) The commissioner may apply for a temporary or permanent injunction in any appropriate circuit court of this state seeking to enjoin and restrain a person from violating or continuing to violate the provisions of this article or rule promulgated under this article, notwithstanding the existence of other remedies at law. The circuit court shall have jurisdiction of the proceeding and have the power to make and enter an order or judgment awarding temporary or permanent injunctive relief restraining any person from violating or continuing to violate any provision of this article or rule promulgated under the article as in its judgment is proper.;
          On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
          That the code of West Virginia, 1931, as amended, be amended by adding thereto three new sections, designated §33-2-15b, §33-2- 15c and §33-2-20; that §33-6A-4 of said code be amended and reenacted; that said code be amended by adding thereto three new sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c; that said code be amended by adding thereto a new section, designated §33-22- 2a; that said code be amended by adding thereto a new section, designated §33-23-2a; that said code be amended by adding thereto a new section, designated §33-24-4b; that said code be amended by adding thereto a new section, designated §33-25-6a; that said code be amended by adding thereto a new section, designated §33-25A-24b; that §33-41-1, §33-41-2 and §33-41-3 of said code be amended and reenacted; and that said code be amended by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33- 41-8, §33-41-9, §33-41-10, §33-41-11 and §33-41-12, all to read as follows:;
          And,
          On pages one through three, by striking out the title and substituting therefor a new title, to read as follows:
          Eng. Com. Sub. for House Bill No. 4004--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto three new sections, designated §33-2-15b, §33-2-15c and
§33-2-20; to amend and reenact §33-6A-4 of said code; to amend said code by adding thereto three new sections, designated §33-6A-4a, §33-6A-4b and §33-6A-4c; to amend said code by adding thereto a new section, designated §33-22-2a; to amend said code by adding thereto a new section, designated §33-23-2a; to amend said code by adding thereto a new section, designated §33-24-4b; to amend said code by adding thereto a new section, designated §33-25-6a; to amend said code by adding thereto a new section, designated §33-25A-24b; to amend and reenact §33-41-1, §33-41-2 and §33-41-3 of said code; and to amend said code by adding thereto nine new sections, designated §33-41-4, §33-41-5, §33-41-6, §33-41-7, §33-41-8, §33-41-9, §33-41-10, §33- 41-11 and §33-41-12, all relating to insurance generally; requiring the insurance commissioner to submit a report to the Legislature on the impact of third-party causes of actions on rates and availability and to make recommendations; authorizing the commissioner to request information from insurers; providing that certain information provided by insurers is not subject to disclosure; requiring the insurance commissioner to submit a report to the Legislature on the office of the consumer advocate; requiring the commissioner to make recommendations regarding the office of the consumer advocate; permitting additional reasons for nonrenewal of automobile liability or physical damage policies; requiring the submission of withdrawal plans in certain instances; providing that a certain percentage of existing policies or any policies issued or renewed after the effective date of the bill may be nonrenewed by an insurer for any reason with proper notice to the insured; providing that a certain percentage of policies may be nonrenewed for underwriting reasons; allowing insurers to elect a method of nonrenewal; requiring renewal in certain instances when there are restrictive endorsements; authorizing the commissioner of insurance to act regarding withdrawal of insurers from the state; authorizing the commissioner to allow certain insurers to withdraw from the state; requiring insurers and the insurance commissioner to submit information regarding the impact of legislation on rates and availability; prevention and investigation of insurance fraud generally; subjecting farmers' mutual insurance companies, fraternal benefit societies, certain hospital, medical, dental and health services corporations, health care corporations and health maintenance organizations to insurance fraud provisions; creating the West Virginia insurance fraud prevention act; legislative intent; defining terms; requiring fraud warning on forms; use of special assistant prosecutor; establishing an insurance fraud unit within agency of insurance commissioner; authorizing promulgation of rules; establishing powers and duties of the unit; establishing investigative powers and procedures; providing confidentiality of fraud unit records; immunity for providing information provided to law enforcement regarding fraud; exceptions; creating offense of insurance fraud; establishing penalties and fines; authorizing prosecution for insurance fraud; authorizing fraud unit attorneys to act as special prosecutors at request of county prosecutors; specifying duties of insurers; creating misdemeanor and felony offenses for the commission of fraudulent acts; creating civil penalties; granting authority to commissioner to administratively sanction regulated persons and insureds for violations of the article; and exceptions and immunities.
          On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendments to the Senate amendments to the bill.
          Engrossed Committee Substitute for House Bill No. 4004, as amended, was then put upon its passage.
          On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--32.
          The nays were: Rowe--1.
          Absent: Bailey--1.
          So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4004) passed with its House of Delegates amended title.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended with its Senate amended title, and requested the concurrence of the Senate in the House of Delegates amendment to the Senate amendments, as to
          Eng. Com. Sub. for House Bill No. 4266, Requiring regulatory agencies of government, with exceptions, to study ways to expedite the issuance of licenses, permits and certificates.
          On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
          The following House of Delegates amendment to the Senate amendments to the bill was reported by the Clerk:
          On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
          That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §5-29-1 and §5-29-2, all to read as follows:.
          On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to the bill.
          Engrossed Committee Substitute for House Bill No. 4266, as amended, was then put upon its passage.
          On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
          The nays were: None.
          Absent: Bailey--1.
          So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4266) passed with its Senate amended title.
          Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
          A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended with its Senate amended title, and requested the concurrence of the Senate in the House of Delegates amendments to the Senate amendments, as to
          Eng. Com. Sub. for House Bill No. 4605, Clarifying certain provisions of the West Virginia Code as they relate to domestic violence offenses and related protective orders that are issued by various courts.
          On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
          The following House of Delegates amendments to the Senate amendments to the bill were reported by the Clerk:
          On page one, by striking everything after the chapter heading and inserting in lieu thereof the following:
ARTICLE 5. DIVORCE.
Part V. Temporary Relief During Pendency of Action For Divorce.

§48-5-509. Enjoining abuse, emergency protective order.
          (a) The court may enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other, or interfering with the custodial or visitation rights of the other. This order may enjoin the offending party from:
          (1) Entering the school, business or place of employment of the other for the purpose of molesting or harassing the other;
          (2) Contacting the other, in person or by telephone, for the purpose of harassment or threats; or
(3) Harassing or verbally abusing the other in a public place.

          (b) Any order entered by the court to protect a party from abuse may grant any other relief that may be appropriate for inclusion under authorized by the provisions of article twenty- seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.
          (c) The court, in its discretion, may enter a protective order, as provided in article twenty-seven of this chapter, as part of the final relief granted in a divorce action, either as a part of an order for temporary relief or as part of a separate order. Notwithstanding the provisions of section five hundred five of said article, a protective order entered pursuant to the provisions of this subsection shall remain in effect until a final order is entered in the divorce, unless otherwise ordered by the judge.
Part VI. Judgment Ordering Divorce.

§48-5-608. Injunctive relief or protective orders.
          (a) When allegations of abuse have been proved, the court shall enjoin the offending party from molesting or interfering with the other, or otherwise imposing any restraint on the personal liberty of the other or interfering with the custodial or visitation rights of the other. The order may permanently enjoin the offending party from entering the school, business or place of employment of the other for the purpose of molesting or harassing the other; or from contacting the other, in person or by telephone, for the purpose of harassment or threats; or from harassing or verbally abusing the other in a public place.
          (b) Any order entered by the court to protect a party from abuse may grant relief pursuant to the provisions of article twenty-seven of this chapter any other relief authorized to be awarded by the provisions of article twenty-seven of this chapter, if the party seeking the relief has established the grounds for that relief as required by the provisions of said article.
          (c) The court, in its discretion, may enter a protective order, as provided in by the provisions of article twenty-seven of this chapter, as part of the final relief in a divorce action, either as a part of a order for final relief or in a separate order.
A protective order entered pursuant to the provisions of this subsection shall remain in effect for the period of time ordered by the court not to exceed one hundred eighty days: Provided, That if the court determines that a violation of a domestic violence protective order entered during or extended by the divorce action has occurred, it may extend the protective order for whatever period the court deems necessary to protect the safety of the petitioner and others threatened or at risk.
ARTICLE 27. PREVENTION AND TREATMENT OF DOMESTIC VIOLENCE.
Part 4. Coordination With Pending Court Actions.

§48-27-401. Interaction between domestic proceedings.
          (a) During the pendency of a divorce action, a person may file for and be granted relief provided by this article until an order is entered in the divorce action pursuant to part 5-501, et seq.
          (b) If a person who has been granted relief under this article should subsequently become a party to an action for divorce, separate maintenance or annulment, such person shall remain entitled to the relief provided under this article including the right to file for and obtain any further relief, so long as no temporary order has been entered in the action for divorce, annulment and separate maintenance, pursuant to part 5-501, et seq.
          (c) Except as provided in section 5-509 of this chapter and section 27-402 of this article for a petition and a temporary emergency protective order, no person who is a party to a pending action for divorce, separate maintenance or annulment in which an order has been entered pursuant to part 5-501, et seq., of this chapter, shall be entitled to file for or obtain relief against another party to that action under this article until after the entry of a final order which grants or dismisses the action for divorce, annulment or separate maintenance.
          (d) Notwithstanding the provisions set forth in section 27- 505, any order issued pursuant to this article where a subsequent when an action is filed seeking a divorce, an annulment or separate maintenance, the allocation of custodial responsibility or a habeas corpus action to establish custody, the establishment of paternity, the establishment or enforcement of child support or other relief under the provisions of this chapter is filed or is reopened by petition, motion or otherwise, then any order issued pursuant to this article which is in effect on the day the action is filed or reopened shall remain in full force and effect by operation of this statute until: (1) a A temporary or final order is entered pursuant to the provisions of part 5-501, et seq., or part 6-601, et seq., of this chapter; or (2) an order is entered modifying such order issued pursuant to this article; or (3) the entry of a final order is entered granting or dismissing the action.
Part IX. Sanctions.

§48-27-902. Violations of protective orders; criminal complaints.
          (a) When a respondent abuses the petitioner or minor children, or both, or is physically present at any location in knowing and willful violation of the terms of an emergency or final protective order under the provisions of this article or section 5-509 or 5- 608 of this chapter granting the relief pursuant to the provisions of this article, any person authorized to file a petition pursuant to the provisions of section 27-305 or the legal guardian or guardian ad litem may file a petition for civil contempt as set forth in section 27-901.
          (b) When any such violation of a valid order has occurred, the petitioner may file a criminal complaint. If the court finds probable cause upon the complaint, the court shall issue a warrant for arrest of the person charged.
§48-27-903. Misdemeanor offenses for violation of protective order, repeat offenses, penalties.

     (a) A respondent who abuses the petitioner or minor children or who is physically present at any location in knowing and willful violation of the terms of an: (1) An emergency or final protective order issued under the provisions of this article or
section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article; or (2) a condition of bail, probation or parole which has the express intent or effect of protecting the personal safety of a particular person or persons is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for a period of not less than one day nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and shall be fined not less than two hundred fifty dollars nor more than two thousand dollars.
     (b) When a A respondent previously convicted of the offense described in who is convicted of a second or subsequent offense under subsection (a) of this section abuses the petitioner or minor children or is physically present at any location in knowing and willful violation of the terms of a temporary or final protective order issued under the provisions of this article, the respondent is guilty of a misdemeanor and, upon conviction thereof, shall be confined in the county or regional jail for not less than three months nor more than one year, which jail term shall include actual confinement of not less than twenty-four hours, and fined not less than five hundred dollars nor more than three thousand dollars, or both.

          Part X. Arrests.

§48-27-1001. Arrest for violations of protective orders.
          (a) When a law-enforcement officer observes any respondent abuse the petitioner or minor children or the respondent's physical presence at any location in knowing and willful violation of the terms of an emergency or final protective order issued under the provisions of this article or section 5-509 or 5-608 of this chapter granting the relief pursuant to the provisions of this article, he or she shall immediately arrest the respondent.
          (b) When a family or household member is alleged to have committed a violation of the provisions of section 27-903, a law- enforcement officer may arrest the perpetrator for said offense where:
          (1) The law-enforcement officer has observed credible corroborative evidence, as defined in subsection 27-1002(b), that the offense has occurred; and
          (2) The law-enforcement officer has received, from the victim or a witness, a verbal or written allegation of the facts constituting a violation of section 27-903; or
          (3) The law-enforcement officer has observed credible evidence that the accused committed the offense.
          (c) Any person who observes a violation of a protective order as described in this section, or the victim of such abuse or unlawful presence, may call a local law-enforcement agency, which shall verify the existence of a current order, and shall direct a law-enforcement officer to promptly investigate the alleged violation.
          (d) Where there is an arrest, the officer shall take the arrested person before a circuit court or a magistrate and, upon a finding of probable cause to believe a violation of an order as set forth in this section has occurred, the court or magistrate shall set a time and place for a hearing in accordance with the West Virginia rules of criminal procedure.
Part XI. Miscellaneous Provisions.

§48-27-1102. Authorization for the promulgation of legislative rules.

          The governor's committee on crime, delinquency and correction shall develop and promulgate rules for state, county and municipal law-enforcement officers, and law-enforcement agencies and communications and emergency operations centers which dispatch law- enforcement officers with regard to domestic violence: Provided, That such rules and procedures must be consistent with the priority criteria prescribed by generally applicable department procedures. The notice of the public hearing on the rules shall be published before the first day of July, one thousand nine hundred ninety-one. Prior to the publication of the proposed rules, the governor's committee on crime, delinquency and correction shall convene a meeting or meetings of an advisory committee to assist in the development of the rules. The advisory committee shall be composed of persons invited by the committee to represent state, county and local law-enforcement agencies and officers, to represent magistrates and court officials, to represent victims of domestic violence, to represent shelters receiving funding pursuant to article 26-101, et seq., of this chapter, to represent communications and emergency operations centers that dispatch law- enforcement officers and to represent other persons or organizations who, in the discretion of the committee, have an interest in the rules. The rules and the revisions thereof as provided in this section shall be promulgated as legislative rules in accordance with chapter twenty-nine-a of this code. Following the promulgation of said rules, the The committee shall meet at least annually to review the rules and to propose revisions as a result of changes in law or policy.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9. Malicious or unlawful assault; assault; battery; penalties.

          (a) If any person maliciously shoot, stab, cut or wound any person, or by any means cause him bodily injury with intent to maim, disfigure, disable or kill, he shall, except where it is otherwise provided, be guilty of a felony and, upon conviction, shall be punished by confinement in the penitentiary not less than two nor more than ten years. If such act be done unlawfully, but not maliciously, with the intent aforesaid, the offender shall be guilty of a felony and, upon conviction, shall, in the discretion of the court, either be confined in the penitentiary not less than one nor more than five years, or be confined in jail not exceeding twelve months and fined not exceeding five hundred dollars.
          (b) Assault. -- If any person unlawfully attempts to commit a violent injury to the person of another or unlawfully commits an act which places another in reasonable apprehension of immediately receiving a violent injury, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than six months, or fined not more than one hundred dollars, or both such fine and imprisonment.
          (c) Battery. -- If any person unlawfully and intentionally makes physical contact of an insulting or provoking nature with the person of another or unlawfully and intentionally causes physical harm to another person, he shall be guilty of a misdemeanor and, upon conviction, shall be confined in jail for not more than twelve months, or fined not more than five hundred dollars, or both such fine and imprisonment.

          (d) Any person convicted of a violation of subsection (b) or (c) of this section who has, in the ten years prior to said conviction, been convicted of a violation of either subsection (b) or (c) of this section where the victim was a current or former spouse, current or former sexual or intimate partner, a person with whom the defendant has a child in common, a person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or convicted of a violation of section twenty-eight of this article or has served a period of pretrial diversion for an alleged violation of subsection (b) or (c) of this section or section twenty-eight of this article when the victim has such present or past relationship shall, upon conviction, be subject to the penalties set forth in section twenty-eight of this article for a second, third or subsequent criminal act of domestic violence offense, as appropriate.
§61-2-28. Domestic violence -- Criminal acts.

          (a) Domestic battery. -- Any person who unlawfully and intentionally makes physical contact of an insulting or provoking nature with his or her family or household member or unlawfully and intentionally causes physical harm to his or her family or household member, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than twelve months, or fined not more than five hundred dollars, or both.
          (b) Domestic assault. -- Any person who unlawfully attempts to commit a violent injury against his or her family or household member or unlawfully commits an act which places his or her family or household member in reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not more than six months, or fined not more than one hundred dollars, or both.
          (c) Second offense domestic assault or domestic battery. -- Any person who has previously been convicted of a violation of subsection (a) or (b) of this section, a violation of the provisions of subsection (b) or (c), section nine of this article where the victim was his or her family or household member, or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member
          A person convicted of a violation of subsection (a) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section, or a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense is guilty of a misdemeanor and, upon conviction thereof, shall be confined in a county or regional jail for not less than sixty days nor more than one year, or fined not more than one thousand dollars, or both.
          A person convicted of a violation of subsection (b) of this section after having been previously convicted of a violation of subsection (a) or (b) of this section, after having been convicted of a violation of subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or having previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or subsection (b) or (c), section nine of this article where the victim was his or her family or household member a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense shall be confined in a county or regional jail for not less than thirty days nor more than six months, or fined not more than five hundred dollars, or both.
          (d) Third offense. -- Any person who has been convicted of a third or subsequent violation of the provisions of subsection (a) or (b) of this section, a third or subsequent violation of the provisions of section nine of this article where the victim is a family or household member was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or who has previously been granted a period of pretrial diversion pursuant to section twenty-two, article eleven of this chapter for a violation of subsection (a) or (b) of this section or a violation of the provisions of section nine of this article where in which the victim is a family or household member was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense, or any combination of convictions or diversions for these offenses, is guilty of a felony if the offense occurs within ten years of a prior conviction of any of these offenses and, upon conviction thereof, shall be confined in a state correctional facility not less than one nor more than five years or fined not more than two thousand five hundred dollars, or both.
          (e) As used in this section, "family or household member" means "family or household member" as defined in 48-27-203 48-27- 204 of this code.
          (f) A person charged with a violation of this section may not also be charged with a violation of subsection (b) or (c), section nine of this article for the same act.
          (g) No law-enforcement officer may be subject to any civil or criminal action for false arrest or unlawful detention for effecting an arrest pursuant to this section or pursuant to 48-27-1002 of this code.
ARTICLE 7. DANGEROUS WEAPONS.
§61-7-4. License to carry deadly weapons; how obtained.
          (a) Except as provided in subsection (h) of this section, any person desiring to obtain a state license to carry a concealed deadly weapon shall apply to the sheriff of his or her county for such license and shall pay to the sheriff, at the time of application, a fee of seventy-five dollars, of which fifteen dollars of that amount shall be deposited in the courthouse facilities improvement fund created by section six, article twenty-six, chapter twenty-nine of this code. Concealed weapons permits may only be issued for pistols or revolvers. Each applicant shall file with the sheriff a complete application, as prepared by the superintendent of the West Virginia state police, in writing, duly verified, which sets forth only the following licensing requirements:
          (1) The applicant's full name, date of birth, social security number and a description of the applicant's physical features;
          (2) That, on the date the application is made, the applicant is a bona fide resident of this state and of the county in which the application is made and has a valid driver's license or other state-issued photo identification showing such residence;
          (3) That the applicant is twenty-one years of age or older: Provided, That any individual who is less than twenty-one years of age and possesses a properly issued concealed weapons license as of the effective date of this article shall be licensed to maintain his or her concealed weapons license notwithstanding the provisions of this section requiring new applicants to be at least twenty-one years of age: Provided, however, That upon a showing of any applicant who is eighteen years of age or older that he or she is required to carry a concealed weapon as a condition for employment, and presents satisfactory proof to the sheriff thereof, then he or she shall be issued a license upon meeting all other conditions of this section. Upon discontinuance of employment that requires the concealed weapons license, if the individual issued the license is not yet twenty-one years of age, then the individual issued the license is no longer eligible and must return his or her license to the issuing sheriff;
          (4) That the applicant is not addicted to alcohol, a controlled substance or a drug and is not an unlawful user thereof;
          (5) That the applicant has not been convicted of a felony or of an act of violence involving the misuse of a deadly weapon;
          (6) That the applicant has not been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or a misdemeanor offense with similar essential elements in a jurisdiction other than this state;
__________
(6) (7) That the applicant has no criminal charges pending and is not under indictment for a felony offense or is not currently serving a sentence of confinement, parole, probation or other court-ordered supervision
because of a charge of domestic violence as provided for in section twenty-eight, article two of this chapter imposed by a court of any jurisdiction or is the subject of a restraining order as a result of a domestic violence act as defined in that section, or because of a verified petition of domestic violence as provided for in article two-a, chapter forty- eight of this code or is subject to a protective order as provided for in that article an emergency or temporary domestic violence protective order or is the subject of a final domestic violence protective order entered by a court of any jurisdiction ;
          (7) (8) That the applicant is physically and mentally competent to carry such weapon;
          (8) (9) That the applicant has not been adjudicated to be mentally incompetent;
          (9) (10) That the applicant has qualified under the minimum requirements set forth in subsection (d) of this section for handling and firing such weapon: Provided, That this requirement shall be waived in the case of a renewal applicant who has previously qualified;
          (10) (11) That the applicant authorizes the sheriff of the county, or his or her designee, to conduct an investigation relative to the information contained in the application.
          (b) The sheriff shall conduct an investigation which shall verify that the information required in subdivisions (1), (2), (3), (5), (6), (8) and (9), subsection (a) of this section are true and correct.
          (c) Sixty dollars of the application fee and any fees for replacement of lost or stolen licenses received by the sheriff shall be deposited by the sheriff into a concealed weapons license administration fund. Such fund shall be administered by the sheriff and shall take the form of an interest-bearing account with any interest earned to be compounded to the fund. Any funds deposited in this concealed weapon license administration fund are to be expended by the sheriff to pay for the costs associated with issuing concealed weapons licenses. Any surplus in the fund on hand at the end of each fiscal year may be expended for other law-enforcement purposes or operating needs of the sheriff's office, as the sheriff may consider appropriate.
          (d) All persons applying for a license must complete a training course in handling and firing a handgun. The successful completion of any of the following courses fulfills this training requirement:
          (1) Any official national rifle association handgun safety or training course;
          (2) Any handgun safety or training course or class available to the general public offered by an official law-enforcement organization, community college, junior college, college or private or public institution or organization or handgun training school utilizing instructors duly certified by such institution;
          (3) Any handgun training or safety course or class conducted by a handgun instructor certified as such by the state or by the national rifle association;
          (4) Any handgun training or safety course or class conducted by any branch of the United States military, reserve or national guard.
          A photocopy of a certificate of completion of any of the courses or classes or an affidavit from the instructor, school, club, organization or group that conducted or taught said course or class attesting to the successful completion of the course or class by the applicant or a copy of any document which shows successful completion of the course or class shall constitute evidence of qualification under this section.
          (e) All concealed weapons license applications must be notarized by a notary public duly licensed under article four, chapter twenty-nine of this code. Falsification of any portion of the application constitutes false swearing and is punishable under the provisions of section two, article five of this chapter.
          (f) If the information in the application is found to be true and correct, the sheriff shall issue a license. The sheriff shall issue or deny the license within forty-five days after the application is filed if all required background checks authorized by this section are completed.
          (g) Before any approved license shall be issued or become effective, the applicant shall pay to the sheriff a fee in the amount of fifteen dollars which the sheriff shall forward to the superintendent of the West Virginia state police within thirty days of receipt. Any such license shall be valid for five years throughout the state, unless sooner revoked.
          (h) All persons holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, shall continue to hold a valid concealed weapons license until his or her license expires or is revoked as provided for in this article: Provided, That all reapplication fees shall be waived for applications received by the first day of January, one thousand nine hundred ninety-seven, for any person holding a current and valid concealed weapons license as of the sixteenth day of December, one thousand nine hundred ninety-five, which contains use restrictions placed upon the license as a condition of issuance by the issuing circuit court. Any licenses reissued pursuant to this subsection will be issued for the time period of the original license.
          (i) Each license shall contain the full name, social security number and address of the licensee and a space upon which the signature of the licensee shall be signed with pen and ink. The issuing sheriff shall sign and attach his or her seal to all license cards. The sheriff shall provide to each new licensee a duplicate license card, in size similar to other state identification cards and licenses, suitable for carrying in a wallet, and such license card is deemed a license for the purposes of this section.
          (j) The superintendent of the West Virginia state police shall prepare uniform applications for licenses and license cards showing that such license has been granted and shall do any other act required to be done to protect the state and see to the enforcement of this section.
          (k) In the event an application is denied, the specific reasons for the denial shall be stated by the sheriff denying the application. Any person denied a license may file, in the circuit court of the county in which the application was made, a petition seeking review of the denial. Such petition shall be filed within thirty days of the denial. The court shall then determine whether the applicant is entitled to the issuance of a license under the criteria set forth in this section. The applicant may be represented by counsel, but in no case shall the court be required to appoint counsel for an applicant. The final order of the court shall include the court's findings of fact and conclusions of law. If the final order upholds the denial, the applicant may file an appeal in accordance with the rules of appellate procedure of the supreme court of appeals.
          (l) In the event a license is lost or destroyed, the person to whom the license was issued may obtain a duplicate or substitute license for a fee of five dollars by filing a notarized statement with the sheriff indicating that the license has been lost or destroyed.
          (m) The sheriff shall, immediately after the license is granted as aforesaid, furnish the superintendent of the West Virginia state police a certified copy of the approved application. It shall be the duty of the sheriff to furnish to the superintendent of the West Virginia state police at any time so requested a certified list of all such licenses issued in the county. The superintendent of the West Virginia state police shall maintain a registry of all persons who have been issued concealed weapons licenses.
          (n) All licensees must carry with them a state-issued photo identification card with the concealed weapons license whenever the licensee is carrying a concealed weapon. Any licensee who fails to have in his or her possession a state-issued photo identification card and a current concealed weapons license while carrying a concealed weapon shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than fifty nor more than two hundred dollars for each offense.
          (o) The sheriff shall deny any application or revoke any existing license upon determination that any of the licensing application requirements established in this section have been violated by the licensee.
          (p) No person who is engaged in the receipt, review or in the issuance or revocation of a concealed weapon license shall incur any civil liability as the result of the lawful performance of his or her duties under this article.
          (q) Notwithstanding the provisions of subsection (a) of this section, with respect to application by a former law-enforcement officer honorably retired from agencies governed by article fourteen, chapter seven of this code; article fourteen, chapter eight of this code
; article two, chapter fifteen of this code ; and article seven, chapter twenty of this code, an honorably retired officer is exempt from payment of fees and costs as otherwise required by this section, and the application of the honorably retired officer shall be granted without proof or inquiry by the sheriff as to those requirements set forth in subdivision (9), subsection (a) of this section, if the officer meets the remainder of the requirements of this section and has the approval of the appropriate chief law-enforcement officer.
§61-7-7. Persons prohibited from possessing firearms; classifications; reinstatement of rights to possess; offenses; penalties.

  (a) Except as provided for in this section, no person shall possess a firearm as such is defined in section two of this article who:
  (1) Has been convicted in any court of a crime punishable by imprisonment for a term exceeding one year;
  (2) Is addicted to alcohol;
  (3) Is an unlawful user of or addicted to any controlled substance;
  (4) Has been adjudicated as a mental defective or who has been involuntarily committed to a mental institution;
  (5) Being an alien is illegally or unlawfully in the United States;
  (6) Has been discharged from the armed forces under dishonorable conditions;
  (7) Is subject to a domestic violence protective order that:
  (A) Was issued after a hearing of which such person received actual notice and at which such person had an opportunity to participate;
  (B) Restrains such person from harassing, stalking or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
  (C) (i) Includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
  (ii) By its terms explicitly prohibits the use, attempted use or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
  (8) Has has been convicted of a misdemeanor offense of assault or battery either under the provisions of section twenty-eight, article two of this chapter or the provisions of subsection (b) or (c), section nine of said article in which the victim was a current or former spouse, current or former sexual or intimate partner, person with whom the defendant has a child in common, person with whom the defendant cohabits or has cohabited, a parent or guardian, the defendant's child or ward or a member of the defendant's household at the time of the offense or has been convicted in any court of any jurisdiction of a comparable misdemeanor crime of domestic violence.        
  Any person who violates the provisions of this subsection shall be guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or confined in the county jail for not less than ninety days nor more than one year, or both.
  (b) Notwithstanding the provisions of subsection (a) of this section, any person:
  (1) Who has been convicted in this state or any other jurisdiction of a felony crime of violence against the person of another or of a felony sexual offense; or
  (2) Who has been convicted in this state or any other jurisdiction of a felony controlled substance offense involving a Schedule I controlled substance other than marijuana, a Schedule II or a Schedule III controlled substance as such are defined in sections two hundred four, two hundred five and two hundred six, article two, chapter sixty-a of this code and who possesses a firearm as such is defined in section two of this article shall be guilty of a felony and, upon conviction thereof, shall be confined in a state correctional facility for not more than five years or fined not more than five thousand dollars, or both. The provisions of subsection (c) of this section shall not apply to persons convicted of offenses referred to in this subsection or to persons convicted of a violation of this subsection.
  (c) Any person prohibited from possessing a firearm by the provisions of subsection (a) of this section may petition the circuit court of the county in which he or she resides to regain the ability to possess a firearm and if the court finds by clear and convincing evidence that the person is competent and capable of exercising the responsibility concomitant with the possession of a firearm, the court may enter an order allowing the person to possess a firearm if such possession would not violate any federal law.;
  And,
  On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
  That §48-5-509 and §48-5-608 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §48-27-401, §48- 27-902, §48-27-903, §48-27-1001 and §48-27-1102 of said code be amended and reenacted; that §61-2-9 and §61-2-28 of said code be amended and reenacted; and that §61-7-4 and §61-7-7 of said code be amended and reenacted, all to read as follows:.
  On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendments to the Senate amendments to the bill.
  Engrossed Committee Substitute for House Bill No. 4605, as amended, was then put upon its passage.
  On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
  The nays were: None.
  Absent: Bailey--1.
  So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4605) passed with its Senate amended title.
  Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
  A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
  Eng. Com. Sub. for Com. Sub. for Senate Bill No. 701, Authorizing certain taxes imposed by municipalities.
  On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
  The following House of Delegates amendments to the bill were reported by the Clerk:
  On
page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
  That the code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §8-13C-1, §8-13C-2, §8-13C-3, §8-13C-4, §8-13C-5, §8-13C-5a, §8-13C-6, §8-13C-7, §8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-13C-13; that §11-9-2, §11-9-3, §11-9-4, §11-9-5, §11-9-6, §11-9-8 and §11-9-10 of said code be amended and reenacted; and that §11-10-3 of said code be amended and reenacted, all to read as follows:
CHAPTER 8. MUNICIPAL CORPORATIONS.

ARTICLE 13C. MUNICIPAL TAX IN LIEU OF BUSINESS AND OCCUPATION TAX; AND MUNICIPAL TAXES APPLICABLE TO PENSION FUNDS.

§8-13C-1. Findings.
  The Legislature finds that:
  (a) Imposing additional taxes creates an extra burden on the citizens of the state;
  (b) Imposing additional taxes can be detrimental to the economy of the state;
  (c) Imposing additional taxes is only proper under certain circumstances;
  (d) For many municipalities with severe unfunded liabilities of the police and fire pension funds, all available sources of local revenue have been exhausted. Property taxes are at the maximum allowed by the state constitution and local business and occupation taxes and utility taxes are at the maximum rates allowed by state law. Other fees have reached the economic maximum and are causing relocation of business outside the municipal boundaries;
  (e) For many municipalities with severe unfunded police and fire pension fund liabilities, revenue from existing sources has become stagnant over the past few years with no expectation of significant future growth;
  (f) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds are now close to equaling the city payrolls for police and fire protection and will rise to exceed those payrolls within a ten-year period;
  (g) For many municipalities with severe unfunded police and fire pension fund liabilities, payments required under state law to fund fire and police pension funds now constitute a large percentage of those municipalities' total budget and will rise to an even larger percentage of the available revenues in the next ten years. Payment and benefit levels are dictated to the municipalities by state law;
  (h) As the required pension payments rise, many of the municipalities with severe unfunded police and fire pension fund liabilities will find it impossible to maintain at minimum levels necessary and proper city services including, but not limited to, police and fire protection, street maintenance and repair and sanitary services;
  (i) For some of the municipalities with severe unfunded liabilities of the police and fire pension funds, the combination of the steeply rising pension obligations and the stagnant revenue sources raise the real possibility of municipal bankruptcy in the near and predictable future. If this happens, pensioners would either not receive the full benefits which they have been promised or pressure would be placed on the state to fund these programs;
  (j) For a municipality that has the most severe unfunded liability in its pension funds, paying off the unfunded liability in a timely manner would cause tremendous financial hardship and the loss of many services that would otherwise be provided to the municipality's citizens;
  (k) Only for a municipality that has the most severe unfunded liability in its pension funds would the imposition of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of those taxes be an appropriate method of addressing the unfunded liability; and
  (l) Only for a municipality that does not impose or ceases to impose a business and occupation or privilege tax would the imposition of an alternative municipal sales and service tax and an alternative municipal use tax be appropriate.
§8-13C-2. Definitions.
  For the purposes of this article:
  (a) "Alternative municipal sales and service tax" means the tax authorized to be imposed by subsection (b), section four of this article only if a municipality does not impose or ceases to impose the business and occupation or privilege tax authorized in section five, article thirteen of this chapter;
  (b) "Alternative municipal use tax" means the tax authorized to be imposed by subsection (b), section five of this article only if a municipality does not impose or ceases to impose the business and occupation or privilege tax authorized in section five, article thirteen of this chapter;
  (c) "Qualifying municipality" means any municipality, as defined in section two, article one of this chapter:
  (1) In which the weighted average of the percentages to which its policemen's and firemen's pension and relief funds are fully funded is three percent or less on the date of adoption of the ordinance imposing the tax; and
  (2) That has satisfied the requirements set forth in section eleven of this article;
  (d) "Pension relief municipal occupational tax" means the tax authorized to be imposed by section three of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;
  (e) "Pension relief municipal sales and service tax" means the tax authorized to be imposed by subsection (a), section four of this article and for which the use of the proceeds of the tax are restricted by section nine of this article;
  (f) "Pension relief municipal use tax" means the tax authorized to be imposed by subsection (a), section five of this article and for which the use of the proceeds of the tax are restricted by section nine of this article; and
  (g) "Taxable employee" means any individual:
  (1) Who holds employment with an employer with a place of business located within the qualifying municipality electing to impose the municipal payroll tax pursuant to this article; and
  (2) Whose salaries, wages, commissions and other earned income that would be included in federal adjusted gross income for the year is more than ten thousand dollars per year.
§8-13C-3. Pension relief municipal occupational tax.
  (a) Effective on and after the first day of July, two thousand five, each qualifying municipality, as defined in section two of this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal occupational tax on taxable employees. Any pension relief municipal occupational tax imposed pursuant to this section shall meet the following requirements:
  (1) The tax shall be imposed at a rate of one percent or less;
  (2) The tax shall be imposed at a uniform rate; and
  (3) The tax rate shall be applied only to salaries, wages, commissions and other earned income of taxable employees that would be included in federal adjusted gross income for the year. The tax rate may not be applied to other forms of income including, but not limited to, intangible income and net profit from a business.
  (b) Each employer with a taxable employee, during each pay period, shall withhold from the taxable employee's salary the amount of the tax as computed by applying the appropriate tax rate to the taxable employee's salary during that pay period and remit the withholdings to the appropriate municipal taxing authority.
§8-13C-4. Municipal sales and service taxes.

  (a) Effective on and after the first day of July, two thousand five, each qualifying municipality, as defined in section two of this article, has the plenary power and authority to impose, by ordinance, a pension relief municipal sales and service tax at a rate not to exceed one percent, subject to the provisions of this article.
  (b) Effective on and after the first day of July, two thousand five, notwithstanding subsection (a) of this section, and in addition thereto in the case of a qualifying municipality, any municipality that does not impose, or ceases to impose, the business and occupation or privilege tax authorized by section five, article thirteen of this chapter has the plenary power and authority to impose, by ordinance, an alternative municipal sales and service tax at a rate not to exceed one percent, subject to the provisions of this article.
  (c) Any municipal sales and service tax imposed under the authority granted by this section is subject to the following:
  (1) The base of a municipal sales and service tax imposed pursuant to this section shall be identical to the base of the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality, subject to the following:
  (A) Except for the exemption provided in section nine-f, article fifteen, chapter eleven of this code, all exemptions and exceptions from consumers sales and service tax apply to a municipal sales and service tax imposed pursuant to this section; and
  (B) Sales of gasoline and special fuel are not subject to a municipal sales and service tax imposed pursuant to this section;
  (2) Any municipal sales and service tax imposed pursuant to this section applies solely to tangible personal property, custom software and services that are sourced to the municipality. The sourcing rules set forth in article fifteen-b, chapter eleven of this code, including any amendments thereto, apply to municipal sales and use taxes levied pursuant to this article;
  (3) Any municipality that imposes a municipal sales and service tax pursuant to this section or changes the rate of a municipal sales and service tax imposed pursuant to this section shall notify the tax commissioner pursuant to section six of this article;
  (4) Any municipality that imposes a municipal sales and service tax pursuant to this section may not administer or collect the tax, but shall use the services of the tax commissioner to administer, enforce and collect the tax;
  (5) Any municipal sales and service tax imposed pursuant to this section shall be imposed in addition to the consumers sales and service tax imposed pursuant to article fifteen, chapter eleven of this code on sales made and services rendered within the boundaries of the municipality and, except as exempted or excepted, all sales made and services rendered within the boundaries of the municipality shall remain subject to the tax levied by that article; and
  (6) Any municipal sales and service tax imposed pursuant to this section shall be imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and seven, article thirteen of this chapter and section twelve, article thirty-eight of this chapter.
§8-13C-5. Municipal use tax.
  (a) Effective on and after the first day of July, two thousand five, each qualifying municipality, as defined in section two of this article, that imposes a pension relief municipal sales and service tax pursuant to this article shall impose, by ordinance, a pension relief municipal use tax at the same rate that is set for the pension relief municipal sales and service tax.
  (b) Effective on and after the first day of July, two thousand five, each municipality that imposes an alternative municipal sales and service tax pursuant to this article shall impose, by ordinance, an alternative municipal use tax at the same rate that is set for the alternative municipal sales and service tax.
  (c) The base of a municipal use tax imposed pursuant to this section shall be identical to the base of the use tax imposed pursuant to article fifteen-a, chapter eleven of this code on the use of tangible personal property, custom software and taxable services within the boundaries of the municipality, subject to the following:
  (1) Except for the exemption provided in section nine-f, article fifteen, chapter eleven of this code, all exemptions and exceptions from the use tax apply to a municipal use tax imposed pursuant to this section; and
  (2) Uses of gasoline and special fuel are not subject to a municipal use tax imposed pursuant to this section when the use is subject to the tax imposed by article fourteen-c, chapter eleven of this code.
  (d) Any municipality that imposes a municipal use tax pursuant to this section or changes the rate of a municipal use tax imposed pursuant to this section shall notify the tax commissioner pursuant to section six of this article.
  (e) Any municipality that imposes a municipal use tax pursuant to this section may not administer or collect the tax, but shall use the services of the tax commissioner to administer, enforce and collect the taxes.
  (f) Any municipal use tax imposed pursuant to this section shall be imposed in addition to the use tax imposed pursuant to article fifteen-a, chapter eleven of this code on the use of tangible personal property, custom software or taxable services within the boundaries of the municipality and, except as exempted or excepted, all use of tangible personal property, custom software or taxable services within the boundaries of the municipality shall remain subject to the tax levied by said article.
  (g) Any municipal use tax imposed pursuant to this section shall be imposed in addition to any tax imposed pursuant to section one, article eighteen, chapter seven of this code, sections six and seven, article thirteen of this chapter and section twelve, article thirty-eight of this chapter.
§8-13C-5a. Credit for sales tax paid to another municipality.

  (a) Credit against municipal use tax. -- A person is entitled to a credit against a use tax imposed by a municipality pursuant to section five of this article on the use of a particular item of tangible personal property, custom software or service equal to the amount, if any, of sales tax lawfully paid to another municipality for the acquisition of that property or service: Provided, That the amount of credit allowed may not exceed the amount of use tax imposed on the use of the property or service in the municipality of use.
  (b) Definitions. -- For purposes of this section:
  (1) "Municipality" means a municipality, as defined in section two, article one of this chapter, or a comparable unit of local government in another state;
  (2) "Sales tax" includes a sales tax or compensating use tax
lawfully imposed on the use of tangible personal property, custom software or a service by the municipality or county, as appropriate, in which the sale or use occurred; and
  (3) "State" includes the fifty states of the United States and the District of Columbia but does not include any of the several territories organized by Congress.
  (c) No credit is allowed under this section for payment of any sales or use taxes imposed by this state or any other state.
§8-13C-6. Notification to tax commissioner; responsibilities of tax commissioner; application of state tax law.

  (a) Any municipality that imposes a municipal sales and service tax and a municipal use tax pursuant to this article or changes the rate of the taxes shall notify the tax commissioner of the imposition of the taxes or the change in the rate of the taxes within thirty days of enacting the ordinance imposing the taxes or changing the rate of the taxes. A municipal sales and service tax and a municipal use tax imposed pursuant to this article or a change in the rate of the taxes is not effective until at least ninety days after the ordinance imposing the taxes is enacted.
  (b) The tax commissioner is responsible for collecting, enforcing and administering any municipal sales and service tax and any municipal use tax imposed pursuant to this article in the same manner as the state sales and service tax imposed pursuant to article fifteen, chapter eleven of this code and the state use tax imposed pursuant to article fifteen-a of this code. Additionally, the tax commissioner may charge a fee not to exceed the lesser of the cost of the service provided or one percent of the proceeds from the municipal sales and service tax.
  (c) The state consumers sales and service tax law, set forth in article fifteen, chapter eleven of this code, and the amendments to that article and the rules of the tax commissioner relating to the laws shall apply to a municipal sales and service tax imposed pursuant to this article to the extent the rules and laws are applicable.
  (d) The state use tax law, set forth in article fifteen-a, chapter eleven of this code, and the amendments to that article and the rules of the tax commissioner relating to the laws shall apply to a municipal use tax imposed pursuant to this article to the extent the rules and laws are applicable.
  (e) Any term used in this article or in an ordinance adopted pursuant to this article that is defined in articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code, as amended, shall have the same meaning when used in this article or in an ordinance adopted pursuant to this article, unless the context in which the term is used clearly requires a different result.
  (f) Any amendments to articles nine, ten, fifteen, fifteen-a and fifteen-b, chapter eleven of this code shall automatically apply to a sales or use tax imposed pursuant to this article, to the extent applicable.
  (g) Each and every provision of the "West Virginia Tax Procedure and Administration Act" set forth in article ten, chapter eleven of this code applies to the taxes imposed pursuant to this article, except as otherwise expressly provided in this article, with like effect as if that act were applicable only to the taxes imposed by this article and were set forth in extenso in this article.
  (h) Each and every provision of the "West Virginia Tax Crimes and Penalties Act" set forth in article nine, chapter eleven of this code applies to the taxes imposed pursuant to this article with like effect as if that act were applicable only to the taxes imposed pursuant to this article and were set forth in extenso in this article.
§8-13C-7. Municipal sales and service tax and use tax fund; deposit and remittance of collections.

  (a) There is created a special revenue account in the state treasury designated the "municipal sales and service tax and use tax fund" which is an interest-bearing account and shall be invested in the manner described in section nine-c, article six, chapter twelve of this code with the interest and other return earned a proper credit to the fund. A separate subaccount within the fund shall be established for each municipality that imposes a municipal sales and service tax and use tax pursuant to this article.
  (b) The tax commissioner shall deposit all the proceeds from a municipal sales and service tax and a municipal use tax collected for each municipality minus any fee for collecting, enforcing and administering taxes in the appropriate subaccount. All moneys collected and deposited in the fund shall be remitted at least quarterly by the state treasurer to the treasurer of the appropriate municipality.
§8-13C-8. Printed catalogs.
  Local tax rate changes made pursuant to sections four and five of this article apply to purchases from printed catalogs where the purchaser computed the tax based upon the local tax rate published in the catalog only on and after the first day of a calendar quarter after a minimum of one hundred twenty days' notice to the seller.
§8-13C-9. Restriction on use of certain revenues.
  (a) All proceeds from a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax imposed pursuant to this article shall be used solely for the purpose of reducing the unfunded actuarial accrued liability of policemen's and firemen's pension and relief funds of the qualifying municipality imposing the tax. The proceeds used for this purpose shall be in addition to the minimum annual contribution required by section twenty, article twenty-two of this chapter.
  (b) A qualifying municipality loses its authority to impose a pension relief municipal occupational tax, a pension relief municipal sales and service tax and a pension relief municipal use tax pursuant to this article after:
  (1) The unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds is eliminated; or
  (2) Sufficient moneys accrue from the proceeds of the pension relief municipal occupational tax, the pension relief municipal sales and service tax, the pension relief municipal use tax or any combination of these taxes to eliminate the unfunded actuarial accrued liability of the qualifying municipality's policemen's and firemen's pension and relief funds.
§8-13C-10. Conflict; partial unconstitutionality.
  (a) If a court of competent jurisdiction finds that the provisions of this article and the provisions of articles fifteen, fifteen-a and fifteen-b, chapter eleven of this code conflict and cannot be harmonized, then the provisions of said articles shall control.
  (b) 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 does not affect the validity of the remaining portions of this article or any part thereof: Provided, That if this article is held to be unconstitutional under section thirty-nine, article VI of the constitution of West Virginia, this severability clause shall not apply.
§8-13C-11. Additional requirements for authority to impose certain taxes.

  (a) The authority to impose the pension relief municipal occupational tax, the pension relief municipal sales and service tax and the pension relief municipal use tax, all provided in this article, is not effective until a municipality wishing to impose the taxes presents to the joint committee on government and finance a plan to remove the unfunded liabilities of its policemen's and firemen's pension funds and the necessary changes in West Virginia law have been enacted to allow for implementation of the municipal plan.
  (b)
Notwithstanding any other provision of this code to the contrary, no cost-of-living increases or other benefit increases, and no new benefits, may be granted to or received by any member or beneficiary of a policemen's and firemen's pension and relief funds of a municipality during any period that the municipality imposes a pension relief municipal occupational tax, a pension relief municipal sales and service tax, the pension relief municipal use tax or any combination thereof authorized under this chapter.
§8-13C-12. Limited authority to impose tax.
  (a) Notwithstanding any other provision of this code to the contrary, no county, board, political subdivision or any other agency or entity other than a municipality may impose an alternative municipal sales and service tax, an alternative municipal use tax, a pension relief municipal occupational tax, a pension relief municipal sales and service tax, a pension relief municipal use tax or any combination of these taxes.
  (b) No subsequent amendment to this code shall supersede the provisions of subsection (a) of this section unless the amendment specifically states that the provisions of said subsection are superseded.
§8-13C-13. Study.
  The chief technology officer, appointed pursuant to article one-b, chapter five of this code, shall conduct a study on the cost for the tax commissioner to implement the taxes that may be imposed pursuant to this article. The chief technology officer shall report the findings and recommendations to the joint committee on government and finance before the first day of December, two thousand four.
CHAPTER 11. TAXATION.

ARTICLE 9. CRIMES AND PENALTIES.

§11-9-2. Application of this article.

  (a) The provisions of this article apply to the following taxes imposed by this chapter: (1) Inheritance and transfer taxes and estate taxes imposed by article eleven of this chapter; (2) business registration tax imposed by article twelve of this chapter; (3) minimum severance tax on coal imposed by article twelve-b of this chapter; (4) corporate license tax imposed by article twelve-c of this chapter; (5) business and occupation tax imposed by article thirteen of this chapter; (6) severance tax imposed by article thirteen-a of this chapter; (7) telecommunications tax imposed by article thirteen-b of this chapter; (8) gasoline and special fuels excise tax imposed by article fourteen of this chapter; (9) motor fuels excise tax imposed by article fourteen-c of this chapter; (10) motor carrier road tax imposed by article fourteen-a of this chapter; (11) interstate fuel tax agreement authorized by article fourteen-b of this chapter; (12) consumers sales and service tax imposed by article fifteen of this chapter; (13) use tax imposed by article fifteen-a of this chapter; (14) tobacco products excise tax imposed by article seventeen of this chapter; (15) soft drinks tax imposed by article nineteen of this chapter; (16) personal income tax imposed by article twenty-one of this chapter; (17) business franchise tax imposed by article twenty-three of this chapter; (18) corporation net income tax imposed by article twenty-four of this chapter; and (19) health care provider tax imposed by article twenty-seven of this chapter.
  (b) The provisions of this article also apply to the West Virginia tax procedure and administration act in article ten of this chapter and to any other articles of this chapter when application is expressly provided for by the Legislature.
  (c) The provisions of this article also apply to municipal sales and use taxes imposed pursuant to article thirteen-c, chapter eight of this code; the charitable bingo fee imposed by sections six and six-a, article twenty, chapter forty-seven of this code; the charitable raffle fee imposed by section seven, article twenty-one of said chapter; and the charitable raffle boards and games fees imposed by section three, article twenty-three of said chapter.
  (d) Each and every provision of this article applies to the articles of this chapter listed in subsections (a), (b) and (c) of this section, with like effect, as if the provisions of this article were applicable only to the tax and were set forth in extenso in this article.
§11-9-3. Definitions.

  For the purposes of this article, the term:
  (1) "Person" means any individual, firm, partnership, limited partnership, copartnership, joint venture, association, corporation, municipal corporation, organization, receiver, estate, trust, guardian, executor, administrator and any officer, employee or member of any of the foregoing who, as such an officer, employee or member, is under a duty to perform or is responsible for the performance or nonperformance of the act in respect of which a violation occurs under this article.
  (2) "Return" or "report" means any return or report required to be filed by any article of this chapter imposing any tax to which this article applies as specified in section two of this article or by any other article of this code pursuant to which a tax or fee is imposed that is collected by the tax commissioner as specified in section two of this article.
  (3) "Tax" or "taxes" means any tax to which this article applies, as specified in section two of this article, and includes additions to tax, penalties and interest unless the intention to give it a more limited meaning is disclosed by the context in which the term "tax" or "taxes" is used.
  (4) "Tax commissioner" or "commissioner" means the tax commissioner of the state of West Virginia or his or her delegate.
  (5) "This chapter" means chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, and shall include only those articles of chapter eleven of this code listed in section two of this article.
  (6) "Willfully" means the intentional violation of a known legal duty to perform any act, required to be performed by any provision of this chapter or article thirteen-c, chapter eight of this code, in respect of which the violation occurs: Provided, That the mere failure to perform any act shall not be a willful violation under this article. A willful violation of this article requires that the defendant had knowledge of or notice of a duty to perform such an act and that the defendant, with knowledge of or notice of such that duty, intentionally failed to perform such the act.
  (7) "Evade" means to willfully and fraudulently commit any act with the intent of depriving the state of payment of any tax which there is a known legal duty to pay under this chapter.
  (8) "Fraud" means any false representation or concealment as to any material fact made by any person with the knowledge that it is not true and correct, with the intent that such the representation or concealment be relied upon by the state.
§11-9-4. Failure to pay tax or file return or report.
  Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to pay any tax, or to file any return or report, who willfully fails to pay such the tax, or willfully fails to file such the return or report, more than thirty days after the date such the tax is required to be paid by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one two thousand five hundred dollars, or imprisoned in the county jail not more than six months, or both fined and imprisoned. Each failure to pay tax, or file a return or report, more than thirty days after its due date for any tax period is a separate offense under this section and punishable accordingly: Provided, That thirty days prior to instituting criminal proceedings under this section, the tax commissioner shall give the person written notice of any failure to pay a tax or to file a return or report. Such notice Notice shall be served on the person by certified mail or by personal service. The provisions of this section shall not apply to the business franchise registration tax imposed by article twelve of this chapter.
§11-9-5. Failure to account for and pay over another's tax.

  Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to collect, or withhold, account for and pay over any tax, who willfully fails to truthfully account for and pay over such the tax in the manner required by law, more than thirty days after the date such the tax is required to be accounted for and paid over by law, is guilty of a felony if the amount of tax not paid over is one thousand dollars or more and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than twenty-five thousand dollars or imprisoned in the penitentiary a correctional facility not less than one nor more than three years, or, in the discretion of the court, be confined in the county jail not more than one year, or both fined and imprisoned; or is guilty of a misdemeanor, if the amount of tax not paid over is less than one thousand dollars, and, upon conviction thereof, shall be fined not less than five hundred dollars nor more than five thousand dollars or imprisoned in the county jail not more than six months, or both fined and imprisoned. Each failure to account for and pay over tax for any tax period under this section is a separate offense and punishable accordingly: Provided, That thirty days prior to instituting a criminal proceeding under this section, the tax commissioner shall give the person written notice of the failure to truthfully account for and pay over tax. Such notice Notice shall be served on the person by certified mail or personal service.
§11-9-6. Failure to collect or withhold tax.

  Any person required by any provision of this chapter or article thirteen-c, chapter eight of this code to collect or withhold any tax, who willfully fails to collect or withhold such the tax in the manner required by law, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned in the county jail not more than six months, or both fined and imprisoned. Each month or fraction thereof during which such the failure continues is a separate offense under this section and punishable accordingly.
§11-9-8. Willful failure to maintain records or supply information; misuse of exemption certificate.

  If any person: (1) Willfully fails to maintain any records, or supply any information, in the manner required by this chapter or article thirteen-c, chapter eight of this code or regulations therefor promulgated in accordance with law, to compute, assess, withhold or collect any tax imposed by this chapter; or (2) presents to any vendor a certificate for the purpose of obtaining an exemption from the tax imposed by article fifteen or fifteen-a of this chapter or article thirteen-c, chapter eight of this code and then knowingly uses the item or service purchased in a manner that is not exempt from such the tax without remitting such the tax in the manner required by law, such that person is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than one hundred dollars nor more than one thousand dollars or imprisoned in the county jail not more than six months, or both fined and imprisoned.
§11-9-10. Attempt to evade tax.

  If any person: (1) Knowingly files a false or fraudulent return, report or other document under any provision of this chapter or article thirteen-c, chapter eight of this code; or (2) willfully delivers or discloses to the tax commissioner any list, return, account, statement, record or other document known by him or her to be fraudulent or false as to any material matter with the intent of obtaining or assisting another person in obtaining any credit, refund, deduction, exemption or reduction in tax not otherwise permitted by this chapter or article thirteen-c, chapter eight of this code; or (3) willfully attempts in any other manner to evade any tax imposed by this chapter or article thirteen-c, chapter eight of this code or the payment thereof, is guilty of a felony and, notwithstanding any other provision of the code, upon conviction thereof, shall be fined not less than one thousand dollars nor more than ten thousand dollars or imprisoned in the penitentiary a correctional facility not less than one nor more than three years or, in the discretion of the court, be confined in the county jail not more than one year, or both fined and imprisoned.
ARTICLE 10. PROCEDURE AND ADMINISTRATION.
§11-10-3. Application of this article.
  (a) The provisions of this article apply to inheritance and transfer taxes, estate tax and interstate compromise and arbitration of inheritance and death taxes, business registration tax, annual tax on incomes of certain carriers, minimum severance tax on coal, corporate license tax, business and occupation tax, severance tax, telecommunications tax, interstate fuel tax, consumers sales and service tax, use tax, tobacco products excise tax, soft drinks tax, personal income tax, business franchise tax, corporation net income tax, gasoline and special fuels excise tax, motor fuels excise tax, motor carrier road tax, health care provider tax and tax relief for elderly homeowners and renters administered by the state tax commissioner. This article shall not apply to ad valorem taxes on real and personal property or any other tax not listed in this section, except that in the case of ad valorem taxes on real and personal property, when any return, claim, statement or other document is required to be filed, or any payment is required to be made within a prescribed period or before a prescribed date, and the applicable law requires delivery to the office of the sheriff of a county of this state, the methods prescribed in section five-f of this article for timely filing and payment to the tax commissioner or state tax department are the same methods utilized for timely filing and payment with the sheriff.
  (b) The provisions of this article apply to beer barrel tax levied by article sixteen of this chapter and to wine liter tax levied by section four, article eight, chapter sixty of this code.
  (c) The provisions of this article also apply to any other article of this chapter when the application is expressly provided for by the Legislature.
  (d) The provisions of this article apply to municipal sales and use taxes imposed under article thirteen-c, chapter eight of this code and collected by the tax commissioner.;
  And,
  On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
  Eng. Com. Sub. for Com. Sub. for Senate Bill No. 701--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §8-13C-1, §8-13C-2, §8-13C-3, §8-13C-4, §8-13C-5, §8-13C-5a, §8-13C-6, §8-13C-7, §8-13C-8, §8-13C-9, §8-13C-10, §8-13C-11, §8-13C-12 and §8-13C-13; to amend and reenact §11-9-2, §11-9-3, §11-9-4, §11-9-5, §11-9-6, §11-9-8 and §11-9-10 of said code; and to amend and reenact §11-10-3 of said code, all relating to authorizing a qualifying municipality to impose municipal occupational tax, an alternative municipal sales and service tax and use tax and a pension relief municipal sales and service tax and use tax; establishing responsibilities of tax commissioner relating to the tax; clarifying application of other state tax laws; creating qualifying municipal sales and service tax and use tax fund; providing that tax rate applies to purchases from printed catalogs; limiting use of certain proceeds of the taxes to application toward the unfunded liability of certain pensions; citing instances where qualifying municipalities lose certain taxing authority; limiting increase in pension benefits pending imposition of certain taxes; addressing conflicts and unconstitutionality; establishing prerequisites to imposition of certain taxes; requiring a study by the chief technology officer on the cost of implementing municipal taxes; imposing criminal penalties for certain violations relating to municipal tax; and applying tax procedure and administration act to municipal taxes.
  On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
  Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 701, as amended by the House of Delegates, was then put upon its passage.
  On the passage of the bill, the yeas were: Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--26.
  The nays were: Boley, Guills, Harrison, Love, Rowe, Smith and Weeks--7.
  Absent: Bailey--1.
  So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 701) passed with its House of Delegates title.
  Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
  A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
  Eng. Com. Sub. for Senate Bill No. 197, Relating generally to distribution of net terminal income of racetrack video lottery terminals.
  On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
  The following House of Delegates amendments to the bill were reported by the Clerk:
  On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
  That the code of West Virginia, 1931, as amended, be amended by adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and that §5B-2-12 of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 4. GENERAL SERVICES DIVISION.
§5A-4-5a. Construction of parking garage for general public; creation of fund.

  (a) It is the intent of the Legislature to provide a parking facility for the general public and to direct the secretary of the department of administration to plan and construct a parking garage at the state capitol complex that will provide sufficient and additional parking for the general public.
  (b) There is created the state treasury to be administered by the department of administration a special fund to be named the "2004 capitol complex parking garage fund" in which shall be deposited funds that are appropriated and funds from other sources to be used for the construction and maintenance of a parking garage on or adjacent to the state capitol complex.
§5A-4-6. Distribution of funds.

  Notwithstanding any other provision of this code to the contrary, in each fiscal year beginning after the thirtieth day of June, two thousand four, the provisions directing the distribution of money in subdivision (9), subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code and subdivision (9), subsection (a), section ten-b of said article are superseded by the provisions of this section, except to the extent provided by subdivision (1) of this section, and all of the money described in those subdivisions shall be distributed as follows:
  (1) Five hundred thousand dollars of the one percent of net terminal income distributed by the provisions of subdivision (9), subsection (c), section ten, article twenty-two-a, chapter twenty- nine of this code shall continue to be deposited pursuant to the provisions of said subdivision in the state treasury in the special fund of the department of administration, created under section five of this article to be used for construction and maintenance of a parking garage on the state capitol complex.
  (2) Of the total of the one percent of net terminal income otherwise directed to be distributed by the provisions of subdivision (9), subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code and the one percent of net terminal income otherwise directed to be distributed by the provisions of subdivision (9), subsection (a), section ten-b of said article, the money shall be deposited in equal amounts in the capitol dome and improvements fund created under section two, article four, chapter five-a of this code and cultural facilities and capitol resources matching grant program fund created under section three, article one of this chapter until a total of one million five hundred thousand dollars is deposited into the cultural facilities and capitol resources matching grant program fund; thereafter, the money shall be deposited until a total of four million dollars is deposited into the capitol dome and improvements fund.
  (3) After the requirements of subdivisions (1) and (2) of this section have been fulfilled, any remaining amounts of the one percent of net terminal income otherwise directed to be distributed by the provisions of subdivision (9), subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code and the one percent of net terminal income otherwise directed to be distributed by the provisions of subdivision (9), subsection (a), section ten-b of said article shall be deposited into the revenue shortfall reserve fund created pursuant to the provisions of section twenty, article two of this chapter.

§5A-4-7. Renovation and improvement of capitol building and capitol complex.

  (a) It is the intent of the Legislature to provide renovation and improvement of the existing state capitol building and the capitol complex and to direct the secretary of the department of administration to plan and make renovations and improvements of the existing state capitol building and the capitol complex for the purpose of reversing deterioration to existing facilities, securing the safety of the general public and state employees, promoting efficiency of governmental operations and to enhance tourism in the state.
  (b) There is created the state treasury to be administered by the department of administration a special fund to be named the "capitol renovation and improvement fund" in which shall be deposited funds that are appropriated and funds from other sources to be used for renovations and improvements of the existing state capitol building and the capitol complex.

CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund continued; use of funds.
  There is hereby continued in the state treasury the special revenue fund known as the "tourism promotion fund" created under prior enactment of section nine, article one of this chapter.
  (a) A minimum of five percent of the moneys deposited in the fund each year shall be used solely for direct advertising for West Virginia travel and tourism: Provided, That no less than twenty percent of these funds be expended with the approval of the director of the division of natural resources to effectively promote and market the state's parks, state forests, state recreation areas and wildlife recreational resources. Direct advertising means advertising which is limited to television, radio, mailings, newspaper, magazines and outdoor billboards, or any combination thereof.
  (b) The balance of the moneys deposited in the fund shall be used for direct advertising within the state's travel regions as defined by the commission. The funds shall be made available to these districts beginning the first day of July, one thousand nine hundred ninety-five, according to legislative rules promulgated authorized for promulgation
by the tourism commission. Provided, That emergency rules for the distribution of funds for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-six, are specifically authorized; and
  (c) All advertising expenditures over twenty-five thousand dollars from the tourism promotion fund require prior approval by recorded vote of the commission.
No member of the commission or of any committee created by the commission to evaluate applications for advertising or other grants may participate in the discussion of, or action upon, an application for or an award of any grant in which the member has a direct financial interest.
__(d) Notwithstanding any other provision of this code to the contrary, in each fiscal year beginning after the thirtieth day of June, two thousand four, the total amount of money that may be received by the tourism promotion fund pursuant to the provisions of sections ten and ten-b, article twenty-two-a, chapter twenty- nine of this code is ten million dollars and any money exceeding ten million dollars that would otherwise be received by the tourism promotion fund pursuant to said sections
shall instead be distributed as follows:
__(1) Not more than five hundred thousand dollars shall be deposited in the state treasury in a special fund of the department of administration, created under section five-a, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on or adjacent to
the state capitol complex ;
__(2) Not more than five million dollars shall be deposited in the state treasury in a special fund of the department of administration, created under section seven, article four, chapter five-a of this code
, to be used for renovation and improvement of the existing state capitol building and the capitol complex; and
__(3)
The remainder of the money shall be deposited into the revenue shortfall reserve fund created pursuant to the provisions of section twenty, article two, chapter five-a of this code. ;
  And,
  On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
  Eng. Com. Sub. for Senate Bill No. 197--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; and to amend and reenact §5B-2-12 of said code, all relating to funding specific activities; creating of a fund to be used for the construction and maintenance of a parking garage; distributing of net terminal income to funds for the construction and maintenance of parking garages, to the capitol dome and improvements fund, to the cultural facilities and capitol resources matching grant program fund, to the capitol renovation and improvement fund, to the tourism promotion fund and to the revenue shortfall reserve fund; creating of a fund for renovations and improvements of the existing state capitol building and the capitol complex; and prohibiting members of the tourism commission from
participating in the discussion of, or action upon, an application for or an award of any grant in which the member has a direct financial interest .
  On motion of Senator Helmick, the following amendments to the House of Delegates amendments to the bill (Eng. Com. Sub. for S. B. No. 197) were reported by the Clerk, considered simultaneously, and adopted:
  On page one, by striking out everything after the chapter heading and inserting in lieu thereof the following:
ARTICLE 4. GENERAL SERVICES DIVISION.
§5A-4-5a. Construction of parking garage for general public; creation of fund.

  (a) It is the intent of the Legislature to provide a parking facility for the general public and to direct the secretary of the department of administration to plan and construct a parking garage at the state capitol complex that will provide sufficient and additional parking exclusively for the general public.
  (b) There is created the state treasury to be administered by the department of administration a special fund to be named the "2004 capitol complex parking garage fund" in which shall be deposited funds that are appropriated and funds from other sources to be used for the construction and maintenance of a parking garage on or adjacent to the state capitol complex.
§5A-4-6. Distribution of funds.
  Notwithstanding any other provision of this code to the contrary, in each fiscal year beginning after the thirtieth day of June, two thousand four, the total amount of the remainder of the one percent of net terminal income described in subparagraph (ii), paragraph (B), subdivision (9), subsection (c), section ten, article twenty-two-a, chapter twenty-nine of this code and all of the one percent of net terminal income described in subdivision (9), subsection (a), section ten-b of said article shall be distributed as follows:
  Equal amounts of the total shall be deposited in the capitol dome and improvements fund created under section two of this article and cultural facilities and capitol resources matching grant program fund created under section three, article one of this chapter until a total of one million five hundred thousand dollars is deposited into the cultural facilities and capitol resources matching grant program fund; thereafter, the remainder shall be deposited into the capitol dome and improvements fund.
§5A-4-7. Renovation and improvement of capitol building and capitol complex.

  (a) It is the intent of the Legislature to provide renovation and improvement of the existing state capitol building and the capitol complex and to direct the secretary of the department of administration to plan and make renovations and improvements of the existing state capitol building and the capitol complex for the purpose of reversing deterioration to existing facilities, securing the safety of the general public and state employees, promoting efficiency of governmental operations and to enhance tourism in the state.
  (b) There is created the state treasury to be administered by the department of administration a special fund to be named the "capitol renovation and improvement fund" in which shall be deposited funds that are appropriated and funds from other sources to be used for renovations and improvements of the existing state capitol building and the capitol complex.
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.
§5B-2-12. Tourism promotion fund continued; use of funds.
  There is hereby continued in the state treasury the special revenue fund known as the "tourism promotion fund" created under prior enactment of section nine, article one of this chapter.
  (a) A minimum of five percent of the moneys deposited in the fund each year shall be used solely for direct advertising for West Virginia travel and tourism: Provided, That no less than twenty percent of these funds be expended with the approval of the director of the division of natural resources to effectively promote and market the state's parks, state forests, state recreation areas and wildlife recreational resources. Direct advertising means advertising which is limited to television, radio, mailings, newspaper, magazines and outdoor billboards, or any combination thereof.
  (b) The balance of the moneys deposited in the fund shall be used for direct advertising within the state's travel regions as defined by the commission. The funds shall be made available to these districts beginning the first day of July, one thousand nine hundred ninety-five, according to legislative rules promulgated authorized for promulgation by the tourism commission. : Provided, That emergency rules for the distribution of funds for the fiscal year ending the thirtieth day of June, one thousand nine hundred ninety-six, are specifically authorized; and
  (c) All advertising expenditures over twenty-five thousand dollars from the tourism promotion fund require prior approval by recorded vote of the commission. No member of the commission or of any committee created by the commission to evaluate applications for advertising or other grants may participate in the discussion of, or action upon, an application for or an award of any grant in which the member has a direct financial interest.
__(d) Notwithstanding any other provision of this code to the contrary:
__(1) In the fiscal year beginning the first day of July, two thousand four, the total amount of the three percent of net terminal income described in paragraph (B), subdivision (8), subsection (c), section ten, article twenty-two-a, chapter twenty- nine of this code and the three percent of net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of said article shall be distributed as follows:
__(A) Not more than six million dollars shall be deposited in the tourism promotion fund;
__(B) Not more than five hundred thousand dollars shall be deposited in the state treasury in a special fund of the department of administration, created under section five-a, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on or adjacent to the state capitol complex;
__(C) Not more than five million five hundred thousand dollars shall be deposited in the state treasury in a special fund of the department of administration, created under section seven, article four, chapter five-a of this code, to be used for renovation and improvement of the existing state capitol building and the capitol complex; and
__(D) The remainder of the three percent of net terminal income shall be available only upon appropriation by the Legislature as part of the state budget.
__(2) In each fiscal year beginning after the thirtieth day of June, two thousand five, the total amount of the three percent of net terminal income described in paragraph (B), subdivision (8), subsection (c), section ten, article twenty-two-a, chapter twenty- nine of this code and the three percent of net terminal income described in paragraph (B), subdivision (9), subsection (a), section ten-b of said article shall be distributed as follows:
__(A) Not more than eleven million dollars shall be deposited in the tourism promotion fund;
__(B) Not more than five hundred thousand dollars shall be deposited in the state treasury in a special fund of the department of administration, created under section five-a, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on or adjacent to the state capitol complex;
__(C) Not more than five million five hundred thousand dollars shall be deposited in the state treasury in a special fund of the department of administration, created under section seven, article four, chapter five-a of this code, to be used for renovation and improvement of the existing state capitol building and the capitol complex; and
__(D) The remainder of the three percent of net terminal income shall be available only upon appropriation by the Legislature as part of the state budget.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10. Accounting and reporting; commission to provide communications protocol data; distribution of net terminal income; remittance through electronic transfer of funds; establishment of accounts and nonpayment penalties; commission control of accounting for net terminal income; settlement of accounts; manual reporting and payment may be required; request for reports; examination of accounts and records.

     (a) The commission shall provide to manufacturers, or applicants applying for a manufacturer's permit, the protocol documentation data necessary to enable the respective manufacturer's video lottery terminals to communicate with the commission's central computer for transmitting auditing program information and for activation and disabling of video lottery terminals.
     (b) The gross terminal income of a licensed racetrack shall be remitted to the commission through the electronic transfer of funds. Licensed racetracks shall furnish to the commission all information and bank authorizations required to facilitate the timely transfer of moneys to the commission. Licensed racetracks must provide the commission thirty days' advance notice of any proposed account changes in order to assure the uninterrupted electronic transfer of funds. From the gross terminal income remitted by the licensee to the commission, the commission shall deduct an amount sufficient to reimburse the commission for its actual costs and expenses incurred in administering racetrack video lottery at the licensed racetrack and the resulting amount after the deduction is the net terminal income. The amount deducted for administrative costs and expenses of the commission may not exceed four percent of gross terminal income: Provided, That any amounts deducted by the commission for its actual costs and expenses that exceeds its actual costs and expenses shall be deposited into the state lottery fund. For all fiscal years beginning on or after the first day of July, two thousand one, the commission shall not receive an amount of gross terminal income in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, but four percent of any amount of gross terminal income received in excess of the amount of gross terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be deposited into the fund established in section eighteen-a, article twenty-two of this chapter.
     (c) Net terminal income shall be divided as set out in this subsection. For all fiscal years beginning on or after the first day of July, two thousand one, any amount of net terminal income received in excess of the amount of net terminal income received during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as set out in section ten-b of this article. The licensed racetrack's share is in lieu of all lottery agent commissions and is considered to cover all costs and expenses required to be expended by the licensed racetrack in connection with video lottery operations. The division shall be made as follows:
     (1) The commission shall receive thirty percent of net terminal income, which shall be paid into the state lottery fund as provided in section ten-a of this article;
     (2) Fourteen percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided for in article twenty-three, chapter nineteen of this code;
     (3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:
     (A) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any Any amount in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West Virginia thoroughbred development fund since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:
     (i) The county shall receive fifty percent of the excess amount; and
     (ii) The municipalities of the county shall receive fifty percent of the excess amount, the fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and
     (B) Beginning the first day of July, one thousand nine hundred ninety-nine, and thereafter, any Any amount in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable, as follows:
     (i) The county shall receive fifty percent of the excess amount; and
     (ii) The municipality shall receive fifty percent of the excess amount; and
     (C) This proviso shall not affect the amount to be received under this subdivision by any county other than a county described in paragraph (A) or (B) of this subdivision;
     (4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the racing commission to be used for payment into the pension plan for all employees of the licensed racing association;
     (5) The West Virginia thoroughbred development fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income: Provided, That for any racetrack which does not have a breeder's program supported by the thoroughbred development fund or the greyhound breeding development fund, the one and one-half percent provided for in this subdivision shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided for in subdivision (2) of this subsection and article twenty-three, chapter nineteen of this code;
     (6) The West Virginia racing commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code;
     (7) A licensee shall receive forty-seven percent of net terminal income;
     (8)(A) The tourism promotion fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income: Provided, That for the fiscal year beginning the first day of July, two thousand three, the tourism commission shall transfer from the tourism promotion fund no more than five million dollars of the three percent of the net terminal income into the fund administered by the West Virginia economic development authority pursuant to section seven, article fifteen, chapter thirty-one of this code; and
_____(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income shall be distributed pursuant to the provisions of subsection (d), section twelve, article two, chapter five-b of this code
; and
     (9)  The remaining one percent of net terminal income shall be deposited as follows:
_____(A) For the fiscal year beginning the first day of July, two thousand three the,
The veterans memorial program shall receive that one percent of the net terminal income until sufficient moneys have been received to complete the veterans memorial on the grounds of the state capitol complex in Charleston, West Virginia. The moneys shall be deposited in the state treasury in the division of culture and history special fund created under section three, article one-i, chapter twenty-nine of this code: Provided, That only after sufficient moneys have been deposited in the fund to complete the veterans memorial and to pay in full the annual bonded indebtedness on the veterans memorial, not more than twenty thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited into a special revenue fund in the state treasury, to be known as the "John F. 'Jack' Bennett Fund". The moneys in this fund shall be expended by the division of veterans affairs to provide for the placement of markers for the graves of veterans in perpetual cemeteries in this state. The division of veterans affairs shall promulgate legislative rules pursuant to the provisions of article three, chapter twenty-nine-a of this code specifying the manner in which the funds are spent, determine the ability of the surviving spouse to pay for the placement of the marker and setting forth the standards to be used to determine the priority in which the veterans grave markers will be placed in the event that there are not sufficient funds to complete the placement of veterans grave markers in any one year, or at all. Upon payment in full of the bonded indebtedness on the veterans memorial, one hundred thousand dollars of the one percent of net terminal income provided for in this subdivision shall be deposited in the special fund in the division of culture and history created under section three, article one-i, chapter twenty-nine of this code and be expended by the division of culture and history to establish a West Virginia veterans memorial archives within the cultural center to serve as a repository for the documents and records pertaining to the veterans memorial, to restore and maintain the monuments and memorial on the capitol grounds: Provided, however, That five hundred thousand dollars of the one percent of net terminal income shall be deposited in the state treasury in a special fund of the department of administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state capitol complex; and Provided further, That the remainder of the one percent of net terminal income shall be deposited in equal amounts in the capitol dome and improvements fund created under section two, article four, chapter five-a of this code and cultural facilities and capitol resources matching grant program fund created under section three, article one of this chapter.
     (B) For each fiscal year beginning after the thirtieth day of June, two thousand four:
_____(i) Five hundred thousand dollars of the one percent of net terminal income shall be deposited in the state treasury in a special fund of the department of administration, created under section five, article four, chapter five-a of this code, to be used for construction and maintenance of a parking garage on the state capitol complex; and
_____(ii) The remainder of the one percent of net terminal income shall be distributed pursuant to the provisions of section six, article four, chapter five-a of this code.

     (d) Each licensed racetrack shall maintain in its account an amount equal to or greater than the gross terminal income from its operation of video lottery machines, to be electronically transferred by the commission on dates established by the commission. Upon a licensed racetrack's failure to maintain this balance, the commission may disable all of a licensed racetrack's video lottery terminals until full payment of all amounts due is made. Interest shall accrue on any unpaid balance at a rate consistent with the amount charged for state income tax delinquency under chapter eleven of this code. The interest shall begin to accrue on the date payment is due to the commission.
     (e) The commission's central control computer shall keep accurate records of all income generated by each video lottery terminal. The commission shall prepare and mail to the licensed racetrack a statement reflecting the gross terminal income generated by the licensee's video lottery terminals. Each licensed racetrack shall report to the commission any discrepancies between the commission's statement and each terminal's mechanical and electronic meter readings. The licensed racetrack is solely responsible for resolving income discrepancies between actual money collected and the amount shown on the accounting meters or on the commission's billing statement.
     (f) Until an accounting discrepancy is resolved in favor of the licensed racetrack, the commission may make no credit adjustments. For any video lottery terminal reflecting a discrepancy, the licensed racetrack shall submit to the commission the maintenance log which includes current mechanical meter readings and the audit ticket which contains electronic meter readings generated by the terminal's software. If the meter readings and the commission's records cannot be reconciled, final disposition of the matter shall be determined by the commission. Any accounting discrepancies which cannot be otherwise resolved shall be resolved in favor of the commission.
     (g) Licensed racetracks shall remit payment by mail if the electronic transfer of funds is not operational or the commission notifies licensed racetracks that remittance by this method is required. The licensed racetracks shall report an amount equal to the total amount of cash inserted into each video lottery terminal operated by a licensee, minus the total value of game credits which are cleared from the video lottery terminal in exchange for winning redemption tickets, and remit the amount as generated from its terminals during the reporting period. The remittance shall be sealed in a properly addressed and stamped envelope and deposited in the United States mail no later than noon on the day when the payment would otherwise be completed through electronic funds transfer.
     (h) Licensed racetracks may, upon request, receive additional reports of play transactions for their respective video lottery terminals and other marketing information not considered confidential by the commission. The commission may charge a reasonable fee for the cost of producing and mailing any report other than the billing statements.
     (i) The commission has the right to examine all accounts, bank accounts, financial statements and records in a licensed racetrack's possession under its control or in which it has an interest and the licensed racetrack shall authorize all third parties in possession or in control of the accounts or records to allow examination of any of those accounts or records by the commission.
§29-22A-10b. Distribution of excess net terminal income.
     (a) For all years beginning on or after the first day of July, two thousand one, any amount of net terminal income generated annually by a licensed racetrack in excess of the amount of net terminal income generated by that licensed racetrack during the fiscal year ending on the thirtieth day of June, two thousand one, shall be divided as follows:
     (1) The commission shall receive forty-one percent of net terminal income, which the commission shall deposit in the state excess lottery revenue fund created in section eighteen-a, article twenty-two of this chapter;
     (2) Eight percent of net terminal income at a licensed racetrack shall be deposited in the special fund established by the licensee and used for payment of regular purses in addition to other amounts provided for in article twenty-three, chapter nineteen of this code;
     (3) The county where the video lottery terminals are located shall receive two percent of the net terminal income: Provided, That:
     (A) Any amount by which the total amount under this section and subdivision (3), subsection (c), section ten of this article is in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack is located that has participated in the West Virginia thoroughbred development fund since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided as follows:
     (i) The county shall receive fifty percent of the excess amount; and
     (ii) The municipalities of the county shall receive fifty percent of the excess amount, the fifty percent to be divided among the municipalities on a per capita basis as determined by the most recent decennial United States census of population; and
     (B) Any amount by which the total amount under this section and subdivision (3), subsection (c), section ten of this article is in excess of the two percent received during fiscal year one thousand nine hundred ninety-nine by a county in which a racetrack other than a racetrack described in paragraph (A) of this proviso is located and where the racetrack has been located in a municipality within the county since on or before the first day of January, one thousand nine hundred ninety-nine, shall be divided, if applicable, as follows:
     (i) The county shall receive fifty percent of the excess amount; and
     (ii) The municipality shall receive fifty percent of the excess amount; and
     (C) This proviso shall not affect the amount to be received under this subdivision by any county other than a county described in paragraph (A) or (B) of this proviso;
     (4) One half of one percent of net terminal income shall be paid for and on behalf of all employees of the licensed racing association by making a deposit into a special fund to be established by the racing commission to be used for payment into the pension plan for all employees of the licensed racing association;
     (5) The West Virginia thoroughbred development fund created under section thirteen-b, article twenty-three, chapter nineteen of this code and the West Virginia greyhound breeding development fund created under section ten of said article shall receive an equal share of a total of not less than one and one-half percent of the net terminal income: Provided, That for any racetrack which does not have a breeder's program supported by the thoroughbred development fund or the greyhound breeding development fund, the one and one-half percent provided for in this subdivision shall be deposited in the special fund established by the licensee and used for payment of regular purses, in addition to other amounts provided for in subdivision (2) of this subsection and article twenty-three, chapter nineteen of this code;
     (6) The West Virginia racing commission shall receive one percent of the net terminal income which shall be deposited and used as provided in section thirteen-c, article twenty-three, chapter nineteen of this code;
     (7) A licensee shall receive forty-two percent of net terminal income;
     (8) The tourism promotion fund established in section twelve, article two, chapter five-b of this code shall receive three percent of the net terminal income: Provided, That for each fiscal year beginning after the thirtieth day of June, two thousand four, this three percent of net terminal income shall be distributed pursuant to the provisions of subsection (d), section twelve, article two, chapter five-b of this code; and
     (9)(A) One percent of the net terminal income shall be deposited in equal amounts in the capitol dome and improvements fund created under section two, article four, chapter five-a of this code and cultural facilities and capitol resources matching grant program fund created under section three, article one of this chapter; and
_____(B) Notwithstanding any provision of paragraph (A) of this subdivision to the contrary, for each fiscal year beginning after the thirtieth day of June, two thousand four, this one percent of net terminal income shall be distributed pursuant to the provisions of section six, article four, chapter five-a of this code.

     (b) The commission may establish orderly and effective procedures for the collection and distribution of funds under this section in accordance with the provisions of this section and section ten of this article.;
     On page one, by striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
     That the code of West Virginia, 1931, as amended, be amended by adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; that §5B-2-12 of said code be amended and reenacted; and that §29-22A-10 and §29-22A-10b of said code be amended and reenacted, all to read as follows:;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 197--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto three new sections, designated §5A-4-5a, §5A-4-6 and §5A-4-7; to amend and reenact §5B-2-12 of said code; and to amend and reenact §29- 22A-10 and §29-22A-10b of said code, all relating generally to distribution of net terminal income of racetrack video lottery terminals for funding purposes; creating of a fund to be used for the construction and maintenance of a parking garage; distributing net terminal income to funds for the construction and maintenance of parking garages, to the capitol dome and improvements fund, to the cultural facilities and capitol resources matching grant program fund, to the capitol renovation and improvement fund, to the tourism promotion fund and to purposes determined by appropriation in the state budget; creating of a fund for renovations and improvements of the existing state capitol building and the capitol complex; and prohibiting members of the tourism commission from participating in the discussion of, or action upon, an application for or an award of any grant in which the member has a direct financial interest.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments, as amended.
     Engrossed Committee Substitute for Senate Bill No. 197, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--27.
     The nays were: Guills, Harrison, Rowe, Smith, Sprouse and Weeks--6.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 197) passed with its Senate amended title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Snyder, Unger, White and Tomblin (Mr. President)--27.
     The nays were: Guills, Harrison, Rowe, Smith, Sprouse and Weeks--6.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 197) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 408, Relating generally to levies by county boards of education and expenditure of property taxes collected.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page four, section six-f, line forty, after the word "subdivision" by changing the colon to a period and striking out the following proviso: Provided, however, That the rate of levy for county boards of education for the fiscal year beginning on the first day of July, two thousand four, shall be equal to the rate of levy set forth in section six-c of this article.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 408, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--30.
     The nays were: Harrison, Smith and Weeks--3.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 408) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Snyder, Sprouse, Unger, White and Tomblin (Mr. President)--30.
     The nays were: Harrison, Smith and Weeks--3.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 408) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 513, Relating to jobs investment trust board.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 7. JOBS INVESTMENT TRUST FUND.
§12-7-4. Jobs investment trust board; composition; appointment, term of private members; chairman; quorum.

  (a) The jobs investment trust board is continued. The board is a public body corporate and established to improve and otherwise promote economic development in this state.
  (b) The board consists of thirteen members, five of whom serve by virtue of their respective positions. These five are the president of West Virginia university or his or her designee; the president of Marshall university or his or her designee; the chancellor of the higher education policy commission or his or her designee; the executive director of the West Virginia housing development fund; and the executive director of the West Virginia development office. One member shall be appointed by the governor from a list of two names submitted by the board of directors of the housing development fund. One member shall be appointed by the governor from a list of two names submitted by the commissioner of the division of tourism. The other six members shall be appointed from the general public by the governor. Of the members of the general public appointed by the governor, one shall be an attorney with experience in finance and investment matters, one shall be a certified public accountant, one shall be a representative of labor, one shall be experienced or involved in innovative business development and two shall be present or past executive officers of companies listed on a major stock exchange or large privately held companies: Provided, That all appointments made pursuant to the provisions of this article shall be by and with the advice and consent of the Senate.
  (c) A vacancy on the board shall be filled by appointment by the governor for the unexpired term in the same manner as the original appointment. Any person appointed to fill a vacancy serves only for the unexpired term.
  (d) The governor may remove any appointed member in case of incompetency, neglect of duty, moral turpitude or malfeasance in office and the governor may declare the office vacant and fill the vacancy as provided in other cases of vacancy.
  (e) The chairman of the board shall be elected by the board from among the members of the board.
  (f) Seven members of the board is a quorum. No action may be taken by the board except upon the affirmative vote of at least a majority of those members present or participating by such any other means as described in subsection (g) of this section, but in no event fewer than six of the members serving on the board.
  (g) Members of the board may participate in a meeting of the board by means of conference telephone or similar communication equipment by means of which all persons participating in the meeting can hear each other and participation in a board meeting pursuant to this subsection shall constitute constitutes presence in person at such the meeting.
  (h) The members of the board, including the chairman, may receive no compensation for their services as members of the board, but are entitled to their reasonable and necessary expenses actually incurred in discharging their duties under this article.
  (i) The board shall meet on a quarterly basis or more often if necessary.
  (j) The terms of the board members appointed by the governor first taking office on or after the one thousand nine hundred ninety-two effective date of the jobs investment trust act expired as designated by the governor at the time of the nomination, two at the end of the first year, two at the end of the second year, two at the end of the third year and two at the end of the fourth year. These original appointments were for, and each subsequent appointment was and shall be for, a full governor shall appoint a member for a four-year term. Any member whose term has expired serves until his or her successor has been duly appointed and qualified. Any member is eligible for reappointment.
  (k) Additionally, one member of the West Virginia House of Delegates, to be appointed by the speaker of the House of Delegates, and one member of the West Virginia Senate, to be appointed by the president of the Senate, shall serve as advisory members of the jobs investment trust board and, as advisory members, shall be ex officio, nonvoting advisory members. The governor shall appoint the two legislative ex officio advisory members who shall serve for four years or such shorter time as he or she continues to be a West Virginia legislator.
§12-7-6. Corporate powers.
  The board has the power may:
  (1) (i) To make Make loans to eligible businesses with or without interest secured if and as required by the board; and (ii) acquire ownership interests in eligible businesses. These investments may be made in eligible businesses that stimulate economic growth and provide or retain jobs in this state and shall be made only upon the determination by the board that the investments are prudent and meet the criteria established by the board;
  (2) To accept Accept appropriations, gifts, grants, bequests and devises and use or dispose of them to carry out its corporate purposes;
  (3) To make Make and execute contracts, releases, compromises, agreements and other instruments necessary or convenient for the exercise of its powers or to carry out its corporate purposes;
  (4) To collect Collect reasonable fees and charges in connection with making and servicing loans, notes, bonds, obligations, commitments and other evidences of indebtedness, in connection with making equity investments and in connection with providing technical, consultative and project assistance services;
  (5) To sue Sue and be sued;
  (6) To make Make, amend and repeal bylaws and rules consistent with the provisions of this article;
  (7) To hire Hire its own employees, whom shall be employees of the state of West Virginia for purposes of articles ten and sixteen, chapter five of this code, and appoint officers and consultants and fix their compensation and prescribe their duties;
  (8) To acquire Acquire, hold and dispose of real and personal property for its corporate purposes;
  (9) To enter Enter into agreements or other transactions with any federal or state agency, college or university, any person and any domestic or foreign partnership, corporation, association or organization;
  (10) To acquire Acquire real and personal property, or an interest in real or personal property, in its own name, by purchase or foreclosure when acquisition is necessary or appropriate to protect any loan in which the board has an interest; sell, transfer and convey any real or personal property to a buyer; and, in the event a sale, transfer or conveyance cannot be effected with reasonable promptness or at a reasonable price, lease real or personal property to a tenant;
  (11) To purchase Purchase, sell, own, hold, negotiate, transfer or assign: (i) Any mortgage, instrument, note, credit, debenture, guarantee, bond or other negotiable instrument or obligation securing a loan, or any part of a loan; (ii) any security or other instrument evidencing ownership or indebtedness; or (iii) equity or other ownership interest. An offering of one of the above these instruments shall include the representation and qualification that the board is a public body corporate managing a venture capital fund that includes high-risk investments and that in any transfer, sale or assignment of any interest, the transferee, purchaser or assignee accepts any risk without recourse to the jobs investment trust or to the state;
  (12) To procure Procure insurance against losses to its property in amounts, and from insurers, as is prudent;
  (13) To consent Consent, when prudent, to the modification of the rate of interest, time of maturity, time of payment of installments of principal or interest or any other terms of the investment, loan, contract or agreement in which the board is a party;
  (14) To establish Establish training and educational programs to further the purposes of this article;
  (15) To file File its own travel rules;
  (16) To borrow Borrow money to carry out its corporate purpose in principal amounts and upon terms as are necessary to provide sufficient funds for achieving its corporate purpose;
  (17) To take Take options in or warrants for, subscribe to, acquire, purchase, own, hold, transfer, sell, vote, employ, mortgage, pledge, assign, pool or syndicate: (i) Any loans, notes, mortgages or securities; (ii) debt instruments, ownership certificates or other instruments evidencing loans or equity; or (iii) securities or other ownership interests of or in domestic or foreign corporations, associations, partnerships, limited partnerships, limited liability partnerships, limited liability companies, joint ventures or other private enterprise to foster economic growth, jobs preservation and creation in the state of West Virginia and all other acts that carry out the board's purpose;
  (18) To contract Contract with either Marshall university or West Virginia university, or both, for the purpose of retaining the services of, and paying the reasonable cost of, services performed by the institution for the board in order to effectuate the purposes of this article;
  (19) To enter Enter into collaborative arrangements or contracts with private venture capital companies when considered advisable by the board;
  (20) To provide Provide equity financing for any eligible business that will stimulate economic growth and provide or retain jobs in this state and hold, transfer, sell, assign, pool or syndicate, or participate in the syndication of, any loans, notes, mortgages, securities, debt instruments or other instruments evidencing loans or equity interest in furtherance of the board's corporate purposes;
  (21) To form Form partnerships, create subsidiaries or take all other actions necessary to qualify as a small business investment company under the United States Public Law (85-699) Small Business Investment Act, as amended; and
  (22) To provide Provide for staff payroll and make purchases in the same manner as the housing development fund;
  (23) Indemnify its members, directors, officers, employees and agents relative to actions and proceedings to which they have been made parties and make advances for expenses relative thereto and purchase and maintain liability insurance on behalf of those persons all to the same extent as authorized for West Virginia business corporations under present or future laws of the state applicable to business corporations generally; and
__
(24) Contract for the provision of legal services by private counsel and, notwithstanding the provisions of article three, chapter five of this code, counsel may, but is not limited to, represent the board in court, negotiate contracts and other agreements on behalf of the board, render advice to the board on any matter relating thereto, prepare contracts and other agreements and provide any other legal services requested by the board.
§12-7-8a. New millennium fund; new millennium fund promissory notes; nonincentive tax credits; rulemaking.

  (a) The new millennium fund is established continued to permit the board to better fulfill its mission to mobilize financing and capital for emerging, expanding and restructuring businesses in the state. New millennium fund moneys are to consist of all appropriations for use by the jobs investment trust board made by the Legislature subsequent to the thirty-first day of December, one thousand nine hundred ninety-nine, and funds borrowed from private or institutional lenders by the board through the issuance of promissory notes. Fund moneys may be held in a separate account or accounts by or at the West Virginia housing development fund for the board until the board disburses any portion of the funds. Fund moneys that are not set aside or otherwise designated for paying interest on the promissory notes may be used by the board in accordance with and to effectuate the purposes of this article. The board may impose reasonable fees and charges associated with its investment of funds from the new millennium fund in eligible businesses to be paid in any combination of money, warrants or equity interests.
  (b) Without limiting the powers otherwise enumerated in this article, the board has the power to may: (1) Sell and transfer portions of the nonincentive tax credits created, issued and transferred to the board pursuant to the provisions of this section to contracting taxpayers and/or their assigns in return for the payments described in subsection (f) of this section; (2) issue or provide promissory notes on loans made to the board having terms of up to ten years on a zero-coupon basis or otherwise; (3) enter into put options or similar commitment contracts with taxpayers that would be for terms of up to ten years committing, at the board's option, to sell and transfer to the contracting taxpayers or their assigns at the end of the term and as soon after the term as is reasonable under the circumstances portions of the nonincentive tax credits created, issued and transferred to the board pursuant to this section; (4) grant, transfer and assign the benefits of the put options or similar commitment contracts as collateral to secure the board's obligations pursuant to its promissory notes; and (5) satisfy the board's payment obligations under its promissory notes from assets of the board, other than the benefits of the put options or similar commitment contracts, then to effect a corresponding cancellation of the board's related nonincentive tax credit commitment; and (6) satisfy the board's payment obligations under its promissory notes from the benefits of the put options or similar commitment contracts, then to effect a corresponding sale and transfer of nonincentive tax credits. The terms and conditions of the promissory notes, put options or similar commitment contracts shall be consistent with the purposes of this section, and approved by board resolution, and may be different for separate transactions.
  (c) Without limiting the powers otherwise enumerated in this article and with regard to the new millennium fund, the board has and may exercise all powers necessary to further the purposes of this section, including, but not limited to, the power to commit, sell and transfer nonincentive tax credits up to the total amount of thirty million dollars.
  (d) The board may issue its promissory notes pursuant to this section in amounts totaling no more than six million dollars in each of the fiscal years ending in two thousand one, two thousand two, two thousand three, two thousand four and two thousand five and may issue its nonincentive tax credit commitments in amounts totaling no more than six million dollars in each of the fiscal years ending in two thousand one, two thousand two, two thousand three, two thousand four and two thousand five. The board may agree to sell and transfer, at its option, nonincentive tax credits to taxpayers ten years after the date of its commitments, and as soon thereafter as it is reasonable under the circumstances.
  (e) Prior to committing to the sale and transfer of any nonincentive tax credits, the board shall first determine that:
  (1) The new millennium fund moneys to be received in relationship to the commitment shall be used for the development, promotion and expansion of the economy of the state; and
  (2) The existence and pledge of a put option or similar commitment contract that is supported by the nonincentive tax credits that are committed by the board is a material inducement to the private or institutional lender transferring moneys to the board to be placed in the new millennium fund.
  (f) The board may sell and transfer nonincentive tax credits only in conjunction with the satisfaction of its obligations under its promissory notes issued pursuant to this section. Each original sale and transfer of nonincentive tax credits by the board shall be consummated upon payment to the board, or for its benefits, of an amount equal to the dollar amount of the nonincentive tax credits sold and transferred. minus the amount of any federal tax deduction lost by the purchasing taxpayer, if any, resulting from the purchase and projected use of the nonincentive tax credit in satisfying state tax obligations The nonincentive tax credits sold and transferred by the board pursuant to this section shall be claimed as a credit on the tax returns for the year or years in which the nonincentive tax credits are sold and transferred by the board. The amount of the nonincentive tax credit that exceeds the taxpayer's tax liability for the taxable year in the year of the purchase may be carried to succeeding taxable years until used in full up to two years after the year of purchase and may not be carried back to prior taxable years. Any nonincentive tax credit sold and transferred by the board that remains outstanding after the third taxable year subsequent to and including the year of the transfer is forfeited.
  (g) Nonincentive tax credits are created, issued and transferred by the state to the board in a total amount of thirty million dollars to be used by taxpayers, including persons, firms, corporations and all other business entities, to reduce the tax liabilities imposed upon them pursuant to articles twelve-a, thirteen, thirteen-a, thirteen-b, twenty-one, twenty-three and twenty-four, chapter eleven of this code. The total amount of nonincentive tax credits that are created, issued and transferred to the board is thirty million dollars. The nonincentive tax credits are freely transferable to subsequent transferees. The board shall immediately notify the president of the Senate, the speaker of the House of Delegates and the governor in writing if and when any nonincentive tax credits are sold and transferred by the board.
  (h) In conjunction with the department of tax and revenue, the board shall develop a system for: (i) Registering nonincentive tax credits, commitments for the sale and transfer of nonincentive tax credits, the assignments of the commitments and the assignments of the nonincentive tax credits; and (ii) certifying nonincentive tax credits so that when nonincentive tax credits are claimed on a tax return, they may be verified as validly issued by the board, properly taken in the year of claim and in accordance with the requirements of this section.
  (i) The board may promulgate, repeal, amend and change rules consistent with the provisions of this article to carry out the purposes of this section. These rules are not subject to the provisions of chapter twenty-nine-a of this code, but shall be filed with the secretary of state.
§12-7-11. Documentary materials concerning trade secrets; commercial, financial or personal information; confidentiality.

     Any documentary material or data made or received by the board for the purpose of furnishing assistance, to the extent that such the material or data consists of trade secrets, commercial, financial or personal information regarding the financial position or activities of such business or person, shall not be considered public records and shall be exempt from disclosure pursuant to the provisions of chapter twenty-nine-b of this code. Any discussion or consideration of such the trade secrets, commercial, financial or personal information may be held by the board in executive session closed to the public, notwithstanding the provisions of article nine-a, chapter six of this code: Provided, That the board shall make public the following information regarding executed investments: (1) The names and addresses of the principals of the business and its board of directors; (2) the location or locations of the projects; (3) the amount of the investment or financial assistance provided by the board; (4) the purpose of the investment or financial assistance; (5) the maturity, interest rate and other pertinent terms of the investment; (6) the fixed assets which serve as security for the investment; and (7) the names and addresses of all persons holding twenty-five percent or more of the equity of the entity receiving investment assistance: Provided, however, That the board shall keep available in its offices for inspection by any citizen of this state the annual report prepared pursuant to the requirements of section twelve of this article and the annual audit report prepared pursuant to the requirements of sections nine and fourteen of this article.;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 513--A Bill to amend and reenact §12-7-4, §12-7-6, §12-7-8a and §12-7-11 of the code of West Virginia, 1931, as amended, all relating to the jobs investment trust board; expanding board powers; providing for sale or transfer of nonincentive tax credits; and providing that certain documents be available for public inspection.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 513, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 513) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 516, Establishing eastern panhandle highway authority.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, section one, line two, by striking out the word "highway" and inserting in lieu thereof the word "transportation";
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 516--A Bill to establish the West Virginia eastern panhandle transportation authority to include representatives from Berkeley, Jefferson and Morgan counties; appointment of officers; and powers of authority.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 516, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 516) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates
the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Com. Sub. for Senate Bill No. 518, Relating to policemen and firemen required to work during holidays; compensation.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

     That §8-14-2a of the code of West Virginia, 1931, as amended, be amended and reenacted; and that §8-15-10a of said code be amended and reenacted, all to read as follows:
ARTICLE 14. LAW AND ORDER; POLICE FORCE OR DEPARTMENTS; POWERS, AUTHORITY AND DUTIES OF LAW-ENFORCEMENT OFFICIALS AND POLICEMEN; POLICE MATRONS; SPECIAL SCHOOL ZONE AND PARKING LOT OR PARKING BUILDING POLICE OFFICERS; CIVIL SERVICE FOR CERTAIN POLICE DEPARTMENTS.

§8-14-2a. Policemen who are required to work during holidays; how   compensated.
  From the effective date of this section, if any municipal police officer is required to work during a legal holiday as is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the police officer's regular scheduled day off, he shall be
or she is allowed equal time off at such a time as may be approved by the chief of police under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay: Provided, That if a special election of a political subdivision other than a municipality falls on a Saturday or Sunday, the municipality may choose not to recognize the day of the election as a holiday if a majority of the municipality's city council votes not to recognize the day of the election as a holiday .
ARTICLE 15. FIREFIGHTING; FIRE COMPANIES AND DEPARTMENTS; CIVIL SERVICE FOR PAID FIRE DEPARTMENTS.

§8-15-10a. Firemen who are required to work during holidays; how   compensated.
     From the effective date of this section, if any member of a paid fire department is required to work during a legal holiday as is specified in subsection (a), section one, article two, chapter two of this code, or if a legal holiday falls on the member's regular scheduled day off, he or she shall be allowed equal time off at such time as may be approved by the chief executive officer of the department under whom he or she serves or, in the alternative, shall be paid at a rate not less than one and one-half times his or her regular rate of pay: Provided, That if a special election of a political subdivision other than a municipality falls on a Saturday or Sunday, the municipality may choose not to recognize the day of the election as a holiday if a majority of the municipality's city council votes not to recognize the day of the election as a holiday
.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Committee Substitute for Senate Bill No. 518, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 518) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 536, Relating to claims against state.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On
page eight, section one, line ninety-four, before the word "Verizon" by inserting "(1)";
     On page twenty, section one, line three hundred fifty-eight, by striking out "(2)" and inserting in lieu thereof "(1)";
     And,
     On page twenty, section one, line three hundred fifty-nine, by striking out "(n)" and inserting in lieu thereof "(2)".

     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 536, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 536) passed with its title.
     Senator Chafin moved that the bill take effect from passage.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 536) takes effect from passage.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments, as amended by the House of Delegates, passage as amended with its Senate amended title, to take effect July 1, 2004, and requested the concurrence of the Senate in the House of Delegates amendment to the Senate amendments, as to
     Eng. Com. Sub. for House Bill No. 4001, Ensuring safer schools and empowering teachers by automating student suspension and expulsion data.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the Senate amendments to the bill was reported by the Clerk:
     On page nineteen, section five, by striking out all of subsection (k) and inserting in lieu thereof a new subsection (k), to read as follows:
     (i) (k) On-site reviews. --
     (1) At The system of education performance audits shall include on-site reviews of schools and school systems which shall be conducted only at the specific direction of the state board or by weighted selection by the education performance audits, an upon its determination that the performance and progress of the school or school system are persistently below standard or that other circumstances exist that warrant an on-site review.
Any discussion by the state board of schools to be subject to an on-site review or dates for which on-site reviews will be conducted may be held in executive session and is not subject to the provisions of article nine-a, chapter six of this code, relating to open governmental proceedings. An on-site review shall be conducted by the office of education performance audits of any a school or school system for purposes, including, but the purpose of investigating the reasons for performance and progress that are persistently below standard and making recommendations to the school and school system, as appropriate, and to the state board on such measures as it considers necessary to improve performance and progress to meet the standard. The investigation may include, but is not limited to, the following:
     (A) Verifying data reported by the school or county board;
     (B) Documenting Examining compliance with the laws and policies and laws affecting student, school and school system performance and progress;
     (C) Evaluating the effectiveness and implementation status of school and school system unified improvement plans;
     (D) Investigating official complaints submitted to the state board that allege serious impairments in the quality of education in schools or school systems;
     (E) Investigating official complaints submitted to the state board that allege that a school or county board is in violation of policies or laws under which schools and county boards operate; and
     (F) Determining and reporting whether required reviews and inspections have been conducted by the appropriate agencies, including, but not limited to, the state fire marshal, the health department, the school building authority and the responsible divisions within the department of education, and whether noted deficiencies have been or are in the process of being corrected. The office of education performance audits may not conduct a duplicate review or inspection of any compliance reviews or inspections conducted by the department or its agents or other duly authorized agencies of the state, nor may it mandate more stringent compliance measures.
     (2) The selection of schools and school systems for an on-site review shall use a weighted sample so that those with lower performance and progress indicators have a greater likelihood of being selected. The director of the office of education performance audits shall notify the county superintendent of schools five school days prior to commencing an on-site review of the county school system and shall notify both the county superintendent and the principal five school days prior to commencing an on-site review of an individual school: Provided, That the state board may direct the office of education performance audits to conduct an unannounced on-site review of a school or school system if the state board believes circumstances warrant an unannounced on-site review.
     (3) The office of education performance audits may shall conduct on-site reviews which are limited in scope to specific areas in addition to full reviews which cover all
which performance and progress are persistently below standard as determined by the state board unless specifically directed by the state board to conduct a review which covers additional areas.
     (4) An on-site review of a school or school system shall include a person or persons from the department of education or a public education agency in the state who has expert knowledge and experience in the area or areas to be reviewed, and who is has been trained and designated by the state board from the department of education and the agencies responsible for assisting the office
to perform such functions. If the size of the school or school system and issues being reviewed necessitates necessitate the use of an on-site review team or teams, the person or persons designated by the state board shall advise and assist the director to appoint the team or teams. The person or persons designated by the state board shall be the team leaders.
     The persons designated by the state board shall be responsible for completing the report on the findings and recommendations of the on-site review in their area of expertise. It is the intent of the Legislature that the persons designated by the state board participate in all on-site reviews that involve their area of expertise, to the extent practicable, so that the on-site review process will evaluate compliance with the standards in a uniform, consistent and expert manner.
     (5) The office of education performance audits shall reimburse a county board for the costs of substitutes required to replace county board employees while they are serving on a review team.
     (6) At the conclusion of an on-site review of a school system, the director and team leaders shall hold an exit conference with the superintendent and shall provide an opportunity for principals to be present for at least the portion of the conference pertaining to their respective schools. In the case of an on-site review of a school, the exit conference shall be held with the principal and curriculum team of the school and the superintendent shall be provided the opportunity to be present. The purpose of the exit conference is to review the initial findings of the on-site review, clarify and correct any inaccuracies and allow the opportunity for dialogue between the reviewers and the school or school system to promote a better understanding of the findings.
     (7) The office of education performance audits shall report the findings of an on-site review to the county superintendent and the principals whose schools were reviewed within thirty days following the conclusion of the on-site review. The office of education performance audits shall report the findings of the on-site reviews review to the state board for inclusion in the evaluation and determination of a school's or county board's accreditation or approval status as applicable. The report on the findings of an on-site review shall be submitted to the state board within thirty days following the conclusion of the on-site review and to the county superintendent and principals of schools within the reviewed school system within forty-five days following the conclusion of the on-site review
within forty-five days after the conclusion of the on-site review. A copy of the report shall be provided to the process for improving education council at its request.
     (8) The Legislature finds that the accountability and oversight of the following activities and programmatic areas in the public schools is controlled through other mechanisms and that additional accountability and oversight are not only unnecessary but counter productive in distracting necessary resources from teaching and learning. Therefore, notwithstanding any other provision of this section to the contrary, the following activities and programmatic areas are not subject to review by the office of education performance audits:
_____(A) Work-based learning;
_____(B) Use of advisory councils;
_____(C) Program accreditation and student credentials;
_____(D) Student transition plans;
_____(E) Graduate assessment form;
_____(F) Casual deficit;
_____(G) Accounting practices;
_____(H) Transportation services;
_____(I) Special education services;
_____(J) Safe, healthy and accessible facilities;
_____(K) Health services;
_____(L) Attendance director;
_____(M) Business/community partnerships;
_____(N) Pupil-teacher ratio/split grade classes;
_____(O)Local school improvement council, faculty senate, student assistance team and curriculum team;
_____(P) Planning and lunch periods;
_____(Q) Skill improvement program;
_____(R) Certificate of proficiency;
_____(S) Training of county board members;
_____(T) Excellence in job performance;
_____(U) Staff development; and
_____(V) Preventive discipline, character education and student and parental involvement.

     On motion of Senator Chafin, the Senate concurred in the foregoing House of Delegates amendment to the Senate amendments to the bill.
     Engrossed Committee Substitute for House Bill No. 4001, as amended, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4001) passed with its Senate amended title.
     Senator Chafin moved that the bill take effect July 1, 2004.
     On this question, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for H. B. No. 4001) takes effect July 1, 2004.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 139, Creating Tourism Development Act.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On
page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.

ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.

§5B-2E-1. West Virginia tourism development act.

     
This article shall be referred to as the "West Virginia Tourism Development Act".
§5B-2E-2. Legislative findings.
     The Legislature finds and declares that the general welfare and material well-being of the citizens of the state depend, in large measure, upon the development of tourism development projects in the state and that it is in the best interest of the state to induce the creation of new or the expansion of existing tourism development projects within the state in order to advance the public purposes of relieving unemployment by preserving and creating jobs and by preserving and creating new and greater sources of revenues for the support of public services provided by the state; and that the inducement for the creation or expansion of tourism development projects should be in the form of a tax credit to be applied to consumers sales and service taxes collected on the gross receipts generated directly from the operations of the new or expanded tourism development projects, in lieu of tax credits on income that are largely deferred for a number of years after start up of a major tourism development project; and all of which new or expanded tourism developments are of paramount importance to the state and its economy and for the state's contribution to the national economy.
§5B-2E-3. Definitions.
     As used in this article, unless the context clearly indicates otherwise:
     (1) "Agreement" means a tourism development agreement entered into, pursuant to section six of this article, between the development office and an approved company, with respect to a tourism development project.
     (2) "Approved company" means any eligible company approved by the development office pursuant to section five of this article seeking to undertake a tourism development project.
     (3) "Approved costs" means:
     (A) Included costs:
     (i) Obligations incurred for labor and to vendors, contractors, subcontractors, builders, suppliers, delivery persons and material persons in connection with the acquisition, construction, equipping, installation or expansion of a tourism development project;
     (ii) The costs of acquiring real property or rights in real property and any costs incidental thereto;
     (iii) The cost of contract bonds and of insurance of all kinds that may be required or necessary during the course of the acquisition, construction, equipping, installation or expansion of a tourism development project which is not paid by the vendor, supplier, delivery person, contractor or otherwise provided;
     (iv) All costs of architectural and engineering services, including, but not limited to: Estimates, plans and specifications, preliminary investigations and supervision of construction, installation, as well as for the performance of all the duties required by or consequent to the acquisition, construction, equipping, installation or expansion of a tourism development project;
     (v) All costs required to be paid under the terms of any contract for the acquisition, construction, equipping, installation or expansion of a tourism development project;
     (vi) All costs required for the installation of utilities, including, but not limited to: Water, sewer, sewer treatment, gas, electricity, communications and off-site construction of utility extensions to the boundaries of the real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons; and
     (vii) All other costs comparable with those described in this subdivision;
     (B) Excluded costs. -- The term "approved costs" does not include any portion of the cost required to be paid for the acquisition, construction, equipping and installation or expansion of a tourism development project that is financed with governmental incentives, grants or bonds or for which the eligible taxpayer elects to qualify for other tax credits, including, but not limited to, those provided by article thirteen-q, chapter eleven of this code.
     (4) "Base tax revenue amount" means the average monthly amount of consumers sales and service tax collected by an approved company, based on the twelve-month period ending immediately prior to the opening of a new tourism development project for business, as certified by the state tax commissioner.
     (5) "Council" means the council for community and economic development as provided in article two of this chapter.
     (6) "Development office" means the West Virginia development office as provided in article two of this chapter.
     (7) "Crafts and products center" means a facility primarily devoted to the display, promotion and sale of West Virginia products and at which a minimum of eighty percent of the sales occurring at the facility are of West Virginia arts, crafts or agricultural products.
     (8) "Eligible company" means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture or any other entity operating or intending to operate a tourism development project, whether owned or leased, within the state that meets the standards required by the council. An eligible company may operate or intend to operate directly or indirectly through a lessee.
     (9) "Entertainment destination center" means a facility containing a minimum of two hundred thousand square feet of building space adjacent or complementary to an existing tourism attraction, an approved tourism development project or a major convention facility and which provides a variety of entertainment and leisure options that contain at least one major theme restaurant and at least three additional entertainment venues, including, but not limited to, live entertainment, multiplex theaters, large-format theaters, motion simulators, family entertainment centers, concert halls, virtual reality or other interactive games, museums, exhibitions or other cultural and leisure time activities. Entertainment and food and drink options shall occupy a minimum of sixty percent of total gross area, as defined in the application, available for lease and other retail stores shall occupy no more than forty percent of the total gross area available for lease.
     (10) "Final approval" means the action taken by the council qualifying the eligible company to receive the tax credits provided in this article.
     (11) "Preliminary approval" means the action taken by the development office conditioning final approval by the council.
     (12) "State agency" means any state administrative body, agency, department, division, board, commission or institution exercising any function of the state that is not a municipal corporation or political subdivision.
     (13) "Tourism attraction" means a cultural or historical site, a recreation or entertainment facility, an area of natural phenomenon or scenic beauty, a West Virginia crafts and products center or an entertainment destination center. A tourism development project or attraction shall not include any of the following:
     (A) Lodging facilities, unless:
     (i) The facilities constitute a portion of a tourism development project and represent less than fifty percent of the total approved cost of the tourism development project, or the facilities are to be located on recreational property owned or leased by the state or federal government and the facilities have received prior approval from the appropriate state or federal agency.
     (ii) The facilities involve the restoration or rehabilitation of a structure that is listed individually in the national register of historic places or are located in a national register historic district and certified by the state historic preservation officer as contributing to the historic significance of the district, and the rehabilitation or restoration project has been approved in advance by the state historic preservation officer; or
     (iii) The facilities involve the construction, reconstruction, restoration, rehabilitation or upgrade of a full-service lodging facility or the reconstruction, restoration, rehabilitation or upgrade of an existing structure into a full-service lodging facility having not less than five hundred guest rooms, with construction, reconstruction, restoration, rehabilitation or upgrade costs exceeding ten million dollars;
     (B) Facilities that are primarily devoted to the retail sale of goods, other than an entertainment destination center, a West Virginia crafts and products center or a tourism development project where the sale of goods is a secondary and subordinate component of the project; and
     (C) Recreational facilities that do not serve as a likely destination where individuals who are not residents of the state would remain overnight in commercial lodging at or near the new tourism development project or existing attraction.
     (14) "Tourism development project" means the acquisition, including the acquisition of real estate by a leasehold interest with a minimum term of ten years, construction and equipping of a tourism attraction; the construction, and installation of improvements to facilities necessary or desirable for the acquisition, construction, installation or expansion of a tourism attraction, including, but not limited to, surveys, installation of utilities, which may include water, sewer, sewage treatment, gas, electricity, communications and similar facilities; and off-site construction of utility extensions to the boundaries of the real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons.
     (15) "Tourism development project tax credit" means the tourism development project tax credit allowed by section seven of this article.
§5B-2E-4. Additional powers and duties of the development office.
     
The development office has the following powers and duties, in addition to those set forth in this case, necessary to carry out the purposes of this article, including, but not limited to:
     (1) Make preliminary approvals of all applications for tourism development projects and enter into agreements pertaining to tourism development projects with approved companies;
     (2) Employ fiscal consultants, attorneys, appraisers and other agents as the executive director of the development office finds necessary or convenient for the preparation and administration of agreements and documents necessary or incidental to any tourism development project; and
     (3) Impose and collect fees and charges in connection with any transaction.
§5B-2E-5. Tourism development project application; evaluation standards; consulting services; preliminary and final approval of projects; limitation of amount annual tourism development project tax credit.

     (a) Each eligible company that seeks to qualify a tourism development project for the tax credit provided by this article must file a written application for approval of the project with the development office.
     (b) With respect to each eligible company making an application to the development office for the tourism development project tax credit, the development office shall make inquiries and request documentation, including a completed application, from the applicant that shall include: A description and location of the project; capital and other anticipated expenditures for the project and the sources of funding therefor; the anticipated employment and wages to be paid at the project; business plans that indicate the average number of days in a year in which the project will be in operation and open to the public; and the anticipated revenues and expenses generated by the project.
     (c) Based upon a review of the application and additional documentation provided by the eligible company, if the director of the development office determines that the applicant and the tourism development project may reasonably satisfy the criteria for final approval set forth in subsection (d) of this section, then the director of the development office may grant a preliminary approval of the applicant and the tourism development project.
     (d) After preliminary approval by the director of the development office, the development office shall engage the services of a competent consulting firm or firms to analyze the data made available by the applicant and to collect and analyze additional information necessary to determine that, in the independent judgment of the consultant, the tourism development project:
     (1) Likely will attract at least twenty-five percent of its visitors from outside of this state;
     (2) Will have approved costs in excess of one million dollars;
     (3) Will have a significant and positive economic impact on the state considering, among other factors, the extent to which the tourism development project will compete directly with or complement existing tourism attractions in the state and the amount by which increased tax revenues from the tourism development project will exceed the credit given to the approved company;
     (4) Will produce sufficient revenues and public demand to be operating and open to the public for a minimum of one hundred days per year; and
     (5) Will provide additional employment opportunities in the state.
     (e) The applicant shall pay to the development office, prior to the engagement of the services of a competent consulting firm or firms pursuant to the provisions of subsection (d) of this section, for the cost of the consulting report or reports and shall cooperate with the consulting firm or firms to provide all of the data that the consultant considers necessary or convenient to make its determination under subsection (d) of this section.
     (f) The director of the development office, within thirty days following receipt of the consultant's report or reports, shall decide whether to recommend the tourism development project to the council for final approval. If the director of the development office recommends the tourism development project to the council, he or she shall submit the project application, the consulting report or reports and other information regarding the project to the council.
     (g) The council shall review all applications properly submitted to the council for conformance to statutory and regulatory requirements, the reasonableness of the project's budget and timetable for completion and, in addition to the criteria for final approval set forth in subsection (d) of this section, the following criteria:
     (1) The quality of the proposed tourism development project and how it addresses economic problems in the area in which the tourism development project will be located;
     (2) Whether there is substantial and credible evidence that the tourism development project is likely to be started and completed in a timely fashion;
     (3) Whether the tourism development project will, directly or indirectly, improve the opportunities in the area where the tourism development project will be located for the successful establishment or expansion of other industrial or commercial businesses;
     (4) Whether the tourism development project will, directly or indirectly, assist in the creation of additional employment opportunities in the area where the tourism development project will be located;
     (5) Whether the project helps to diversify the local economy;
     (6) Whether the project is consistent with the goals of this article;
     (7) Whether the project is economically and fiscally sound using recognized business standards of finance and accounting; and
     (8) The ability of the eligible company to carry out the tourism development project.
     (h) The council may establish other criteria for consideration when approving the applications.
     (i) The council may give its final approval to the applicant's application for a tourism development project and may grant to the applicant the status of an approved company: Provided, That the total amount of tourism development project tax credits for all approved companies may not exceed one million five hundred thousand dollars each calendar year. The council shall act to approve or not approve any application within thirty days following the receipt of the application or the receipt of any additional information requested by the council, whichever is later. The decision by the development office and the council is final.
§5B-2E-6. Agreement between development office and approved company.

     The development office, upon grant of the council's final approval, may enter into an agreement with any approved company with respect to its tourism development project. The terms and provisions of each agreement shall include, but not be limited to:
     (1) The amount of approved costs of the project that qualify for the sales tax credit provided for in section seven of this article. Within three months of the completion date, the approved company shall document the actual cost of the project through a certification of the costs to the development office by an independent certified public accountant acceptable to the development office; and
     (2) A date certain by which the approved company shall have completed and opened the tourism development project to the public. Any approved company that has received final approval may request and the development office may grant an extension or change, however, in no event shall the extension exceed three years from the date of final approval to the completion date specified in the agreement with the approved company.
§5B-2E-7. Amount of credit allowed; approved projects.
     (a) Approved companies are allowed a credit against the West Virginia consumers sales and service tax imposed by article fifteen, chapter eleven of this code and collected by the approved company on sales generated by or arising from the operations of the tourism development project: Provided, That if the consumers sales and service tax collected by the approved company is not solely attributable to sales resulting from the operation of the new tourism development project, the credit shall only be applied against that portion of the consumers sales and service tax collected in excess of the base tax revenue amount. The amount of this credit is determined and applied as provided in this article.
     (b) The maximum amount of credit allowable in this article is equal to twenty-five percent of the approved company's approved costs as provided in the agreement:
Provided, That if the tourism development project site is located within the permit area or an adjacent area of a surface mining operation, as these terms are defined in section three, article three, chapter twenty-two of this code, from which all coal has been or will be extracted prior to the commencement of the tourism development project, the maximum amount of credit allowable is equal to fifty percent of the approved company's approved costs as provided in the agreement.
     (c) The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the project is opened to the public, unless the approved company elects to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the first consumers sales and service tax return filed by the approved company following the date the project is opened to the public. Once made, the election cannot be revoked.
     (d) The amount determined under subsection (b) of this section is allowed as a credit against the consumers sales and service tax collected by the approved company on sales from the operation of the tourism development project. The amount determined under said subsection may be used as a credit against taxes required to be remitted on the approved company's monthly consumers sales and service tax returns that are filed pursuant to section sixteen, article fifteen, chapter eleven of this code. The approved company shall claim the credit by reducing the amount of consumers sales and service tax required to be remitted with its monthly consumers sales and service tax returns by the amount of its aggregate annual credit allowance until such time as the full current year annual credit allowance has been claimed. Once the total credit claimed for the tax year equals the approved company's aggregate annual credit allowance no further reductions to its monthly consumers sales and service tax returns will be permitted.
     (e) If any credit remains after application of subsection (d) of this section, the amount of credit is carried forward to each ensuing tax year until used or until the expiration of the third taxable year subsequent to the end of the initial ten-year credit application period. If any unused credit remains after the thirteenth year, that amount is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.
§5B-2E-8. Forfeiture of unused tax credits; credit recapture; recapture tax imposed; information required to be submitted annually to development office; transfer of tax credits to successors.

     (a) The approved company shall forfeit the tourism development project tax credit allowed by this article with respect to any calendar year and shall pay the recapture tax imposed by subsection (b) of this section, if:
     (1) In any year following the first calendar year the project is open to the public, the tourism development project fails to attract at least twenty-five percent of its visitors from among persons who are not residents of the state;
     (2) In any year following the first year the project is open to the public, the tourism development project is not operating and open to the public for at least one hundred days; or
     (3) The approved company is not in good standing with the state tax division, the workers' compensation commission or the bureau of employment programs as of the beginning of each calendar year.
     (b) In addition to the loss of credit allowed under this article for the calendar year, any approved company or successor eligible company that forfeits the tourism development project tax credit under the provisions of subsection (a) of this section, credit recapture shall apply, and the approved company, and successor eligible companies, shall return to the state all previously claimed tourism development project tax credit allowed by this article. An amended return shall be filed with the state tax commissioner for the prior calendar year, or calendar years, for which credit recapture is required, along with interest, as provided in section seventeen, article ten, chapter eleven of this code: Provided, That the approved company and successor eligible companies who previously claimed the tourism development project tax credit allowed by this article are jointly and severally liable for payment of any recapture tax subsequently imposed under this section.
     (c)  Within forty-five days after the end of each calendar year during the term of the agreement, the approved company shall supply the development office with all reports and certifications the development office requires demonstrating to the satisfaction of the development office that the approved company is in compliance with applicable provisions of law. Based upon a review of these materials and other documents that are available, the development office shall then certify to the tax commissioner that the approved company is in compliance with this section.
     (d) The tax credit allowed in this article is transferable, subject to the written consent of the development office, to an eligible successor company that continues to operate the approved tourism development project.
§5B-2E-9. Promulgation of rules.
     The council may promulgate rules to implement the tourism development project application approval process and to describe the criteria and procedures it has established in connection therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but shall be filed with the secretary of state.
§5B-2E-10. Legislative review.
     The development office shall report annually to the joint commission on economic development by the first day of December of each year on the number of applications received from eligible companies as provided in this article, the status of each application, the number of projects approved, the status of each project, the amount of credit allowed and the amount of consumers sales and service tax generated by each project.
§5B-2E-11. Termination.
     The development office may not accept any new application on or after the first day of January, two thousand seven, and all applications submitted prior to the first day of January, two thousand seven, that have not been previously approved or not approved, shall be deemed not approved and shall be null and void as of the first day of January, two thousand seven.
CHAPTER 11. TAXATION.

ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-34
. Tourism development project tax credit.
     (a) There is allowed as a credit against the consumers sales and service tax collected and required to be remitted pursuant to this article from the operation of an approved tourism development project as defined in section three, article two-e, chapter five-b of this code, the amount determined under section eight of said article relating to the tourism development project tax credit.
     (b) The tax commissioner may propose legislative rules in accordance with article three, chapter twenty-nine-a of this code designed to require the filing of forms designed by the tax commissioner to reflect the intent of this section and article two-e, chapter five-b of this code.
;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 139--A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new article, designated §5B-2E-1, §5B-2E-2, §5B-2E-3, §5B-2E-4, §5B-2E- 5, §5B-2E-6, §5B-2E-7, §5B-2E-8, §5B-2E-9, §5B-2E-10 and §5B-2E-11; and to amend said code by adding thereto a new section, designated §11-15-34, all relating to the West Virginia tourism development act; establishing a tourism development project tax credit; specifying short titles; specifying legislative findings and purpose; defining terms; specifying additional powers and duties of the development office; specifying activity that qualifies for the credit; requiring filing of application for tax credit as condition precedent to claiming tax credit; specifying procedures for evaluation and approval of project; providing for hiring of consultants; specifying criteria for evaluating projects; specifying determination of amount of allowable tax credits; providing maximum amount of credit; specifying application of tax credits against sales tax collected; termination of applications after a certain date; providing for forfeiture of unused tax credits; providing for a recapture credit under certain circumstances; and specifying information required to be annually submitted to the state development office.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 139, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 139) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 558, Making misuse of power of attorney or fiduciary relationship crime.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §61-3-20 of the code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new section, designated §61-3-20a, all to read as follows:
ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-20. Embezzlement.
     If any officer, agent, clerk or servant of this state, or of any county, district, school district or municipal corporation, or of any banking institution, or other corporation, or any officer of public trust in this state, or any agent, clerk or servant of any firm or person, or company or association of persons not incorporated, embezzles or fraudulently converts to his own use bullion, money, bank notes, drafts, security for money or any effects or property of any other person, which shall have come into his possession, or been placed under his care or management, by virtue of his office, place or employment, he shall be guilty of the larceny thereof. If such guilty person be an officer, agent, clerk or servant of any banking institution, he shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in the penitentiary not less than ten years. And it shall not be necessary to describe in the indictment, or to identify upon the trial, the particular bullion, money, bank note, draft or security for money which is so taken, converted to his own use or embezzled by him. In the prosecution of any such officer, agent, clerk or servant, charged with such embezzlement, fraudulent conversion or larceny, if it appear that the possession of such bullion, money, bank notes, drafts, security for money, or other property, is unlawfully withheld by such officer, agent, clerk or servant from the person or persons entitled thereto, and that such officer, agent, clerk or servant has failed or refused to restore or account for such bullion, money, bank notes, drafts, security for money, or other property, within thirty days after proper demand has been made therefor, such accused officer, agent, clerk or servant shall be presumed to be guilty of such offense; but the accused may rebut such presumption by disproving any such facts, or by other competent testimony germane to the issue, upon the trial.
     And whenever any officer, agent, clerk or servant of this state, or of any county, district, school district or municipal corporation, shall appropriate or use for his own benefit, or for the benefit of any other person, any bullion, money, bank notes, drafts, security for money or funds belonging to this state or to any such county, district, school district or municipal corporation, he shall be held to have embezzled the same and be guilty of the larceny thereof. In the prosecution of any such officer, agent, clerk or servant of this state or of any county, district, school district or municipal corporation, charged with appropriation or use for his own benefit or the benefit of any other person any bullion, money, bank notes, drafts, security for money or funds belonging to this state or to any county, district, school district or municipal corporation, it shall not be necessary to describe in the indictment, or to identify upon the trial, the particular bullion, money, bank notes, drafts, security for money or funds appropriated or used for his own benefit or for the benefit of any other person. The failure of any such officer, clerk or servant to account for or pay over, as required by law, any such bullion, money, bank notes, drafts, security for money, or funds, shall be prima facie evidence that he has so appropriated or used the same for his own benefit or for the benefit of such other person.

§61-3-20a. Embezzlement by misuse of power of attorney or other fiduciary relationship; penalty.

     Any person who holds a fiduciary power of attorney or who has a fiduciary relationship with a person and in so doing willfully and with intent to defraud embezzles, misappropriates or fraudulently converts for his or her own benefit, or for the benefit of another, the assets or property, real or personal, with which he or she has been entrusted, or misuses or misappropriates funds from the person to whom he or she owes a fiduciary duty or misuses any account, line of credit or credit card of the principal for purposes not contemplated by the terms of the power of attorney instrument or fiduciary relationship, or for purposes not intended by the principal in the execution of the power of attorney or for purposes not intended by the fiduciary relationship, shall be held to have embezzled the same and, upon conviction, shall be deemed guilty of the larceny thereof.
;
     And,
     On page one, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Senate Bill No. 558--A Bill to
amend and reenact §61-3-20 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §61-3-20a, all relating to crimes of embezzlement; removing certain evidentiary presumptions which have been deemed unconstitutional; creating a new crime of embezzlement related to the willful and fraudulent misuse of a power of attorney or other fiduciary relationship; and providing that such crimes of embezzlement or fraudulent conversion to be punishable as larceny.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Senate Bill No. 558, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 558) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended, and requested the concurrence of the Senate in the House of Delegates amendment, as to
     Eng. Senate Bill No. 573, Providing procedure for economic development authority to address problems of state minorities.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendment to the bill was reported by the Clerk:
     On page six, section three, line seven, by striking out the word "faith-based" and inserting in lieu thereof the word "nonprofit".
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendment to the bill.
     Engrossed Senate Bill No. 573, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 573) passed with its title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 616, Relating to environmental protection advisory council.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 1. DEPARTMENT OF ENVIRONMENTAL PROTECTION.
§22-1-9. Environmental protection advisory council.

     (a) There is created within the department of commerce, labor and environmental resources environmental protection the environmental protection advisory council. The environmental protection advisory council consists of seven twelve members. The director secretary serves as an ex officio member of the council and as its chair. The remaining six eleven members are appointed by the governor. Each member serves for a term of four years and may be reappointed. Of the new members of the council first appointed, two
as a result of the enactment of this section during the two thousand four regular session, four shall be appointed for terms ending on the thirtieth day of June, one thousand nine hundred ninety-six, and two each for terms ending one and two years thereafter. two thousand six, four shall be appointed for terms ending two thousand seven and three shall be appointed for terms ending two thousand eight. Thereafter, each appointment shall be for a term of four years. Vacancies on the council shall be filled within sixty days after the vacancy occurs.
     (b) Two members of the council shall represent industries regulated by the division or their trade associations. Two members shall represent organizations advocating environmental protection. One member shall represent organizations representing local governments. One member shall represent public service districts.      (b) The governor shall appoint members of the council from nominations submitted by the following organizations:
_____(1) The largest state organization representing manufacturers;
_____(2) The largest state trade organization representing coal producers;
_____(3) The largest state organization representing farming interests; and
_____(4) The largest employee organization representing coal miners within this state.
_____And from the following areas of interest:
_____(5) A forester registered pursuant to article nineteen, chapter thirty of this code and representing the interests of private owners of forest land;
_____(6) Two members shall represent organizations advocating environmental protection;
_____(7) One member shall represent wildlife conservation;
_____(8) One member shall be the department of environmental protection environmental advocate;
_____(9) One member shall represent organizations representing local governments; and
_____(10) One member shall represent public service districts.
     In making subsequent appointments this balance of membership shall be maintained.
     (c) Appointed members, who are not employees of the state, shall be paid the same compensation and expense reimbursement as is paid to members of the Legislature for their interim duties as recommended by the citizens legislative compensation commission and authorized by law for each day or portion thereof engaged in the discharge of official duties.
     (d) The council shall meet at least once every quarter and at the call of the chair on his or her own motion or at the request of any five members of the council presented in writing to the chair.
At least fifteen days prior to each regularly scheduled quarterly meeting, or ten days in advance of a meeting called by the chair, the secretary shall provide to the council an agenda of all matters scheduled for discussion at the meeting together with any rules the secretary intends to propose for promulgation.
     (e) The council shall:
     (1) Consult with and advise the director secretary on program and policy development, problemsolving and other appropriate subjects;
     (2) Identify and define problems associated with the implementation of the policy set forth in section one of this article;
     (3) Provide and disseminate to industry and the public early identification of major federal program and regulatory changes;
     (4) Provide a forum for the resolution of conflicts between constituency groups;
     (5) To the extent possible, strive for consensus on the development of overall environmental policy; and
     
(6) Upon a majority vote of the members, the council may submit to the secretary suggestions for proposed rulemaking which the secretary may propose as amendments to an existing rule or as a new rule pursuant to the provisions of chapter twenty-nine-a of this code;_____
_____
(6) (7) Provide an annual report to the joint committee on government and finance on or before the first day of January of each year relating to its findings with regard to the division's performance during the previous year. The report will specifically address the division's department's performance in accomplishing the nine ten purposes set forth in subsection (b), section one of this article; and
_____(8) Appoint technical advisory committees as may be of assistance to the council and secretary in the development of programs.
ARTICLE 3. SURFACE COAL MINING AND RECLAMATION ACT.

§22-3-33. Quality assurance and compliance advisory committee.

     (a) A quality assurance and compliance advisory committee is hereby established.
     (b) The purpose of the advisory committee is to review mine permitting procedures and related requirements and to work with the office of mining and reclamation to improve upon the efficiency and quality of permits issued by the office and improvement of the permitting process.
     (c) The secretary shall serve as an ex officio member of the advisory committee and as its chair.
     (d) The governor shall appoint two members to the committee who each have five or more years' experience in either underground or surface coal mining; two members who each have five or more years' experience in environmental protection and one citizen at large from a coal-producing region of the state who is not currently nor has been employed in the coal mining industry.
     (e) After the initial appointments, members shall serve for staggered terms of six years and may be reappointed. Two of the members of the advisory committee first appointed shall serve terms ending on the thirtieth day of June, two thousand six, and one each for terms ending two, three and four years thereafter.
     (f) Vacancies on the advisory committee shall be filled within sixty days after the vacancy occurs. Members appointed to fill vacancies shall serve for the remainder of the unexpired term.

     (g) Any appointed member whose term has expired shall serve until a successor has been duly appointed and qualified.
     (h) Appointed members of the advisory committee shall be paid the same compensation and expense reimbursement as is provided for members of the Legislature pursuant to sections six and eight, article two-a, chapter four of this code.
     (i) The advisory committee shall meet at the call of the secretary or his or her designee, but not less than every four months.
;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Com. Sub. for Senate Bill No. 616--A Bill to amend and reenact §22-1-9 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §22-3-33, all relating to the department of environmental protection generally; increasing the membership of the environmental protection advisory council; requiring that a meeting of the advisory council be called upon the written request of a majority of members; requiring that the council timely receive an agenda and related materials for each meeting; allowing council members to submit rule-making suggestions to the secretary for consideration; authorizing appointment of technical advisors; establishing a new quality assurance and compliance advisory committee; providing for procedures for committee meetings; authorizing payment of expenses; and authorizing the committee to review coal mining permit procedures and processes.
     On motion of Senator Kessler, the following amendment to the House of Delegates amendments to the bill was reported by the Clerk:
     In section nine, subsection (d), line eight, by striking out the words "any five" and inserting in lieu thereof the words "a majority of the".
     The question being on the adoption of Senator Kessler's amendment to the House of Delegates amendments to the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 616).
     At the request of Senator Kessler, and by unanimous consent, Senator Kessler's amendment to the House of Delegates amendments to the bill was withdrawn.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 616, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--31.
     The nays were: Hunter and Rowe--2.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 616) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Com. Sub. for Senate Bill No. 637, Relating to termination of tenancy of factory-built home site; other provisions.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page two, by striking out everything after the enacting clause and inserting in lieu thereof the following:
     That §37-15-2, §37-15-3 and §37-15-6 of the code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §37-15- 3a; and that said code be amended by adding thereto a new article, designated §55-3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5, §55- 3B-6 and §55-3B-7, all to read as follows:
CHAPTER 37. REAL PROPERTY.

ARTICLE 15. HOUSE TRAILERS, MOBILE HOMES, MANUFACTURED HOMES AND MODULAR HOMES.

§37-15-2. Definitions.

     For the purposes of this article, unless expressly stated otherwise:
     (a) "Abandoned factory-built home" means a factory-built home occupying a factory-built home site pursuant to a written agreement under which the tenant has defaulted in rent or the landlord has exercised any right to terminate the rental agreement;
     (b) "Factory-built home" includes modular homes, mobile homes, house trailers and manufactured homes;
     (c) "Factory-built home rental community" means a parcel of land under single or common ownership upon which two or more factory-built homes are located on a continual, nonrecreational basis together with any structure, equipment, road or facility intended for use incidental to the occupancy of the factory-built homes, but does not include premises used solely for storage or display of uninhabited factory-built homes or premises occupied solely by a landowner and members of his family;
     (d) "Factory-built home site" means a parcel of land within the boundaries of a factory-built home rental community provided for the placement of a single factory-built home and the exclusive use of its occupants;
_____(e) "Good cause" means:
_____(1) The tenant is in arrears in the payment of periodic payments or other charges;
_____(2) The tenant has breached a material term of a written rental agreement or has repeatedly breached other terms of the rental agreement;
_____(3) Where there is no written agreement, or where the written agreement does not cover the subject matter of a warranty or leasehold covenant, the tenant breached a material warranty or leasehold covenant or has repeatedly breached other terms of a warranty or a leasehold covenant;
_____(4) The tenant has deliberately or negligently damaged the property or knowingly permitted another person to do so.
_____
(e) (f) "House trailers" means all trailers designed or intended for human occupancy and commonly referred to as mobile homes or house trailers and shall include fold down camping and travel trailers as these terms are defined in section one, article six, chapter seventeen-a of this code, but only when such camping and travel trailers are located in a factory-built home rental community, as defined in this section, on a continual, nonrecreational basis.
     (f) (g) "Landlord" means the factory-built home rental community owner, lessor or sublessor of the factory-built home rental community, or an agent or representative authorized to act on his or her behalf in connection with matters relating to tenancy in the community.
     (g) (h) "Manufactured home" has the same meaning as the term is defined in section two, article nine, chapter twenty-one of this code which meets the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. §§5401, et seq.), effective on the fifteenth day of June, one thousand nine hundred seventy-six, and the federal manufactured home construction and safety standards and regulations promulgated by the secretary of the United States department of housing and urban development.
     (h) (i) "Mobile home" means a transportable structure that is wholly, or in substantial part, made, fabricated, formed or assembled in manufacturing facilities for installation or assembly and installation on a building site and designed for long-term residential use and built prior to enactment of the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U. S. C. §§5401, et seq.), effective on the fifteenth day of June, one thousand nine hundred seventy-six, and usually built to the voluntary industry standard of the American national standards institute (ANSI)--A119.1 standards for mobile homes.
     (i) (j) "Modular home" means any structure that is wholly, or in substantial part, made, fabricated, formed or assembled in manufacturing facilities for installation or assembly and installation on a building site and designed for long-term residential use and is certified as meeting the standards contained in the state fire code encompassed in the legislative rules promulgated by the state fire commission pursuant to section five- b, article three, chapter twenty-nine of this code.
     (j) (k) "Owner" means one or more persons, jointly or severally, in whom is vested: (i) All or part of the legal title to the factory-built home rental community; or (ii) all or part of the beneficial ownership and right to present use and enjoyment of the factory-built homesite or other areas specified in the rental agreement and the term includes a mortgagee in possession.
     (k) (l) "Rent" means payments made by the tenant to the landlord for use of a factory-built home site and as payment for other facilities or services provided by the landlord.
     (m) "Section" means a unit of a factory-built home which is transported and delivered as a whole and which contains some or all of the indoor living area.
_____
(l) (n) "Tenant" means a person entitled pursuant to a rental agreement to occupy a factory-built home site to the exclusion of others.
§37-15-3. Written agreement required.
     (a) The rental and occupancy of a factory-built home site shall be governed by a written agreement which shall be dated and signed by all parties thereto prior to commencement of tenancy. A copy of the signed and dated written agreement and a copy of this article shall be given by the landlord to the tenant within seven days after the tenant signs the written agreement.
     (b) The written agreement, in addition to the provisions otherwise required by law to be included, shall contain:
     (1) The terms of the tenancy and the rent therefor;
     (2) The rules and regulations of the factory-built home rental community. A copy of the text of the rules and regulations attached as an exhibit satisfies this requirement;
     (3) The language of the provisions of this article. A copy of the text of this article attached as an exhibit satisfies this requirement;
     (4) A description of the physical improvements and maintenance to be provided by the tenant and the landlord during the tenancy; and
     (5) A provision listing those services which will be provided at the time the rental agreement is executed and will continue to be offered for the term of tenancy and the fees, if any, to be charged for those services.
     (c) The written agreement for a factory-built home site on which is placed a factory-built home that is comprised of one section, other than a camping or travel trailer, may not allow for the termination of the tenancy by the landlord during the first twelve months that the factory-built home is placed on the site except for good cause. The written agreement for a factory-built home site upon which is placed a factory-built home that is comprised of more than one section may not allow for the termination of the tenancy by the landlord during the first five years the factory-built home is placed on the site except for good cause.
_____
(c) (d) The written agreement may not contain:
     (1) Any provisions contrary to the provisions of this article and shall not contain a provision prohibiting the tenant who owns his or her factory-built home from selling his or her factory-built home;
     (2) Any provision that requires the tenant to pay any recurring charges except fixed rent, utility charges or reasonable incidental charges for services or facilities supplied by the landlord; or
     (3) Any provision by which the tenant waives his or her rights under the provisions of this article.
     (d) (e) When any person possesses a security interest in the factory-built home, the written agreement or rental application shall contain the name and address of any secured parties. The written agreement shall require the tenant to notify the landlord within ten days of any new security interest, change of existing security interest or settlement or release of the security interest.
     (e) (f) When a factory-built home owner sells a factory-built home, the new owner shall enter into a written agreement if the factory-built home continues to occupy the site: Provided, That the new owner meets the standards and restrictions contained in the prior rental agreement.
37-15-3a. Rules and regulations.
     (a) An owner, from time to time, may adopt rules or regulations concerning the tenant's use and occupancy of the premises. A rule or regulation is enforceable against the tenant if the rule or regulation:
     (1) Is reasonably related to the purpose for which it is adopted;
     (2) Applies to all tenants in the factory-built home rental community in a fair manner;
     (3) Is sufficiently explicit in its prohibition, direction or limitation of the tenant's conduct to fairly inform the tenant of what the tenant must or must not do to comply;
     (4) Is not for the purpose of evading the obligations of the landlord; and
     (5) The tenant has been given written notice of the rule at the time the tenant enters into the rental agreement or when it is adopted by the owner.
     (b) A rule or regulation adopted by the owner after the tenant has entered into a rental agreement that results in a substantial modification of the tenant's original rental agreement does not become effective until the current rental agreement expires and a new agreement is made in writing.
§37-15-6. Termination of tenancy.
     (a) The tenancy for a factory-built home site upon which is placed a factory-built home that is comprised of one section, other than a camping or travel trailer, may not be terminated until twelve months after the home is placed on the site except for good cause. The tenancy for a factory-built home site on which is placed a factory-built home that is comprised of two or more sections may not be terminated until five years after the home has been placed on the site except for good cause.
_____(b) The tenancy for a factory-built home, other then a camping or travel trailer, may be terminated at the time set forth in this subsection.
_____(1)
Either party may terminate a rental agreement which is for a term of thirty days or more by giving written notice to the other party at least thirty days prior to the termination date: Provided, That the
at the end of its stated term or at the end of the time period set out in subsection (a) of this section, whichever is later, for any reason, unless the rental agreement states that reasons for termination must exist.
_____(2) Either party may terminate a tenancy which has continued after its stated term and longer than the period set out in subsection (a) of this section for no reason, unless the rental agreement states that reasons must exist.
_____(3) A tenancy that has not reached the end of its stated term or has not existed for the time periods stated in subsection (a) of this section may be terminated only for good cause.
_____(c)
A tenancy governed by subdivision (1) or (2), subsection (b) of this section may be terminated only by written notice at least three months before the termination date of the tenancy. A tenancy governed by subdivision (3), subsection (a) of this section may be terminated only by a written notice at least three months before the termination date of the tenancy. The rental agreement may specify a period of notice in excess of thirty days the periods of time set out in this subsection.
_____
(d) A landlord may not cause the eviction of a tenant by willfully interrupting gas, electricity, water or any other essential service, or by removal of the factory-built home from the factory-built home site, or by any other willful self-help measure.
     (d) A rental agreement may be terminated by the landlord for the following reasons:
     
(1) Failure to comply with the terms of the rental agreement;
     
(2) Condemnation of the community; or
     
(3) change of use of the community: Provided, That all requirements imposed by this chapter are complied with.
     
(c) (e) The landlord shall set forth in a notice of termination the reason relied upon for the termination with specific facts to permit determination of the date, place, witnesses and circumstances concerning that reason.
     (f) If
Unless the landlord is changing the use of the site, if a tenancy is ended by the landlord at the later of its stated term or at the end of the time period set out in subsection (a) of this section with no good cause, the owner may not prevent the sale of the factory-built home in place to another tenant who meets the standards and restrictions in effect for other new tenants prior to the termination of the tenancy.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

ARTICLE 3B. REMEDIES FOR WRONGFUL OCCUPATION OF FACTORY-BUILT HOME SITE.

§55-3B-1. Definitions
.
     For the purposes of this article, unless expressly stated otherwise:
     (a) "Factory-built home" has the same meaning given to that term in section two, article fifteen, chapter thirty-seven of this code.
     (b) "Factory-built home site" means a parcel of land provided for the placement of a factory-built home for occupancy as a residence whether or not in a factory-built home community. A factory-built home site is not residential rental property for the purposes of article three-a of this chapter.
     (c) "Good cause" means:
     (1) The tenant is in arrears in the payment of periodic payments or other charges related to the tenancy;
     (2) The tenant has breached a material term of a written rental agreement or repeatedly breached other terms of a written rental agreement including those agreements required in section three, article fifteen, chapter thirty-seven of this code;
     (3) Where there is no written agreement, or where the written agreement does not cover the subject matter of a warranty or leasehold covenant, the tenant breached a material term of a warranty or leasehold covenant or repeatedly breached other terms of a warranty or leasehold covenant;
     (4) The tenant has deliberately or negligently damaged the property or knowingly permitted another person to do so.
     (d) "Section" means a unit of a factory-built home which is transported and delivered as a whole and which contains some or all of the indoor living area.
§55-3B-2. Tenancy of factory-built home site.
     (a) The tenancy of the site of a factory-built home that is comprised of one section and that is not subject to a written agreement is from month to month. The tenancy of the site of a factory-built home that is comprised of two or more sections that is not subject to a written agreement is from year to year.
     (b) The tenancy of a factory-built home site that has placed on it a factory-built home that is comprised of one section, other then a camping or travel trailer, may not be terminated by the landlord until twelve months after the tenancy began except for good cause. The tenancy of a factory-built home site that has placed on it a factory-built home that is comprised of two or more sections may not be terminated by the landlord until five years after the tenancy began except for good cause. A written agreement may provide that the tenant may not terminate the tenancy for the same or greater periods of time. A written agreement may provide that the landlord may not terminate the tenancy for greater periods of time.
     (c) For a month-to-month or year-to-year tenancy or a tenancy that is created by a written agreement for a definite period of time, the tenancy does not terminate at the end of the month, year or stated period of time unless either party gives timely notice as required in section three of this article. If no notice is given and if no new agreement is made, the tenancy of a factory-built home site that is comprised of one section becomes a month-to-month tenancy and the tenancy of a factory-built home that is comprised of two or more sections becomes a year-to-year tenancy.
§55-3B-3. Termination of tenancy.
     (a) The tenancy of a factory-built home site may be terminated by either party only by giving at least three months' notice in writing to the other of his or her intention to terminate the tenancy. When such notice is to the tenant, it may be served upon him or upon anyone holding under him the leased premises or any part thereof. When it is by the tenant, it may be served upon anyone who at the time owns the premises, in whole or in part, or the agent of such owner or according to the common law.
     (b) Unless the landlord is changing the use of the site, if a tenancy is ended by the landlord at the later of its stated term or at the end of the time period set out in subsection (b), section two of this article, with no good cause, the owner may not prevent the sale of the factory-built home in place to another tenant who meets the standards and criteria in effect for new tenants prior to the termination of the tenancy.
§55-3B-4. Petition for summary relief for wrongful occupation of residential rental property.

     (a) A person desiring to remove a tenant and factory-built home from a factory-built home site may apply for such relief to the magistrate court or the circuit court of the county in which such property is located, by verified petition, setting forth the following:
     (1) That he is the owner or agent of the owner and as such has a right to evict the tenant and have the factory-built home of the tenant removed;
     (2) A brief description of the factory-built home site sufficient to identify it;
     (3) That the tenant is wrongfully occupying such property in that the tenant is:
     (A) Holding over after having been given proper notice of termination of tenancy, whether or not the tenant has continued to pay and the landlord has accepted rent; or
     (B) The landlord has good cause; and
     (4) A prayer for eviction of the tenant and removal of the tenant's factory-built home.
     (b) Previous to the filing of the petition the person shall request from the court the time and place at which the petitioner shall be heard. The court shall fix a time for such hearing, which time shall not be less than five nor more than ten judicial days following such request.
     (c) Immediately upon being apprised of the time and place for hearing the petitioner shall cause a notice of the same to be served upon the tenant in accordance with the provisions of rule 4 of the West Virginia rules of civil procedure or by certified mail, return receipt requested. Such notice shall inform the tenant that any defense to the petition must be submitted in writing to the petitioner within five days of the receipt by the tenant of the notice and in no case later than the fifth day next preceding the date of hearing. Upon receipt of the return of service or the return receipt as the case may be, evidencing service upon the tenant, the petitioner shall file with the court his petition and such proof of service.
§55-3B-5. Defenses available.
     In a proceeding under the provisions of this article, a tenant against whom a petition has been brought may assert any and all defenses which might be raised in an action for ejectment or an action for unlawful detainer or provided by this article or article fifteen, chapter thirty-seven of this code.
§55-3B-6. Proceedings in court; final order; disposition of abandoned personal property.

     (a) If at the time of the hearing there has been no appearance, answer or other responsive pleading filed by the tenant, the court shall make and enter an order evicting the tenant and ordering the tenant to have the factory-built home removed.
     (b) In the case of a petition alleging good cause or holding over after proper termination of a tenancy, if the tenant files an answer raising the defense of breach by the landlord of a material covenant upon which the tenant's duties depend or other defenses to the claim or claims set forth in the petition, the court shall proceed to a hearing on such issues.
     (c) Continuances of the hearing provided for in this section shall be for good cause only and the judge or magistrate shall not grant a continuance to either party as a matter of right. If a continuance is granted upon request by a tenant, the tenant shall be required to pay into court any periodic rent becoming due during the period of such continuance.
     (d) At the conclusion of the hearing, if the court finds that the landlord is entitled to evict the tenants and have the factory- built home of the tenants removed, the court shall make and enter an order evicting the tenants and ordering the tenants to have the factory-built home removed. In the case of a proceeding pursuant to subsection (a) of this section, the court may also make a written finding and include in its order such relief on the issue of arrearage in the payment of periodic payments or other agreed charges related to the tenancy as the evidence may require. The court may disburse any moneys paid into court by the tenant in accordance with the provisions of this section.
     (e) The court order shall specify the time when the tenant shall vacate the property, taking into consideration such factors as the nature of the factory-built home, the possibility of relative harm to the parties and other material facts deemed relevant by the court in considering when the tenant might reasonably be expected to vacate the property. The court shall not order the tenant to vacate the premises in less than one month unless the tenant refuses or fails to pay rent for that period in advance as it becomes due or unless the court finds that the tenant has deliberately or negligently damaged the property or the property of other tenants or materially threatened or harmed the quiet enjoyment of the property of other tenants or neighbors or knowingly permitted another person to do so. The court shall not order the tenant to remove the factory-built home in less than three months unless the tenant refuses or fails to pay rent in advance as it becomes due for that period or unless the court finds that the presence of the factory-built home poses an imminent threat to the health or safety of other tenants or neighbors: Provided, That the court may order the home to be removed in not less than thirty days if the factory-built home is a single section and the tenant had held over after having been given notice pursuant to section three of this article. The order shall further provide that if the tenant continues to wrongfully occupy the property beyond such time or if the tenant refuses or fails to remove the factory-built home in the time required, the landlord may apply for a writ of possession and the sheriff shall forthwith remove the tenant, taking precautions to guard against damage to the property of the landlord and the tenant.
     (f) In the event an appeal is taken and the tenant prevails upon appeal, and if the term of the lease has expired
and proper termination notice was given pursuant to section three of this article, absent an issue of title, retaliatory eviction or breach of warranty , the relief ordered by the appellate court shall be for monetary damages only and shall not restore the tenant to possession. During the pendency of any such appeal, if the period of the tenancy has otherwise expired and proper termination notice was given pursuant to section three of this article, the tenant is not entitled to remain in possession of the property.
     (g) When an order is issued pursuant to this section evicting the tenant and ordering the tenant to remove the factory-built home and the tenant fails to remove the factory-built home by the date specified by the order issued pursuant to subsection (e) of this section, the landlord may:
     (1) Dispose of the tenant's factory-built home without incurring any liability or responsibility to the tenant or any other person if the tenant informs the landlord in writing that the tenant is abandoning the factory-built home;
     (2) Remove and store the factory-built home after the date and time by which the court ordered the tenant to remove the factory- built home. The landlord may sell the stored factory-built home after thirty days without incurring any liability or responsibility to the tenant or any other person if: (i) The tenant has not paid the reasonable costs of storage and removal to the landlord and has not taken possession of the stored factory-built home; or (ii) the costs of storage equal the value of the factory-built home being stored; or
     (3) Leave the factory-built home on the property. The landlord may sell the factory-built home left on the property after thirty days without incurring any liability or responsibility to the tenant or any other person if the tenant has not paid the landlord the reasonable costs of leaving the factory-built home on the landlord's property and has not taken possession of the factory- built home.
     (h) The sale shall be conducted and the proceeds distributed pursuant to article nine, chapter forty-six of this code as if the landlord became the holder of a security interest on the day the tenant was to have the factory-built home removed from the site except that the landlord shall have first priority to recover unpaid rent and may require as a condition of the sale that the buyer post security or place in escrow the cost of moving the factory-built home from the site.
     (i) When an order is issued pursuant to this section granting possession of the property to the landlord, and the tenant removes the factory-built home, but fails to remove all other personal property by the date and time specified by the order issued pursuant to subsection (e) of this section, the landlord may:
     (1) Dispose of the tenant's personal property without incurring any liability or responsibility to the tenant or any other person if the tenant informs the landlord in writing that the other personal property is abandoned or if the property is garbage;
     (2) Remove and store the other personal property after the date and time by which the court ordered the tenant to vacate the property. The landlord may dispose of the stored personal property after thirty days without incurring any liability or responsibility to the tenant or any other person if: (i) The tenant has not paid the reasonable costs of storage and removal to the landlord and has not taken possession of the stored personal property; or (ii) the costs of storage equal the value of the personal property being stored; or
     (3) Leave the personal property on the property. The landlord may dispose of personal property left on the property after thirty days without incurring any liability or responsibility to the tenant or any other person if the tenant has not paid the landlord the reasonable costs of leaving the personal property on the landlord's property and has not taken possession of the personal property.
     (j) Notwithstanding the provisions of subsections (g) and (i) of this section, if the personal property is worth more than three hundred dollars and was not removed from the property or place of storage within thirty days with the required fees paid as provided in subsection (i) of this section, or if the factory-built home was not removed within thirty days with the required fees paid as provided in subsection (g) of this section, the landlord shall store the personal property or factory-built home for up to thirty additional days if the tenant or any person holding a security interest in the abandoned personal property or factory-built home informs the landlord of their intent to remove the property: Provided, That the tenant or person holding a security interest in the personal property pays the landlord the reasonable costs of storage and removal.
§55-3B-7. Waiver.
     A tenant's rights under this article may not be waived by agreement.;
     And,
     On pages one and two, by striking out the title and substituting therefor a new title, to read as follows:
     Eng. Com. Sub. for Senate Bill No. 637--A Bill to amend and reenact §37-15-2, §37-15-3 and §37-15-6 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §37-15-3a; and to amend said code by adding thereto a new article, designated §55-3B-1, §55-3B-2, §55-3B-3, §55-3B-4, §55-3B-5, §55-3B-6 and §55-3B-7, all relating to factory-built home sites; definition of good cause and section; written agreements for factory-built home sites; adoption of rules and regulations by owners of factory-built home sites; terms of written agreement related to termination of tenancy; remedies for wrongful occupation of factory-built home site; definitions; tenancy of factory-built home site; termination of tenancy; petition for summary relief for wrongful occupation; defenses; proceedings; final order; disposition of abandoned property; and waiver of rights.
     On motion of Senator Chafin, the Senate concurred in the House of Delegates amendments to the bill.
     Engrossed Committee Substitute for Senate Bill No. 637, as amended by the House of Delegates, was then put upon its passage.
     On the passage of the bill, the yeas were: Boley, Bowman, Caldwell, Chafin, Deem, Dempsey, Edgell, Facemyer, Fanning, Guills, Harrison, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Minear, Oliverio, Plymale, Prezioso, Ross, Rowe, Sharpe, Smith, Snyder, Sprouse, Unger, Weeks, White and Tomblin (Mr. President)--33.
     The nays were: None.
     Absent: Bailey--1.
     So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 637) passed with its House of Delegates amended title.
     Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
     A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, and requested the concurrence of the Senate in the House of Delegates amendments, as to
     Eng. Senate Bill No. 638, Authorizing special license plate for Davis & Elkins college and plate recognizing breast cancer survivors.
     On motion of Senator Chafin, the message on the bill was taken up for immediate consideration.
     The following House of Delegates amendments to the bill were reported by the Clerk:
     On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
     That §17A-3-14 of the code of West Virginia, 1931, as amended , be amended and reenacted to read as follows:
ARTICLE 3. ORIGINAL AND RENEWAL OF REGISTRATION; ISSUANCE OF CERTIFICATES OF TITLE.

§17A-3-14. Registration plates generally; description of plates; issuance of special numbers and plates; registration fees; special application fees; exemptions; commissioner to promulgate forms; suspension and nonrenewal.

     (a) The division upon registering a vehicle shall issue to the owner one registration plate for a motorcycle, trailer, semitrailer or other motor vehicle.
     (b) Registration plates issued by the division shall meet the following requirements:
     (1) Every registration plate shall be of reflectorized material and have displayed upon it the registration number assigned to the vehicle for which it is issued; the name of this state, which may be abbreviated; and the year number for which it is issued or the date of expiration of the plate.
     (2) Every registration plate and the required letters and numerals on the plate shall be of sufficient size to be plainly readable from a distance of one hundred feet during daylight: Provided, That the requirements of this subdivision shall not apply to the year number for which the plate is issued or the date of expiration.
     (3) Registration numbering for registration plates shall begin with number two.
     (c) The division may not issue, permit to be issued or distribute any special registration plates except as follows:
     (1) The governor shall be issued two registration plates, on one of which shall be imprinted the numeral one and on the other the word one.
     (2) State officials and judges may be issued special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to the secretary of state, state superintendent of schools, auditor, treasurer, commissioner of agriculture and the attorney general, the members of both houses of the Legislature, including the elected officials of both houses of the Legislature, the justices of the supreme court of appeals of West Virginia, the representatives and senators of the state in the Congress of the United States, the judges of the West Virginia circuit courts, active and retired on senior status, the judges of the United States district courts for the state of West Virginia and the judges of the United States court of appeals for the fourth circuit, if any of the judges are residents of West Virginia, a special registration plate for a Class A motor vehicle and a special registration plate for a Class G motorcycle owned by the official or his or her spouse: Provided, That the division may issue a Class A special registration plate for each vehicle titled to the official and a Class G special registration plate for each motorcycle titled to the official.
     (B) Each plate issued pursuant to this subdivision shall bear any combination of letters and numbers not to exceed an amount determined by the commissioner and a designation of the office. Each plate shall supersede the regular numbered plate assigned to the official or his or her spouse during the official's term of office and while the motor vehicle is owned by the official or his or her spouse.
     (C) The division shall charge an annual fee of fifteen dollars for every registration plate issued pursuant to this subdivision, which is in addition to all other fees required by this chapter.
     (3) The division may issue members of the national guard forces special registration plates as follows:
     (A) Upon receipt of an application on a form prescribed by the division and receipt of written evidence from the chief executive officer of the army national guard or air national guard, as appropriate, or the commanding officer of any United States armed forces reserve unit that the applicant is a member thereof, the division shall issue to any member of the national guard of this state or a member of any reserve unit of the United States armed forces a special registration plate designed by the commissioner for any number of Class A motor vehicles owned by the member. Upon presentation of written evidence of retirement status, retired members of this state's army or air national guard, or retired members of any reserve unit of the United States armed forces, are eligible to purchase the special registration plate issued pursuant to this subdivision.
     (B) The division shall charge an initial application fee of ten dollars for each special registration plate issued pursuant to this subdivision, which is in addition to all other fees required by this chapter. All initial application fees collected by the division shall be deposited into a special revolving fund to be used in the administration of this section.
     (C) A surviving spouse may continue to use his or her deceased spouse's national guard forces license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (4) Specially arranged registration plates may be issued as follows:
     (A) Upon appropriate application, any owner of a motor vehicle subject to Class A registration, or a motorcycle subject to Class G registration, as defined by this article, may request that the division issue a registration plate bearing specially arranged letters or numbers with the maximum number of letters or numbers to be determined by the commissioner. The division shall attempt to comply with the request wherever possible.
     (B) The commissioner shall propose rules for legislative approval in accordance with the provisions of chapter twenty-nine-a of this code regarding the orderly distribution of the plates: Provided, That for purposes of this subdivision, the registration plates requested and issued shall include all plates bearing the numbers two through two thousand.
     (C) An annual fee of fifteen dollars shall be charged for each special registration plate issued pursuant to this subdivision, which is in addition to all other fees required by this chapter.
     (5) The division may issue honorably discharged veterans special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any honorably discharged veteran of any branch of the armed services of the United States a special registration plate for any number of vehicles titled in the name of the qualified applicant with an insignia designed by the commissioner of the division of motor vehicles.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing in this section may be construed to exempt any veteran from any other provision of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's honorably discharged veterans license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (6) The division may issue disabled veterans special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any disabled veteran who is exempt from the payment of registration fees under the provisions of this chapter a registration plate for a vehicle titled in the name of the qualified applicant which bears the letters "DV" in red and also the regular identification numerals in red.
     (B) A surviving spouse may continue to use his or her deceased spouse's disabled veterans license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (C) A qualified disabled veteran may obtain a second disabled veteran license plate as described in this section for use on a passenger vehicle titled in the name of the qualified applicant. The division shall charge a one-time fee of ten dollars to be deposited into a special revolving fund to be used in the administration of this section, in addition to all other fees required by this chapter, for the second plate.
     (7) The division may issue recipients of the distinguished purple heart medal special registration plates as follows:
     (A) Upon appropriate application, there shall be issued to any armed service person holding the distinguished purple heart medal for persons wounded in combat a registration plate for a vehicle titled in the name of the qualified applicant bearing letters or numbers. The registration plate shall be designed by the commissioner of motor vehicles and shall denote that those individuals who are granted this special registration plate are recipients of the purple heart. All letterings shall be in purple where practical.
     (B) Registration plates issued pursuant to this subdivision are exempt from all registration fees otherwise required by the provisions of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's purple heart medal license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (D) A recipient of the purple heart medal may obtain a second purple heart medal license plate as described in this section for use on a passenger vehicle titled in the name of the qualified applicant. The division shall charge a one-time fee of ten dollars to be deposited into a special revolving fund to be used in the administration of this section, in addition to all other fees required by this chapter, for the second plate.
     (8) The division may issue survivors of the attack on Pearl Harbor special registration plates as follows:
     (A) Upon appropriate application, the owner of a motor vehicle who was enlisted in any branch of the armed services that participated in and survived the attack on Pearl Harbor on the seventh day of December, one thousand nine hundred forty-one, the division shall issue a special registration plate for a vehicle titled in the name of the qualified applicant. The registration plate shall be designed by the commissioner of motor vehicles.
     (B) Registration plates issued pursuant to this subdivision are exempt from the payment of all registration fees otherwise required by the provisions of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's survivors of the attack on Pearl Harbor license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (D) A survivor of the attack on Pearl Harbor may obtain a second survivors of the attack on Pearl Harbor license plate as described in this section for use on a passenger vehicle titled in the name of the qualified applicant. The division shall charge a one-time fee of ten dollars to be deposited into a special revolving fund to be used in the administration of this section, in addition to all other fees required by this chapter, for the second plate.
     (9) The division may issue special registration plates to nonprofit charitable and educational organizations authorized under prior enactment of this subdivision as follows:
     (A) Approved nonprofit charitable and educational organizations previously authorized under the prior enactment of this subdivision may accept and collect applications for special registration plates from owners of Class A motor vehicles together with a special annual fee of fifteen dollars, which is in addition to all other fees required by this chapter. The applications and fees shall be submitted to the division of motor vehicles with the request that the division issue a registration plate bearing a combination of letters or numbers with the organizations' logo or emblem, with the maximum number of letters or numbers to be determined by the commissioner.
     (B) The commissioner shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code regarding the procedures for and approval of special registration plates issued pursuant to this subdivision.
     (C) The commissioner shall set an appropriate fee to defray the administrative costs associated with designing and manufacturing special registration plates for a nonprofit charitable or educational organization. The nonprofit charitable or educational organization shall collect this fee and forward it to the division for deposit in a special revolving fund to pay the administrative costs. The nonprofit charitable or educational organization may also collect a fee for marketing the special registration plates.
     (D) The commissioner may not approve or authorize any additional nonprofit charitable and educational organizations to design or market special registration plates.
     (10) The division may issue specified emergency or volunteer registration plates as follows:
     (A) Any owner of a motor vehicle who is a resident of the state of West Virginia and who is a certified paramedic or emergency medical technician, a member of a paid fire department, a member of the state fire commission, the state fire marshal, the state fire marshal's assistants, the state fire administrator and voluntary rescue squad members may apply for a special license plate for any number of Class A vehicles titled in the name of the qualified applicant which bears the insignia of the profession, group or commission. Any insignia shall be designed by the commissioner. License plates issued pursuant to this subdivision shall bear the requested insignia in addition to the registration number issued to the applicant pursuant to the provisions of this article.
     (B) Each application submitted pursuant to this subdivision shall be accompanied by an affidavit signed by the fire chief or department head of the applicant stating that the applicant is justified in having a registration with the requested insignia; proof of compliance with all laws of this state regarding registration and licensure of motor vehicles; and payment of all required fees.
     (C) Each application submitted pursuant to this subdivision shall be accompanied by payment of a special initial application fee of ten dollars, which is in addition to any other registration or license fee required by this chapter. All special fees shall be collected by the division and deposited into a special revolving fund to be used for the purpose of compensating the division of motor vehicles for additional costs and services required in the issuing of the special registration and for the administration of this section.
     (11) The division may issue specified certified firefighter registration plates as follows:
     (A) Any owner of a motor vehicle who is a resident of the state of West Virginia and who is a certified firefighter may apply for a special license plate which bears the insignia of the profession, for any number of Class A vehicles titled in the name of the qualified applicant. Any insignia shall be designed by the commissioner. License plates issued pursuant to this subdivision shall bear the requested insignia pursuant to the provisions of this article. Upon presentation of written evidence of certification as a certified firefighter, certified firefighters are eligible to purchase the special registration plate, issued pursuant to this subdivision.
     (B) Each year an application submitted pursuant to this subdivision shall be accompanied by an affidavit stating that the applicant is justified in having a registration with the requested insignia; proof of compliance with all laws of this state regarding registration and licensure of motor vehicles; and payment of all required fees. The firefighter certification department, section or division of the West Virginia university fire service extension shall notify the commissioner in writing immediately when a firefighter loses his or her certification. If a firefighter loses his or her certification, the commissioner may not issue him or her a license plate under this subsection.
     (C) Each year an application submitted pursuant to this subdivision shall be accompanied by payment of a special initial application fee of ten dollars, which is in addition to any other registration or license fee required by this chapter. All special fees shall be collected by the division and deposited into a special revolving fund to be used for the purpose of compensating the division of motor vehicles for additional costs and services required in the issuing of the special registration and for the administration of this section.
     (12) The division may issue special scenic registration plates as follows:
     (A) Upon appropriate application, the commissioner shall issue a special registration plate displaying a scenic design of West Virginia which displays the words "Wild Wonderful" as a slogan.
     (B) The division shall charge a special one-time initial application fee of ten dollars in addition to all other fees required by this chapter. All initial application fees collected by the division shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (13) The division may issue honorably discharged marine corps league members special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any honorably discharged marine corps league member a special registration plate for any number of vehicles titled in the name of the qualified applicant with an insignia designed by the commissioner of the division of motor vehicles.
     (B) The division may charge a special one-time initial application fee of ten dollars in addition to all other fees required by this chapter. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing in this section may be construed to exempt any veteran from any other provision of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's honorably discharged marine corps league license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (14) The division may issue military organization registration plates as follows:
     (A) The division may issue a special registration plate for the members of any military organization chartered by the United States Congress upon receipt of a guarantee from the organization of a minimum of one hundred applicants. The insignia on the plate shall be designed by the commissioner.
     (B) Upon appropriate application, the division may issue members of the chartered organization in good standing, as determined by the governing body of the chartered organization, a special registration plate for any number of vehicles titled in the name of the qualified applicant.
     (C) The division shall charge a special one-time initial application fee of ten dollars for each special license plate in addition to all other fees required by this chapter. All initial application fees collected by the division shall be deposited into a special revolving fund to be used in the administration of this chapter: Provided, That nothing in this section may be construed to exempt any veteran from any other provision of this chapter.
     (D) A surviving spouse may continue to use his or her deceased spouse's military organization registration plate until the surviving spouse dies, remarries or does not renew the special military organization registration plate.
     (15) The division may issue special nongame wildlife registration plates and special wildlife registration plates as follows:
     (A) Upon appropriate application, the division shall issue a special registration plate displaying a species of West Virginia wildlife which shall display a species of wildlife native to West Virginia as prescribed and designated by the commissioner and the director of the division of natural resources.
     (B) The division shall charge an annual fee of fifteen dollars for each special nongame wildlife registration plate and each special wildlife registration plate in addition to all other fees required by this chapter. All annual fees collected for nongame wildlife registration plates and wildlife registration plates shall be deposited in a special revenue account designated the nongame wildlife fund and credited to the division of natural resources.
     (C) The division shall charge a special one-time initial application fee of ten dollars in addition to all other fees required by this chapter. All initial application fees collected by the division shall be deposited in a special revolving fund to be used in the administration of this chapter.
     (16) The division may issue members of the silver haired legislature special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any person who is a duly qualified member of the silver haired legislature a specialized registration plate which bears recognition of the applicant as a member of the silver haired legislature.
     (B) A qualified member of the silver haired legislature may obtain one registration plate described in this subdivision for use on a passenger vehicle titled in the name of the qualified applicant. The division shall charge an annual fee of fifteen dollars, in addition to all other fees required by this chapter, for the plate. All annual fees collected by the division shall be deposited in a special revolving fund to be used in the administration of this chapter.
     (17) Upon appropriate application, the commissioner shall issue to a classic motor vehicle or classic motorcycle as defined in section three-a, article ten of this chapter, a special registration plate designed by the commissioner. An annual fee of fifteen dollars, in addition to all other fees required by this chapter, shall be charged for each classic registration plate.
     (18) Honorably discharged veterans may be issued special registration plates for motorcycles subject to Class G registration as follows:
     (A) Upon appropriate application, there shall be issued to any honorably discharged veteran of any branch of the armed services of the United States a special registration plate for any number of motorcycles subject to Class G registration titled in the name of the qualified applicant with an insignia designed by the commissioner of the division of motor vehicles.
     (B) A special initial application fee of ten dollars shall be charged in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing in this section may be construed to exempt any veteran from any other provision of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's honorably discharged veterans license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (19) Racing theme special registration plates:
     (A) The division may issue a series of special registration plates displaying national association for stock car auto racing themes.
     (B) An annual fee of twenty-five dollars shall be charged for each special racing theme registration plate in addition to all other fees required by this chapter. All annual fees collected for each special racing theme registration plate shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (C) A special application fee of ten dollars shall be charged at the time of initial application as well as upon application for any duplicate or replacement registration plate, in addition to all other fees required by this chapter. All application fees shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (20) The division may issue recipients of the navy cross, distinguished service cross, distinguished flying cross, air force cross, bronze star or silver star special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any recipient of the navy cross, distinguished service cross, distinguished flying cross, air force cross, silver star or bronze star, a registration plate for any number of vehicles titled in the name of the qualified applicant bearing letters or numbers. A separate registration plate shall be designed by the commissioner of motor vehicles for each award that denotes that those individuals who are granted this special registration plate are recipients of the navy cross, distinguished service cross, distinguished flying cross, air force cross, silver star or bronze star, as applicable.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing in this section exempts the applicant for a special registration plate under this subdivision from any other provision of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's navy cross, distinguished service cross, distinguished flying cross, air force cross, silver star or bronze star special registration plate until the surviving spouse dies, remarries or does not renew the special registration plate.
     (21) The division may issue honorably discharged veterans special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any honorably discharged veteran of any branch of the armed services of the United States with verifiable service during World War II, the Korean War, the Vietnam War, the Persian Gulf War or the War against Terrorism, a special registration plate for any number of vehicles titled in the name of the qualified applicant with an insignia designed by the commissioner denoting service in the applicable conflict.
     (B) The division shall charge a special one-time initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing contained in this section may be construed to exempt any veteran from any other provision of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouse's honorably discharged veterans registration plate until the surviving spouse dies, remarries or does not renew the special registration plate.
     (22) The division may issue special volunteer firefighter registration plates as follows:
     (A) Any owner of a motor vehicle who is a resident of West Virginia and who is a volunteer firefighter may apply for a special license plate for any Class A vehicle titled in the name of the qualified applicant which bears the insignia of the profession in white letters on a red background. The insignia shall be designed by the commissioner and shall contain a fireman's helmet insignia on the left side of the license plate.
     (B) Each application submitted pursuant to this subdivision shall be accompanied by an affidavit signed by the applicant's fire chief, stating that the applicant is a volunteer firefighter and justified in having a registration plate with the requested insignia. The applicant must comply with all other laws of this state regarding registration and licensure of motor vehicles and must pay all required fees.
     (C) Each application submitted pursuant to this subdivision shall be accompanied by payment of a special one-time initial application fee of ten dollars, which is in addition to any other registration or license fee required by this chapter. All application fees shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (23) The division may issue special registration plates which reflect patriotic themes, including the display of any United States symbol, icon, phrase or expression, which evokes patriotic pride or recognition.
     (A) Upon appropriate application, the division shall issue to an applicant a registration plate of the applicant's choice, displaying a patriotic theme as provided in this subdivision, for a vehicle titled in the name of the applicant. A series of registration plates displaying patriotic themes shall be designed by the commissioner of motor vehicles for distribution to applicants.
     (B) The division shall charge a special one-time initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (24) Special license plates bearing the American flag and the logo "9/11/01".
     (A) Upon appropriate application, the division shall issue special registration plates which shall display the American flag and the logo "9/11/01".
     (B) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
     (C) A special application fee of ten dollars shall be charged at the time of initial application as well as upon application for any duplicate or replacement registration plate, in addition to all other fees required by this chapter. All application fees shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (25) The division may issue a special registration plate celebrating the centennial of the 4-H youth development movement and honoring the future farmers of America organization as follows:
     (A) Upon appropriate application, the division may issue a special registration plate depicting the symbol of the 4-H organization which represents the head, heart, hands and health as well as the symbol of the future farmers of America organization which represents a cross section of an ear of corn for any number of vehicles titled in the name of the qualified applicant.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (C) The division shall charge an annual fee of fifteen dollars for each special 4-H future farmers of America registration plate in addition to all other fees required by this chapter.
     (26) The division may issue special registration plates to educators in the state's elementary and secondary schools and in the state's institutions of higher education as follows:
     (A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (C) The division shall charge an annual fee of fifteen dollars for each special educator registration plate in addition to all other fees required by this chapter.
     (27) The division may issue special registration plates to members of the Nemesis Shrine as follows:
     (A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant. Persons desiring the special registration plate shall offer sufficient proof of membership in Nemesis Shrine.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
     (D) Notwithstanding the provisions of subsection (d) of this section, the time period for the Nemesis Shrine to comply with the minimum one hundred prepaid applications is hereby extended to the fifteenth day of January, two thousand five.
     (28) The division may issue volunteers and employees of the American Red Cross special registration plates as follows:
     (A) Upon appropriate application, the division shall issue to any person who is a duly qualified volunteer or employee of the American Red Cross a specialized registration plate which bears recognition of the applicant as a volunteer or employee of the American Red Cross for any number of vehicles titled in the name of the qualified applicant.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
     (29) The division shall issue special registration plates to individuals who have received either the Combat Infantry Badge or the Combat Medic Badge as follows:
     (A) Upon appropriate application, the division shall issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant. Persons desiring the special registration plate shall offer sufficient proof that they have received either the Combat Infantry Badge or the Combat Medic Badge.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (30) The division may issue special registration plates to members of the Knights of Columbus as follows:
     (A) Upon appropriate application, the division shall issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant. Persons desiring the special registration plate shall offer sufficient proof of membership in the Knights of Columbus.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
     (D) Notwithstanding the provisions of subsection (d) of this section, the time period for the Knights of Columbus to comply with the minimum one hundred prepaid applications is hereby extended to the fifteenth day of January, two thousand five.
     (31) The division may issue special registration plates to former members of the Legislature as follows:
     (A) Upon appropriate application, the division shall issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant. Persons desiring the special registration plate shall offer sufficient proof of former service as an elected or appointed member of the West Virginia House of Delegates or the West Virginia Senate.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section. The design of the plate shall indicate total years of service in the Legislature.
     (C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
     (32) Democratic state or county executive committee member special registration plates:
     (A) The division shall design and issue special registration plates for use by democratic state or county executive committee members. The design of the plates shall include an insignia of a donkey and shall differentiate by wording on the plate between state and county executive committee members.
     (B) An annual fee of twenty-five dollars shall be charged for each democratic state or county executive committee member registration plate in addition to all other fees required by this chapter. All annual fees collected for each special plate issued under this subdivision shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (C) A special application fee of ten dollars shall be charged at the time of initial application as well as upon application for any duplicate or replacement registration plate, in addition to all other fees required by this chapter. All application fees shall be deposited into a special revolving fund to be used in the administration of this chapter.
     (D) The division shall not begin production of a plate authorized under the provisions of this subdivision until the division receives at least one hundred completed applications from the state or county executive committee members, including all fees required pursuant to this subdivision.
     (E) Notwithstanding the provisions of subsection (d) of this section, the time period for the democratic executive committee to comply with the minimum one hundred prepaid applications is hereby extended to the fifteenth day of January, two thousand five.
     (33) The division may issue honorably discharged female veterans special registration plates as follows:
     (A) Upon appropriate application, there shall be issued to any female honorably discharged veteran, of any branch of the armed services of the United States, a special registration plate for any number of vehicles titled in the name of the qualified applicant with an insignia designed by the commissioner of the division of motor vehicles to designate the recipient as a woman veteran.
     (B) A special initial application fee of ten dollars shall be charged in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing in this section may be construed to exempt any veteran from any other provision of this chapter.
     (C) A surviving spouse may continue to use his deceased spouse's honorably discharged veterans license plate until the surviving spouse dies, remarries or does not renew the license plate.
     (34) The division may issue special registration plates bearing the logo, symbol, insignia, letters or words demonstrating association with West Liberty state college to any resident owner of a motor vehicle. Resident owners may apply for the special license plate for any number of Class A vehicles titled in the name of the applicant. The special registration plates shall be designed by the commissioner. Each application submitted pursuant to this subdivision shall be accompanied by payment of a special initial application fee of fifteen dollars, which is in addition to any other registration or license fee required by this chapter. The division shall charge an annual fee of fifteen dollars for each special educator registration plate in addition to all other fees required by this chapter. All special fees shall be collected by the division and deposited into a special revolving fund to be used for the purpose of compensating the division of motor vehicles for additional costs and services required in the issuing of the special registration and for the administration of this section.
     (35) The division may issue special registration plates to members of the Harley Owners Group as follows:
     (A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant. Persons desiring the special registration plate shall offer sufficient proof of membership in the Harley Owners Group.
     (B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
     (C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
     (36) The division may issue special registration plates for persons retired from any branch of the armed services of the United States as follows:
     (A) Upon appropriate application, there shall be issued to any person who has retired after service in any branch of the armed services of the United States, a special registration plate for any number of vehicles titled in the name of the qualified applicant with an insignia designed by the commissioner of the division of motor vehicles to designate the recipient as retired from the armed services of the United States.
     (B) A special initial application fee of ten dollars shall be charged in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of a special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section: Provided, That nothing in this section may be construed to exempt any registrants from any other provision of this chapter.
     (C) A surviving spouse may continue to use his or her deceased spouses retired military license plate until the surviving spouse dies, remarries or does not renew the license plate.
_____(37) The division may issue special registration plates bearing the logo, symbol, insignia, letters or words demonstrating association with or support for Fairmont state college as follows:
_____(A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant.
_____(B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
_____(38) The division may issue special registration plates honoring the farmers of West Virginia as follows:
_____(A) Any owner of a motor vehicle who is a resident of West Virginia may apply for a special license plate depicting a farming scene or other apt reference to farming, whether in pictures or words, at the discretion of the commissioner.
_____(B) The division shall charge a special initial application fee of ten dollars. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
_____(39) The division shall issue special registration plates promoting education as follows:
_____(A) Upon appropriate application, the division shall issue a special registration plate displaying a children's education- related theme as prescribed and designated by the commissioner and the state superintendent of schools.
_____(B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section:
Provided, That nothing in this section exempts the applicant for a special registration plate under this subdivision from any other provision of this chapter.

_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
_____(40) The division may issue members of the 82nd airborne division association special registration plates as follows:
_____(A) The division may issue a special registration plate for members of the 82nd
airborne division association upon receipt of a guarantee from the organization of a minimum of one hundred applicants. The insignia on the plate shall be designed by the commissioner.
_____(B) Upon appropriate application, the division may issue members of the 82nd airborne division association in good standing, as determined by the governing body of the organization, a special registration plate for any number of vehicles titled in the name of the qualified applicant.
_____(C) The division shall charge a special one-time initial application fee of ten dollars for each special license plate in addition to all other fees required by this chapter. All initial application fees collected by the division shall be deposited into a special revolving fund to be used in the administration of this chapter:
Provided, That nothing in this section may be construed to exempt the applicant from any other provision of this chapter.
_____(D) A surviving spouse may continue to use his or her deceased spouse's special 82nd airborne division association registration plate until the surviving spouse dies, remarries or does not renew the special registration plate.
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(41)
The division may issue special registration plates to survivors of wounds received in the line of duty as a member with a West Virginia law-enforcement agency.
_____(A) Upon appropriate application, the division shall issue to any member of a municipal police department, sheriff's department, the state police or the law-enforcement division of the division of natural resources who has been wounded in the line of duty and awarded a purple heart in recognition thereof by the West Virginia chiefs' of police association, the West Virginia sheriffs' association, the West Virginia troopers' association or the division of natural resources a special registration plate for one vehicle titled in the name of the qualified applicant with an insignia appropriately designed by the commissioner.
_____(B) Registration plates issued pursuant to this subdivision are exempt from the registration fees otherwise required by the provisions of this chapter.
_____(C) A surviving spouse may continue to use his or her deceased spouse's special registration plate until the surviving spouse dies, remarries or does not renew the plate.

_____(D) Survivors of wounds received in the line of duty as a member with a West Virginia law-enforcement agency may obtain a license plate as described in this section for use on a passenger vehicle titled in the name of the qualified applicant. The division shall charge a one-time fee of ten dollars to be deposited into a special revolving fund to be used in the administration of this section, in addition to all other fees required by this chapter, for the second plate.
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(42) The division may issue a special registration plate for persons who are Native Americans and residents of this state.
_____(A) Upon appropriate application, the division shall issue to an applicant who is a Native American resident of West Virginia a registration plate of the applicants for a vehicle titled in the name of the applicant with an insignia designed by the commissioner of the division of motor vehicles to designate the recipient as
a Native American.
_____(B) The division shall charge a special one-time initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.

_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
_____(43) The division may issue special registration plates commemorating the centennial anniversary of the creation of Davis & Elkins college as follows:
_____(A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner to commemorate the centennial anniversary of Davis & Elkins college for any number of vehicles titled in the name of the applicant.
_____(B) The division shall charge a special initial application fee of ten dollars. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.

_____(44) The division may issue special registration plates recognizing and honoring breast cancer survivors.
_____(A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner to recognize and honor breast cancer survivors, such plate to incorporate somewhere in the design the "pink ribbon emblem", for any number of vehicles titled in the name of the applicant.
_____(B) The division shall charge a special initial application fee of ten dollars. This special fee is to compensate the division of motor vehicles for additional costs and services required in the division and deposited in a special revolving fund to be used for the administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.

_____(45) The division may issue special registration plates to members of the Knights of Pythias or Pythian Sisters as follows:
_____(A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant. Persons desiring the special registration plate shall offer sufficient proof of membership in the Knights of Pythias or Pythian Sisters.
_____(B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
_____(C) An annual fee of fifteen dollars shall be charged for each plate in addition to all other fees required by this chapter.
_____(46) The commissioner may issue special registration plates for whitewater rafting enthusiasts as follows:
_____(A) Upon appropriate application, the division may issue a special registration plate designed by the commissioner for any number of vehicles titled in the name of the qualified applicant.
_____(B) The division shall charge a special initial application fee of ten dollars in addition to all other fees required by law. This special fee is to compensate the division of motor vehicles for additional costs and services required in the issuing of the special registration and shall be collected by the division and deposited in a special revolving fund to be used for the administration of this section.
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