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Friday, March 12, 2004



The House of Delegates met at 10:00 a.m., and was called to order by the Speaker.

Prayer was offered and the House was led in recitation of the Pledge of Allegiance.

The Clerk proceeded to read the Journal of Thursday, March 11, 2004, being the first order of business, when the further reading thereof was dispensed with and the same approved.


Committee Reports


On motion for leave, a concurrent resolution was introduced (Originating in the Committee on Rules and reported with the recommendation that it be adopted), which was read by its title, as follows:

By Delegate Michael:

H. C. R. 89
- "Requesting the Joint Committee on Government and Finance conduct a study to identify appropriate sources of revenue to pay for future costs of cleanup as those costs are incurred at the fifty-eight sites currently insured by the Underground Storage Tank Insurance Fund."

Whereas, The Legislature created the Underground Storage Tank Insurance Fund ("Fund") in 1988 to provide affordable insurance to owners and operators of underground storage tanks to assist them in complying with federal financial assurance requirements related to the accidental release of petroleum into the environment; and

Whereas, The Fund operated until October 2000 and paid out approximately $17 million to owners and operators for the environmental remediation of sites at which underground storage tanks are located; and

Whereas, The Fund presently has insufficient assets to pay all of the claims that have been made by the fifty-eight remaining insured facilities where environmental remediation is incomplete; and

Whereas, The Kanawha County Circuit Court has recently issued an order establishing an equitable plan to distribute all of the Fund's remaining assets to these fifty-eight insured facilities; and

Whereas, Even after that distribution, the facilities are expected to incur costs in the future of up to $14 million to complete the cleanup of these sites; therefore, be it
Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct a study to identify appropriate sources of revenue to pay for future costs of cleanup as those costs are incurred at the fifty-eight sites currently insured by the Fund after those costs have been reviewed and adjusted in accordance with the customary practice of the Department of Environmental Protection and the Underground Storage Tank Advisory Committee; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which was received:

Your Committee on Rules has had under consideration:

S. C. R. 47, Requesting Joint Committee on Government and Finance study governmental agencies involved in resolving problem of flooding of streams,

S. C. R. 65, Requesting Joint Committee on Government and Finance study commercial property and casualty insurance,

And,

S. C. R. 78, Requesting Joint Committee on Government and Finance study Wage Payment and Collection Act ,

And reports the same back with the recommendation that they each be adopted.

Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 653, Providing that certain judges not required to contribute to retirement system,

And reports the same back with the recommendation that it do pass.
Chairman Michael, from the Committee on Finance, submitted the following report, which was received:

Your Committee on Finance has had under consideration:
Com. Sub. for S. B. 513, Relating to jobs investment trust board,

Com. Sub. for S. B. 516, Establishing eastern panhandle highway authority,

S. B. 678, Providing reduced tax rate applies to certain underground mines,

Com. Sub. for S. B. 700, Requiring state agencies make timely payments for telecommunications services; other provisions,

And,

Com. Sub. for S. B. 701, Authorizing certain taxes imposed by municipalities,

At the respective requests of Delegate Staton, and by unanimous consent, Com. Sub. for S. B. 513 was taken up for immediate consideration, read a first time and then ordered to second reading.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub for S. B. 518, Relating to policemen and firemen required to work during holidays; compensation,

And reports the same back, with amendment, with the recommendation that it do pass, as amended.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 554, Continuing guardianship or conservatorship of deceased protected persons,

And reports the same back with the recommendation that it do pass.

Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 50, Relating to waste tire remediation; liability,

Com. Sub. for S. B. 89, Relating to beneficial use of water treatment plant sludge,

Com. Sub. for S. B. 119, Enhancing criminal penalties for obtaining money, property and services by false pretenses from persons over certain age,

S. B. 529, Repealing section of code relating to working prisoners by county courts,

S. B. 532, Repealing section of code relating to inspection of jails,

Com. Sub. for S. B. 629, Creating Small Estate Probate Relief Act of 2004,

S. B. 688, Relating to wages election official can receive and not be considered for unemployment compensation,
And,


S. B. 731, Relating to promulgation of rules by department of administration for compliance standards for state leased property,

And reports the same back, by unanimous vote of the Committee, with the recommendation that they each do pass, as amended.


Messages from the Executive


Mr. Speaker, Mr. Kiss, presented the annual report for the West Virginia Division of Corrections, in accordance with section twenty, article one, chapter five of the code; which was filed in the Clerk's Office.


Messages from the Senate


A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 2268, Teachers and substitute teachers as professional educators and addressing the critical need and shortage thereof.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:

"That §18-7A-38 of the code of West Virginia, 1931, as amended, be amended and reenacted; that §18A-2-3 of said code be amended and reenacted; and that §18C-4-2 of said code be amended and reenacted, all to read as follows:


CHAPTER 18. EDUCATION.

ARTICLE 7A. STATE TEACHERS RETIREMENT SYSTEM.
§18-7A-38. Maximum number of days a retired teacher may accept employment; calculating days worked for retirants engaged in substitute teaching.


(a) The Legislature finds that:

(1) The consolidated public retirement board has determined that retired substitute teachers should not perform substitute teaching without limit;

(2) The consolidated public retirement board has established, by rule, a maximum number of days in which a retired teacher may accept employment prior to having his or her retirement benefit reduced; and

(3) There have been inconsistencies in the manner in which county boards calculate the maximum number of days established by rule.

(b) The consolidated public retirement board may not set forth in rule a maximum number of days in which a retired teacher may accept employment prior to having his or her retirement benefit reduced that is less than one hundred forty days.

(b) (c) For the purpose of calculating whether a retired substitute teacher has exceeded the maximum number of days in which a substitute teacher may accept employment without incurring a reduction in his or her retirement benefit, the number of days worked shall be determined by:

(1) Totaling the number of hours worked; and

(2) Dividing by the standard number of hours that a full-time teacher works per day.
CHAPTER 18A. SCHOOL PERSONNEL.

ARTICLE 2. SCHOOL PERSONNEL.

§18A-2-3. Employment of substitute teachers and retired teachers as substitutes in areas of critical need and shortage; employment of prospective employable professional personnel.

(a) The county superintendent, subject to approval of the county board, may employ and assign substitute teachers to any of the following duties: (a) (1) To fill the temporary absence of any teacher or an unexpired school term made vacant by resignation, death, suspension or dismissal; (b) (2) to fill a teaching position of a regular teacher on leave of absence; and (c) (3) to perform the instructional services of any teacher who is authorized by law to be absent from class without loss of pay, providing the absence is approved by the board of education in accordance with the law. The substitute shall be a duly certified teacher.
(b) Notwithstanding any other provision of this code to the contrary, a substitute teacher who has been assigned as a classroom teacher in the same classroom continuously for more than one half of a grading period and whose assignment remains in effect two weeks prior to the end of the grading period, shall remain in the assignment until the grading period has ended, unless the principal of the school certifies that the regularly employed teacher has communicated with and assisted the substitute with the preparation of lesson plans and monitoring student progress or has been approved to return to work by his or her physician. For the purposes of this section, teacher and substitute teacher, in the singular or plural, mean professional educator as defined in section one, article one, of this chapter.
(c)(1) The Legislature hereby finds and declares that due to a shortage of qualified substitute teachers, a compelling state interest exists in expanding the use of retired teachers to provide service as substitute teachers in areas of critical need and shortage. The Legislature further finds that diverse circumstances exist among the counties for the expanded use of retired teachers as substitutes. For the purposes of this subsection, 'area of critical need and shortage' means an area of certification and training in which the number of available substitute teachers in the county who hold certification and training in that area and who are not retired is insufficient to meet the projected need for substitute teachers.
(2) A person receiving retirement benefits under the provisions of article seven-a of this chapter or who is entitled to retirement benefits during the fiscal year in which that person retired may accept employment as a substitute teacher for an unlimited number of days each fiscal year without affecting the monthly retirement benefit to which the retirant is otherwise entitled if the following conditions are satisfied:
(A) The county board adopts a policy recommended by the superintendent to address areas of critical need and shortage;
(B) The policy sets forth the areas of critical need and shortage in the county in accordance with the definition of area of critical need and shortage set forth in subdivision (1) of this subsection;
(B) (C) The policy provides for the employment of retired teachers as substitute teachers during the school year on an expanded basis in areas of critical need and shortage as provided in this subsection;
(D) The policy provides that a retired teacher may be employed as a substitute teacher in an area of critical need and shortage on an expanded basis as provided in this subsection only when no other teacher who holds certification and training in the area and who is not retired is available and accepts the substitute assignment;
(C) (E) The policy is effective for one school year only and is subject to annual renewal by the county board;
(D) (F) The state board approves the policy and the use of retired teachers as substitute teachers on an expanded basis in areas of critical need and shortage as provided in this subsection; and
(E) (G) Prior to employment of such a substitute teacher beyond the post-retirement employment limitations established by the consolidated public retirement board, the superintendent of the affected county submits to the consolidated public retirement board, in a form approved by the retirement board, an affidavit signed by the superintendent stating the name of the county, the fact that the county has adopted a policy to employ retired teachers as substitutes to address areas of critical need and shortage and the name or names of the person or persons to be employed pursuant to the policy.
(3) Any person who retires and begins work as a substitute teacher within the same employment term shall lose those retirement benefits attributed to the annuity reserve, effective from the first day of employment as a retiree substitute in such that employment term and ending with the month following the date the retiree ceases to perform service as a substitute.
(4) With respect to the expanded substitute service provided in this subsection, retired Retired teachers employed as such substitutes to perform expanded substitute service pursuant to this subsection are considered day-to-day, temporary, part-time employees. The substitutes are not eligible for additional pension or other benefits paid to regularly employed employees and shall not accrue seniority.
(5) When a retired teacher is employed as a substitute to fill a vacant position, the county board shall continue to post the vacant position until it is filled with a regularly employed teacher.
(5) (6) Until this subsection is expired pursuant to subdivision (6) (7) of this subsection, the state board, annually, shall report to the joint committee on government and finance prior to the first day of February of each year. Additionally, a copy shall be provided to the legislative oversight commission on education accountability. The report shall contain information indicating the effectiveness of the provisions of this subsection on expanding the use of retired substitute teachers to address areas of critical need and shortage.
(6) (7) The provisions of this subsection shall expire on the thirtieth day of June, two thousand three six.
(d)(1) Notwithstanding any other provision of this code to the contrary, each year a county superintendent may employ prospective employable professional personnel on a reserve list at the county level subject to the following conditions:
(A) The county board adopts a policy to address areas of critical need and shortage as identified by the state board. The policy shall include authorization to employ prospective employable professional personnel;
(B) The county board posts a notice of the areas of critical need and shortage in the county in a conspicuous place in each school for at least ten working days; and
(C) There are not any potentially qualified applicants available and willing to fill the position.
(2) Prospective employable professional personnel may only be employed from candidates at a job fair who have or will graduate from college in the current school year or whose employment contract with a county board has or will be terminated due to a reduction in force in the current fiscal year.
(3) Prospective employable professional personnel employed are limited to three full-time prospective employable professional personnel per one hundred professional personnel employed in a county or twenty-five full-time prospective employable professional personnel in a county, whichever is less.
(4) Prospective employable professional personnel shall be granted benefits at a cost to the county board and as a condition of the employment contract as approved by the county board.
(5) Regular employment status for prospective employable professional personnel may be obtained only in accordance with the provisions of section seven-a, article four of this chapter. (e) The state board annually shall review the status of employing personnel under the provisions of subsection (d) of this section and annually shall report to the legislative oversight commission on education accountability on or before the first day of November of each year. The report shall include, but not be limited to, the following:
(A) The counties that participated in the program;
(B) The number of personnel hired;
(C) The teaching fields in which personnel were hired;
(D) The venue from which personnel were employed;
(E) The place of residency of the individual hired; and
(F) The state board's recommendations on the prospective employable professional personnel program.


CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.

ARTICLE 4. UNDERWOOD-SMITH TEACHER SCHOLARSHIP PROGRAM.

§18C-4-2. Selection criteria and procedures.


(a) The governor shall designate an existing scholarship selection agency or panel to select the recipients of Underwood-Smith teacher scholarships who meet the eligibility criteria set forth in subsection (b) of this section. If no such agency or panel exists, the governor shall appoint a scholarship selection panel for this purpose which shall consist of seven persons representative of public school administrators, teachers, including preschool teachers, and parents.

(b) Eligibility for an Underwood-Smith teacher scholarship award shall be limited to West Virginia resident students who:

(1) Have graduated or are graduating from high school and rank in the top ten percent of their graduating class or the top ten percent statewide of those West Virginia students taking the American college test;

(2) Have a cumulative grade point average of at least three and twenty-five one hundredths on a possible scale of four after successfully completing two years of course work at an approved institution of higher education;

(3) Are public school aides or paraprofessionals as defined in section eight, article four, chapter eighteen-a of this code and who have a cumulative grade point average of at least three and twenty-five one hundredths on a possible scale of four after successfully completing two years of course work at an approved institution of higher education; or

(4) Are graduate students at the master's degree level who have graduated or are graduating in the top ten percent of their college graduating class.

(c) In accordance with the rules of the governing boards commission, the senior administrator vice chancellor for administration shall develop criteria and procedures for the selection of scholarship recipients that reflect the purposes of this article and the areas in which particular efforts will be made in the selection of scholars as set forth in section one of this article and which also may include, but not be limited to, the grade point average of the applicant, involvement in extracurricular activities, financial need, current academic standing and an expression of interest in teaching as expressed in an essay written by the applicant. Such criteria and procedures further may require the applicant to furnish letters of recommendation from teachers and others. It is the intent of the Legislature that academic abilities be the primary criteria for selecting scholarship recipients: Provided, That the qualified applicants with the highest academic abilities who intend to pursue teaching careers in areas of critical need and shortage as determined by the state board of education shall be given priority.

(d) In developing the selection criteria and procedures to be used by the panel, the senior administrator vice chancellor for administration shall solicit the views of public and private education agencies and institutions and other interested parties. These views: (1) Shall be solicited by means of written and published selection criteria and procedures in final form for implementation; and (2) may be solicited by means of public hearings on the present and projected teacher needs of the state or such any other methods as the senior administrator vice chancellor for administration may determine to be appropriate to gather such the information.

(e) The senior administrator vice chancellor for administration shall make application forms for Underwood-Smith teacher scholarships available to public and private high schools in the state and in other locations convenient to applicants, parents and others, and shall make an effort to attract students from low-income backgrounds, ethnic or racial minority students, students with disabilities, and women or minority students who show interest in pursuing teaching careers in mathematics and science and who are under represented in those fields."

And,

By amending the title of the bill to read as follows:

Com. Sub. for H. B. 2268 - "A Bill to amend and reenact §18-7A-38 of the code of West Virginia, 1931, as amended; to amend and reenact §18A-2-3 of said code; and to amend and reenact §18C-4-2 of said code, all relating to the maximum number of days a retired teacher may accept employment; the employment of retired teachers in areas of critical need and shortage; defining area of critical need and shortage; adding conditions for expanding use of retired teachers to provide service as substitute teachers in areas of critical need and shortage; requiring certain vacancies to continue to be posted; providing for future expiration of provisions; providing priority for certain applicants for the Underwood-Smith scholarships; and technical amendments."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 518), and there were--yeas 94, nays none, absent and not voting 6, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell, Fleischauer, Louisos and Mezzatesta.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2268) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 519), and there were--yeas 93, nays 1, absent and not voting 6, with the nays and absent and not voting being as follows:

Nays: Martin.

Absent And Not Voting: Coleman, Faircloth, Ferrell, Fleischauer, Louisos and Mezzatesta.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2268) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:

Com. Sub. for H B. 2914, Relating to the rehabilitation and liquidation of insurers subject to the regulatory authority of the West Virginia insurance commissioner.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4033, Authorizing the issuance of new parkway revenue bonds.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 16A. WEST VIRGINIA PARKWAYS, ECONOMIC DEVELOPMENT AND TOURISM AUTHORITY.
§17-16A-11. Parkway revenue bonds--West Virginia turnpike; related projects.


(a) The parkways authority is hereby authorized to provide by resolution, at one time or from time to time, for the issuance of parkway revenue bonds of the state in an aggregate outstanding principal amount not to exceed, from time to time, two hundred eighty-three million dollars for the purpose of paying: (i) All or any part of the cost of the West Virginia turnpike, which cost may include, but not be limited to, an amount equal to the state funds used to upgrade the West Virginia turnpike to federal interstate standards; (ii) all or any part of the cost of any one or more parkway projects that involve improvements to or enhancements of the West Virginia turnpike, including, without limitation, lane-widening on the West Virginia turnpike and that are or have been recommended by the parkways authority's traffic engineers or consulting engineers or by both of them prior to the issuance of parkway revenue bonds for the project or projects; and (iii) to the extent permitted by federal law, all or any part of the cost of any related parkway project. For purposes of this section eleven only, a 'related parkway project' means any information center, visitors' center or rest stop, or any combination thereof, and any expressway, turnpike, trunkline, feeder road, state local service road or park and forest road which connects to or intersects with the West Virginia turnpike and is located within seventy-five miles of said the turnpike as it exists on the first day of June, one thousand nine hundred eighty-nine, or any subsequent expressway, trunkline, feeder road, state local service road or park and forest road constructed pursuant to this article: Provided, That nothing herein in this section shall be construed as prohibiting the parkways authority from issuing parkway revenue bonds pursuant to section ten of this article for the purpose of paying all or any part of the cost of any such related parkway project: Provided, however, That none of the proceeds of the issuance of parkway revenue bonds under this section shall be used to pay all or any part of the cost of any economic development project, except as provided in section twenty-three of this article: Provided further, That nothing herein in this section shall be construed as prohibiting the parkways authority from issuing additional parkway revenue bonds to the extent permitted by applicable federal law for the purpose of constructing, maintaining and operating any highway constructed in whole or in part with money obtained from the Appalachian regional commission so as long as said the highway connects to the West Virginia turnpike as it existed as of the first day of June, one thousand nine hundred eighty-nine: And provided further, That, for purposes of this section, in determining the amount of bonds outstanding, from time to time, within the meaning of this section: Original par amount or original stated principal amount at the time of issuance of bonds shall be used to determine the principal amount of bonds outstanding, except that the amount of parkway revenue bonds outstanding under this section may not include any bonds that have been retired through payment, defeased through the deposit of funds irrevocably set aside for payment or otherwise refunded so that they are no longer secured by toll revenues of the West Virginia turnpike: And provided further, That the authorization to issue bonds under this section is in addition to the authorization and power to issue bonds under any other section of this code: And provided further, That, without limitation of the authorized purposes for which parkway revenue bonds are otherwise permitted to be issued under this section, and without increasing the maximum principal par amount of parkway revenue bonds permitted to be outstanding, from time to time, under this section, the authority is specifically authorized by this section to issue, at one time or from time to time, by resolution or resolutions under this section, parkway revenue bonds under this section for the purpose of paying all or any part of the cost of one or more parkway projects that: (i) Consist of enhancements or improvements to the West Virginia turnpike, including, without limitation, projects involving lane widening, resurfacing, surface replacement, bridge replacement, bridge improvements and enhancements, other bridge work, drainage system improvements and enhancements, drainage system replacements, safety improvements and enhancements, and traffic flow improvements and enhancements; and (ii) have been recommended by the authority's consulting engineers or traffic engineers, or both, prior to the issuance of the bonds. Except as otherwise specifically provided in this section, the issuance of parkway revenue bonds pursuant to this section, the maturities and other details thereof of the bonds, the rights of the holders thereof of the bonds, and the rights, duties and obligations of the parkways authority in respect of the same bonds shall be governed by the provisions of this article insofar as the same may be the provisions are applicable.

(b) Notwithstanding the provisions of subsection (a) of this section, no additional bonds authorized by the amendments to this section enacted during the regular session of the Legislature in the year two thousand four may be issued until the parkways authority has adopted by written resolution a final, irrevocable decision to fully fund and complete the construction of a Shady Spring connector and interchange connecting to the West Virginia turnpike from its toll funds or from the proceeds of bonds issued for that purpose pursuant to subsection (a) of this section, or from both, or funded, in whole or in part, by federal highway funds if they are available."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 520), and there were--yeas 80, nays 15, absent and not voting 5, with the nays and absent and not voting being as follows:

Nays: Armstead, Ashley, Blair, Border, Calvert, Carmichael, Duke, Ellem, Frich, Hall, Howard, Overington, Schoen, Sobonya and Walters.

Absent And Not Voting: Coleman, Faircloth, Ferrell, Fleischauer and Louisos.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4033) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced the concurrence by the Senate as to the changed effective date, to take effect from passage, of

H. B. 4040, Relating to criteria for making decisions affecting the filling of vacancies if one or more permanently employed instructional personnel apply for a classroom teaching position.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:

Com. Sub for H. B. 4205, Authorizing the department of health and human resources to promulgate legislative rules.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN RESOURCES TO PROMULGATE LEGISLATIVE RULES.
§64-5-1. Department of health and human resources.

The legislative rule filed in the state register on the eighth day of July, two thousand three, authorized under the authority of section two, article five-q, chapter sixteen of this code, modified by the department of health and human resources to meet the objections of the legislative rule- making review committee and refiled in the state register on the second day of December, two thousand three, relating to the department of health and human resources (eligibility standards for economic assistance from the James 'Tiger' Morton catastrophic illness fund, 72 CSR 1), is authorized, with the following amendments:

On page one, section 2, lines one and two, by striking out the words 'has a catastrophic illness and has applied' and inserting in lieu there of the word 'applies';

On page one, subsection 2.1, line three, by striking out the word 'that' and inserting in lieu thereof the word 'catastrophic';

On page two, subsection 3.4, after the words 'A life-threatening illness' by striking out the remainder of the subsection and inserting in lieu thereof the words 'presenting an applicant with an imminent risk of death.';

On page two, subsection 3.6, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'3.6. Eligible applicant. - An applicant who is suffering from a catastrophic illness and who meets the financial eligibility standards established by subsection 6.3 of this rule.';

On page two, section 4, by striking out the section in its entirety and inserting in lieu thereof the following:

'4.1. A West Virginia citizen may request economic assistance from the commission by contacting the commission and providing information by telephone.

4.2. Any person who obtains or attempts to obtain funds from the commission by willful, false statement or misrepresentation or by impersonation or any other fraudulent device may be investigated by the Department of Health and Human Resources, Office of Inspector General, and may be prosecuted to the full extent of the law.';

On page four, section 5, by striking out the section in its entirety and renumbering subsequent sections accordingly;

On page two, section 6, by striking out the words 'If funding is available, the Commission may consider an applicant eligible' and inserting in lieu thereof the words 'An applicant is eligible';

On page three, subsection 8.1, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'8.1. Requests for pharmaceutical purchases other than those approved under section 7 of this rule;';

On page three, subsection 8.3, line one, after the word 'days', by inserting the words 'or more';

On page four, subsection 9.1, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'9.1 If funding is available, the commissioner may order an award of economic assistance to an eligible applicant.';

On page four, subsection 9.2, line two, after the words 'amount of an award.' by striking out the remainder of the subsection and inserting in lieu thereof the following:

'The decision to make an award is within the discretion of the commission or, where permitted by ths rule, its executive director.';

On page four, subsection 9.3, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'9.3. Within each budget year, similarly situated applicants shall be treated similarly.';

On page four, section 10, by striking out the section in its entirety and inserting in lieu thereof the following:

'Records of the Commission are confidential and may not be disclosed except as required by W. Va. Code §29B-1-1 et seq. Any employee of the commission who has access to confidential information regarding an applicant must sign a written statement acknowledging that he or she fully understands and will maintain the confidential nature of the information.';

And,

On page five, section 11, line eight, after the word 'conclusion.', by striking out the quotation marks.
§64-5-2. Division of health.

(a) The legislative rule filed in the state register on the twenty-fourth day of July, two thousand three, authorized under the authority of section five, article five-d, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (assisted living residences, 64 CSR 14), is authorized.

(b) The legislative rule filed in the state register on the twenty-second day of July, two thousand three, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the division of health 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 division of health (cross connection and backflow prevention, 64 CSR 15), is authorized.

(c) The legislative rule filed in the state register on the twenty-second day of July, two thousand three, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the division of health 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 division of health (certification of backflow prevention assembly testers, 64 CSR 25), is authorized with the following amendment:

'On page two, section four, following subdivision 4.1.b., by striking the remainder of the subsection and inserting the following:

'and

4.1.c. Either:

4.1.c.1. Complete and pass all parts of an approved forty (40) hour course of instruction in theory, design, performance, testing and maintenance of backflow prevention assemblies; or

4.1.c.2. Meet recertification, reinstatement or reciprocity requirements, as provided in sections 7 or 8 of this rule.'.'

(d) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section nine-c, article seven-b, chapter fifty-five of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (statewide trauma/emergency care system, 64 CSR 27), is authorized.

(e) The legislative rule filed in the state register on the eleventh day of July, two thousand three, authorized under the authority of section four, article one, chapter sixteen of this code, relating to the division of health (public water systems, 64 CSR 3), is authorized.

(f) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the authority of section four-a, article thirty-five, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (childhood lead screening, 64 CSR 42), is authorized with the following amendments:

'On page two, section three, line five, following the word 'Screening' and the dash, by striking out the remainder of the sentence and inserting in lieu thereof the following: 'The assessment of a child's environment and social conditions to determine risk for lead poisoning.';

On page two, section four, line nine, following the words 'years for' by inserting the words 'risk of';

On page two, section four, line twelve, following the word 'screened', by inserting the words 'using a risk assessment';

On page two, section four, line thirteen, following the word 'age', by striking out the words 'shall be screened';

On page two, section four, line fifteen, following the word 'lead', by inserting the words 'risk assessment';

On page two, section four, line seventeen, following the word 'conducted', by striking out the comma and inserting the word 'and';

On page two, section four, line seventeen, following the word 'name', by striking out the remainder of the sentence;

On page two, section four, following line seventeen, by inserting the following:

'4.1.c. If a child is determined to be at risk for lead poisoning, the health care provider shall perform or authorize a blood test to identity the blood lead level.';

On page three, section six, line eight, following the word 'quarterly', by inserting the word 'testing';

On page three, section six, line eight, following the word 'results', by striking out the words 'of the screening'; and

On page three, section seven, line thirteen, following the word 'child's', by inserting the word 'name' and a comma'.

(g) 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 one, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (fees for services, 64 CSR 51), is authorized, with the following amendments:

On page one, subsection 3.2 after the words 'Ambulatory Surgical' by striking out the words 'Center (ASC)' and inserting in lieu thereof the words 'Facility (ASF)';

On page twenty-one, Appendix A. Laboratory Service Fees., subparagraph l.A.1.8.l, after the words 'Active Substances', by striking out the numbers '$12.00' and inserting in lieu thereof the numbers '$15.00';

On page twenty-one, Appendix A. Laboratory Service Fees., after subparagraph l.A.1.8.l., by inserting a new subparagraph, designated subparagraph l.A.1.8.l. and renumbering the remaining subsections, to read as follows:

'm. Nitrate
$15.00';


On page twenty-one, Appendix A. Laboratory Service Fees., subsection 1.B., by renumbering the subdivisions in the subsection;

On page twenty-two, Appendix A. Laboratory Service Fees., after subparagraph 1.B.3.A.3. by adding a new subparagraph, designated subparagraph 1.B.3.A.4., to read as follows:

'3. All Other Organic Tests$800.00

4. Total Organic Carbon (TOC) and/or Specific Ultraviolet Absorption (SUVA)$200.00'
and by renumbering the subsequent subparagraphs accordingly;

On page twenty-two, Appendix A. Laboratory Service Fees., paragraph 1.B.4.A., after the words 'Newborn Screening', by striking out the numbers '$15.00' and inserting in lieu thereof the numbers '$28.00';

On page twenty-seven, Appendix C. Maximum Health Facility Fees., subsection 2.B., after the words 'Ambulatory Surgical', by striking out the word 'Center' and inserting in lieu thereof the word 'Facility';

And,

On page twenty-eight, Appendix C. Maximum Health Facility Fees., subsection 3.B., after the words 'Ambulatory Surgical', by striking out the word 'Center' and inserting in lieu thereof the word 'Facility'.

(h) The legislative rule filed in the state register on the twenty-fifth day of July, two thousand three, authorized under the authority of section five, article five-d, chapter sixteen of this code, relating to the division of health (residential board and care homes, 64 CSR 65), is authorized.

(i) The legislative rule filed in the state register on the twenty-fifth day of July, two thousand three, authorized under the authority of section seven, article forty, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (birth defects information system, 64 CSR 81), is authorized."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:

On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. AUTHORIZATION FOR DEPARTMENT OF HEALTH AND HUMAN RESOURCES TO PROMULGATE LEGISLATIVE RULES.
§64-5-1. Department of health and human resources.

The legislative rule filed in the state register on the eighth day of July, two thousand three, authorized under the authority of section two, article five-q, chapter sixteen of this code, modified by the department of health and human resources to meet the objections of the legislative rule- making review committee and refiled in the state register on the second day of December, two thousand three, relating to the department of health and human resources (eligibility standards for economic assistance from the James 'Tiger' Morton catastrophic illness fund, 72 CSR 1), is authorized, with the following amendments:

On page one, section 2, lines one and two, by striking out the words 'has a catastrophic illness and has applied' and inserting in lieu there of the word 'applies';

On page one, subsection 2.1, line three, by striking out the word 'that' and inserting in lieu thereof the word 'catastrophic';

On page two, subsection 3.4, after the words 'A life-threatening illness' by striking out the remainder of the subsection and inserting in lieu thereof the words 'presenting an applicant with an imminent risk of death.';

On page two, subsection 3.6, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'3.6. Eligible applicant. - An applicant who is suffering from a catastrophic illness and who meets the financial eligibility standards established by subsection 6.3 of this rule.';

On page two, section 4, by striking out the section in its entirety and inserting in lieu thereof the following:

'4.1. A West Virginia citizen may request economic assistance from the commission by contacting the commission and providing information by telephone.

4.2. Any person who obtains or attempts to obtain funds from the commission by willful, false statement or misrepresentation or by impersonation or any other fraudulent device may be investigated by the Department of Health and Human Resources, Office of Inspector General, and may be prosecuted to the full extent of the law.';

On page four, section 5, by striking out the section in its entirety and renumbering subsequent sections accordingly;

On page two, section 6, by striking out the words 'If funding is available, the Commission may consider an applicant eligible' and inserting in lieu thereof the words 'An applicant is eligible';

On page three, subsection 8.1, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'8.1. Requests for pharmaceutical purchases other than those approved under section 7 of this rule;';

On page three, subsection 8.3, line one, after the word 'days', by inserting the words 'or more';

On page four, subsection 9.1, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'9.1 If funding is available, the commissioner may order an award of economic assistance to an eligible applicant.';

On page four, subsection 9.2, line two, after the words 'amount of an award.' by striking out the remainder of the subsection and inserting in lieu thereof the following:

'The decision to make an award is within the discretion of the commission or, where permitted by ths rule, its executive director.';

On page four, subsection 9.3, by striking out the subsection in its entirety and inserting in lieu thereof the following:

'9.3. Within each budget year, similarly situated applicants shall be treated similarly.';

On page four, section 10, by striking out the section in its entirety and inserting in lieu thereof the following:

'Records of the Commission are confidential and may not be disclosed except as required by W. Va. Code §29B-1-1 et seq. Any employee of the commission who has access to confidential information regarding an applicant must sign a written statement acknowledging that he or she fully understands and will maintain the confidential nature of the information.';

And,

On page five, section 11, line eight, after the word 'conclusion.', by striking out the quotation marks.
§64-5-2. Division of health.

(a) The legislative rule filed in the state register on the twenty-fourth day of July, two thousand three, authorized under the authority of section five, article five-d, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (assisted living residences, 64 CSR 14), is authorized.

(b) The legislative rule filed in the state register on the twenty-second day of July, two thousand three, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the division of health 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 division of health (cross connection and backflow prevention, 64 CSR 15), is authorized.

(c) The legislative rule filed in the state register on the twenty-second day of July, two thousand three, authorized under the authority of section four, article one, chapter sixteen of this code, modified by the division of health 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 division of health (certification of backflow prevention assembly testers, 64 CSR 25), is authorized with the following amendment:

'On page two, section four, following subdivision 4.1.b., by striking the remainder of the subsection and inserting the following:

'and

4.1.c. Either:

4.1.c.1. Complete and pass all parts of an approved forty (40) hour course of instruction in theory, design, performance, testing and maintenance of backflow prevention assemblies; or

4.1.c.2. Meet recertification, reinstatement or reciprocity requirements, as provided in sections 7 or 8 of this rule.'.'

(d) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section nine-c, article seven-b, chapter fifty-five of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (statewide trauma/emergency care system, 64 CSR 27), is authorized.

(e) The legislative rule filed in the state register on the eleventh day of July, two thousand three, authorized under the authority of section four, article one, chapter sixteen of this code, relating to the division of health (public water systems, 64 CSR 3), is authorized.

(f) The legislative rule filed in the state register on the twenty-eighth day of July, two thousand three, authorized under the authority of section four-a, article thirty-five, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (childhood lead screening, 64 CSR 42), is authorized with the following amendments:

'On page two, subsection 3.6, line one, following the word 'Screening' and the dash, by striking out the remainder of the sentence and inserting in lieu thereof the following: 'The assessment of a child's environment and social conditions to determine risk for lead poisoning.';

On page two, subsection 4.1, line two, following the words 'years for' by inserting the words 'risk of';

On page two, subdivision 4.1.a, line one, following the word 'screened', by inserting the words 'using a risk assessment';

On page two, subdivision 4.1.a, line two, following the word 'age', by striking out the words 'shall be screened';

On page two, subdivision 4.1.b, line one, following the word 'lead', by inserting the words 'risk assessment';

On page two, subdivision 4.1.b, line three, following the word 'conducted', by striking out the comma and inserting the word 'and';

On page two, subdivision 4.1.b, line three, following the word 'name', by striking out the remainder of the sentence.

On page two, section four, following subdivision 4.1.b, by inserting the following:

'4.1.c. If a child is determined to be at risk for lead poisoning, the health care provider shall perform or authorize a blood test to identity the blood lead level.'

On page three, section six, line two, following the word 'quarterly', by inserting the word 'testing';

On page three, section six, line two, following the word 'results', by striking out the words 'of the screening';

And

On page three, subsection 7.2, line two, following the word 'child's', by inserting the word 'name' and a comma.'

(g) 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 one, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (fees for services, 64 CSR 51), is authorized, with the following amendments:

On page one, subsection 3.2 after the words 'Ambulatory Surgical' by striking out the words 'Center (ASC)' and inserting in lieu thereof the words 'Facility (ASF)';

On page twenty-one, Appendix A. Laboratory Service Fees., subparagraph l.A.1.8.l, after the words 'Active Substances', by striking out the numbers '$12.00' and inserting in lieu thereof the numbers '$15.00';

On page twenty-one, Appendix A. Laboratory Service Fees., after subparagraph l.A.1.8.l., by inserting a new subparagraph, designated subparagraph l.A.1.8.l. and renumbering the remaining subsections, to read as follows:

'm. Nitrate
$15.00';


On page twenty-one, Appendix A. Laboratory Service Fees., subsection 1.B., by renumbering the subdivisions in the subsection;

On page twenty-two, Appendix A. Laboratory Service Fees., after subparagraph 1.B.3.A.3. by adding a new subparagraph, designated subparagraph 1.B.3.A.4., to read as follows:

'3. All Other Organic Tests$800.00

4. Total Organic Carbon (TOC) and/or Specific Ultraviolet Absorption (SUVA)$200.00'
and by renumbering the subsequent subparagraphs accordingly;

On page twenty-two, Appendix A. Laboratory Service Fees., paragraph 1.B.4.A., after the words 'Newborn Screening', by striking out the numbers '$15.00' and inserting in lieu thereof the numbers '$28.00';

On page twenty-seven, Appendix C. Maximum Health Facility Fees., subsection 2.B., after the words 'Ambulatory Surgical', by striking out the word 'Center' and inserting in lieu thereof the word 'Facility';

And,

On page twenty-eight, Appendix C. Maximum Health Facility Fees., subsection 3.B., after the words 'Ambulatory Surgical', by striking out the word 'Center' and inserting in lieu thereof the word 'Facility'.

(h) The legislative rule filed in the state register on the twenty-fifth day of July, two thousand three, authorized under the authority of section five, article five-d, chapter sixteen of this code, relating to the division of health (residential board and care homes, 64 CSR 65), is authorized.

(i) The legislative rule filed in the state register on the twenty-fifth day of July, two thousand three, authorized under the authority of section seven, article forty, chapter sixteen of this code, modified by the division of health to meet the objections of the legislative rule-making review committee and refiled in the state register on the eighth day of December, two thousand three, relating to the division of health (birth defects information system, 64 CSR 81), is authorized. "

The bill, as amended by the Senate, and as further amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 521), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Walters.

Absent And Not Voting: Coleman, Faircloth and Ferrell.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4205) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 522), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth and Ferrell.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for 4205) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.




A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4211, Authorizing the Department of Transportation to promulgate legislative rules.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 8. AUTHORIZATION FOR DEPARTMENT OF TRANSPORTATION TO PROMULGATE LEGISLATIVE RULES.
§64-8-1. Division of highways.

(a) The legislative rule filed in the state register on the first day of August, two thousand three, authorized under the authority of section eleven, article twenty-two, chapter seventeen of this code, modified by the division of highways to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-seventh day of January, two thousand four, relating to the division of highways (use of state road rights-of-way and adjacent areas, 157 CSR 6), is authorized.

(b) The legislative rule filed in the state register on the eighteenth day of July, two thousand three, authorized under the authority of section seven, article eighteen, chapter twenty-two of this code, relating to the division of highways (transportation of hazardous wastes upon the roads and highways, 157 CSR 7), is authorized, with the following amendment:

On page four, subdivision 6.3.2, on the third line, by striking out the words 'Division of Water and' and inserting in lieu thereof the words 'Office of'.
§64-8-2. Division of motor vehicles.

The legislative rule filed in the state register on the nineteenth day of November, two thousand three, authorized under the authority of section nine, article two, chapter seventeen-a of this code, relating to the division of motor vehicles (administrative due process, 91 CSR 1), is authorized, with the following amendment:

On page five, subdivision 3.7.2., after the period, by inserting the following: 'Provided, That, where the arresting officer fails to appear at the hearing, but the licensee appears, the revocation or suspension of license may not be based solely on the arresting officer's affidavit or other documentary evidence submitted by the arresting officer.';

On page six, paragraph 3.9.4.a., by striking out the subdivision in its entirety and inserting in lieu thereof the following:

'a. The party carrying the burden of proof has the initial opportunity to present evidence.';

On page six, paragraph 3.9.4.b, after the words 'and accept as', by striking out the word 'evidence' and inserting in lieu thereof the words 'part of the record'."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 523), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Walters.

Absent And Not Voting: Coleman, Faircloth and Ferrell.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4211) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 524), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell and Leggett

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4211) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
(Speaker Pro Tempore Pino in the Chair)


A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4217, Authorizing the department of tax and revenue to promulgate legislative rules.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page three, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 7. AUTHORIZATION FOR DEPARTMENT OF TAX AND REVENUE TO PROMULGATE LEGISLATIVE RULES.
§64-7-1. Division of banking.

The legislative rule filed in the state register on the fifteenth day of July, two thousand three, authorized under the authority of section three, article seventeen, chapter thirty-one, of this code, modified by the division of banking to meet the objections of the legislative rule-making review committee and refiled in the state register on the twentieth day of January, two thousand four, relating to the division of banking (residential mortgage lenders, brokers and loan originators, 106 CSR 5), is authorized, with the following amendment:

On page three, after section 3.1, by adding a new section to read '3.2 All records required to be maintained by section 3.1 shall be kept in the specific loan file relating to the individual borrower or loan applicant except for those records listed in subsections 3.1.z, 3.1.aa, 3.1.bb and 3.1.cc.';

On page four, after section 4.1, by adding a new section to read '4.2 All records required to be maintained by section 4.1 shall be kept in the specific loan file relating to the individual borrower or loan applicant except for those records listed in subsections 4.1.g, 4.1.h, 4.1.i, 4.1.j and 4.1.k.';

On page five, after section 5.1, by adding a new section to read '5.2 All records required to be maintained by section 5.1 shall be kept in the specific loan file relating to the individual borrower or loan applicant except for those records listed in subsections 5.1.j, 5.1.k, 5.1.l, 5.1.m and 5.1.n.';

And,

On page seven, after section 6.1, by adding a new section to read '6.2 All records required to be maintained by section 6.1 shall be kept in the specific loan file relating to the individual borrower or loan applicant except for those records listed in subsections 6.1.t, 6.1.u, 6.1.v, 6.1.w and 6.1.y.'
§64-7-2. Insurance commissioner.

(a) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section ten, article two, chapter thirty-three, of this code, modified by the insurance commissioner to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourth day of December, two thousand three, relating to the insurance commissioner (licensing and conduct of individual insurance producers, agencies and solicitors, 114 CSR 2), is authorized.

(b) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section ten, article two, chapter thirty-three, of this code, modified by the insurance commissioner to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourth day of December, two thousand three, relating to the insurance commissioner (surplus lines insurance, 114 CSR 20), is authorized with the following amendments:

On page three, by striking out all of subdivision 4.1 and inserting in lieu thereof the following:

'4.1 Diligent Search - In accordance with the provisions of West Virginia code §33-12C- 5(a)(3), insurance coverage written by a surplus lines insurer and placed by a surplus lines licensee may not be procured until a diligent search has been made by the individual insurance producer to place the risk with an admitted insurer. The surplus lines licensee shall submit to the commissioner a sworn notarized affidavit, as provided in subsection 4.5 of this rule, that a diligent search has been made by the individual insurance producer to place the risk with licensed insurers authorized to write and actually writing the particular risk sought to be placed in the excess lines market. This affidavit shall be maintained, as required by West Virginia code §33-12C-16, as part of the full and true record of each surplus lines contract procured.';

On page three, section 4 (subdivision 4.2.a.) following the word 'rule' and the period by inserting the following:

'The affidavit shall affirm that the insured was expressly advised prior to the placement of the insurance that:
the surplus lines insurer with which the insurance is to be placed is not an admitted authorized insurer in this state and is not subject to the commissioner's supervision; and,

in the event the surplus lines insurance becomes insolvent, claims will not be paid nor will unearned premiums be returned by any West Virginia insurance guaranty fund.';


On pages three and four by striking out all of subdivision 4.2.b. and inserting in lieu thereof the following:

'b. No individual insurance producer may solicit, procure, place, or renew any insurance with a nonadmitted insurer unless the producer has been unable to procure the requested insurance from an authorized insurer after conducting a diligent search. A diligent search requires the individual insurance producer to contact as many insurers as the individual insurance producer represents, that customarily write the kind of insurance requested by the insured. A diligent search is presumed if declinations are received from each authorized insured contacted.';

AND,

On pages eleven and twelve, by striking out all of subdivision 7.2.b. and inserting in lieu thereof the following:

'b. Insurance coverages and classes not included on the export list may only be placed with surplus lines insurers once a diligent search has been made.'

(c) The legislative rule filed in the state register on the twenty-first day of March, two thousand three, authorized under the authority of section ten, article two, chapter thirty-three, of this code, relating to the insurance commissioner (Medicare supplement insurance, 114 CSR 24), is authorized.

(d) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section ten, article two, chapter thirty-three, of this code, modified by the insurance commissioner to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourth day of December, two thousand three, relating to the insurance commissioner (accident and sickness rate filing, 114 CSR 26), is authorized.

(e) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section ten, article two, chapter thirty-three, of this code, modified by the insurance commissioner 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 insurance commissioner (credit for reinsurance, 114 CSR 40), is authorized, with the following amendment:

On page one, subsection 2.2, line one, after the words 'alien ceding insurer', by inserting the words 'which is';

On page one, subsection 2.2, line two, by striking out the word 'that' and inserting in lieu thereof the word 'and';

On page two, subdivision 4.1.d, line four, after the words 'The accredited reinsurer', by striking out the word 'shall' and inserting in lieu thereof the word 'may';

On page three, subsection 5.1, line two, after the words 'insurer which', by inserting a comma:

On page three, subsection 5.1, line three, after the words 'on which', by striking out the remainder of the subsection and inserting in lieu thereof the words 'credit for reinsurance is claimed on the domestic insurer's statutory financial statement';

On page four, subdivision 6.2.b, line two, after the word 'underwriters', by inserting a comma;

On page four, subdivision 6.2.b, line three, after the words 'United States', by inserting a period, striking out the words 'and in' and inserting in lieu thereof the word 'In';

On page seven, subsection 6.6, line three, after the word 'dollars', by changing the comma to a semi-colon;

On page seven, subsection 6.6, line four, after the terms '(f) and (g)', by changing the comma to a semi-colon;

On page seven, subsection 6.6, line five, after the terms '(f) and (g)', by changing the comma to a semi-colon;

On page ten, subparagraph 6.6.f.1.B, line five, by striking out the word 'shall' and inserting in lieu thereof the word 'may';

On page eleven, subdivision 6.6.i, line three, by striking out the words 'shall be' and inserting in lieu thereof the word 'is';

On page fifteen, subdivision 9.1.i, line three, by striking out the words 'shall have' and inserting in lieu thereof the word 'has';

And,

On page fifteen, subdivision 9.1.j, line three, by striking out the words 'shall be' and inserting in lieu thereof the word 'is'.

(f) The legislative rule filed in the state register on the twenty-ninth day of July, two thousand three, authorized under the authority of section sixteen, article twelve-a, chapter twenty-nine, of this code, relating to the insurance commissioner (self-insurance pools for political subdivisions, 114 CSR 65), is authorized.
§64-7-3. Lottery commission.

(a) The legislative rule filed in the state register on the tenth day of July, two thousand three, authorized under the authority of section five, article twenty-two, chapter twenty-nine, of this code, modified by the lottery commission 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 lottery commission (state lottery rules, 179 CSR 1), is authorized.

(b) The legislative rule filed in the state register on the twenty-fourth day of July, two thousand three, authorized under the authority of section four hundred two, article twenty-two-b, chapter twenty-nine, of this code, modified by the lottery commission to meet the objections of the legislative rule-making review committee and refiled in the state register on the twelfth day of January, two thousand four, relating to the lottery commission (limited video lottery, 179 CSR 5), is authorized with the following amendment:

On page three, section two, subsection 2.13, line four, following the words 'operating on', by inserting the word 'that';

On page four, section two, subsection 2.15, line two, following the word 'Code', by striking out the citation '§11-14-2', and inserting in lieu thereof the citation '§11-14C-2';

On page seven, section five, subsection 5.2, line one, following the word 'subdivision', by striking out the citation '5.1.a', and inserting in lieu thereof the citation '5.1.b';

On page twenty-one, beginning on line four, by striking out section 30 in its entirety and redesignating the remaining sections and parts thereof accordingly;

And,

On page twenty-four, section 34.2, by changing the period at the end of the sentence to a colon and inserting the words: 'Provided, That a limited video lottery retailer may display a sign on the exterior of the establishment that states 'West Virginia Lottery Products available here,' which sign is of uniform size and design, no greater than twelve inches by twelve inches, produced and distributed to retailers by the lottery commission.'
§64-7-4. Racing commission.

(a) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section six, article twenty-three, chapter nineteen, of this code, modified by the racing commission 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 racing commission (thoroughbred racing, 178 CSR 1), is authorized.

(b) The legislative rule filed in the state register on the thirty-first day of July, two thousand three, authorized under the authority of section six, article twenty-three, chapter nineteen, of this code, relating to the racing commission (greyhound racing, 178 CSR 2), is authorized.
§64-7-5. Tax commissioner.

The legislative rule filed in the state register on the eighteenth day of February, two thousand three, authorized under the authority of section twenty-three, article ten, chapter eleven, of this code, modified by the tax commissioner 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 tax commissioner (alternative resolution of tax disputes, 110 CSR 10g), is authorized, with the following amendment:

On page two, subdivision 3.1.1, line two, after the word 'and', by inserting a comma;

On page two, subsection 3.5, line three, by striking the word 'shall' and inserting the in lieu thereof the word 'must';

One page two, subsection 3.5, line six, after the word 'assessment' by inserting a comma;

One page two, subsection 3.5, line six, by striking the word 'commence' and inserting in lieu thereof the work 'begin';

On page two, subdivision 3.5.1, line two, by striking the word 'that' and inserting in lieu thereof the word 'as';

On page three, subsection 4.1, line two, after the word 'coordinator' by inserting a comma;

On page three, subdivision 4.2.1, line three, after the word 'approved' by striking the comma and inserting in lieu thereof a period;

One page three, subdivision 4.2.1, line three, by striking the word 'and' and inserting in lieu thereof 'The conciliation coordinator or assistant conciliation coordinator';

On page three, subdivision 4.2.1, line four, following the word 'date' by striking the comma and inserting in lieu thereof a period;

On page three, subdivision 4.2.1, line five, by striking the word 'which' and inserting in lieu thereof the words 'The conference date';

On page three, subsection 4.4, line one by striking out the words 'without regard to the rules of evidence';

On page three, subsection 4.4, line three after the word 'dispute' by striking the period and inserting the words 'and without regard to the rules of evidence'."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 525), and there were--yeas 77, nays 18, absent and not voting 5, with the nays and absent and not voting being as follows:

Nays: Anderson, Armstead, Ashley, Blair, Border, Calvert, Carmichael, Duke, Frich, Hall, Louisos, Overington, Schoen, Sobonya, Sumner, Trump, Walters and Webb.

Absent And Not Voting: Coleman, Faircloth, Ferrell, Romine and Mr. Speaker, Mr. Kiss.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4217) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 526), and there were--yeas 81, nays 15, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Armstead, Ashley, Blair, Border, Calvert, Carmichael, Duke, Hall, Louisos, Overington, Schoen, Sobonya, Sumner, Walters and Webb.

Absent And Not Voting: Coleman, Faircloth, Ferrell and Mr. Speaker, Mr. Kiss.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4217) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect July 1, 2004, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4271, Requiring all schools to permit students to self-administer asthma medication.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. COUNTY BOARD OF EDUCATION.
§18-5-22b. Providing for self-administration of asthma medication; definitions; conditions; indemnity from liability; rules.


(a) For the purposes of this section, the following words have the meanings specified unless the context clearly indicates a different meaning:

(1) 'Medication' means asthma medicine, prescribed by:

(A) A physician licensed to practice medicine in all its branches; or

(B) A physician assistant who has been delegated the authority to prescribe asthma medications by a supervising physician; or (C) An advanced practice registered nurse who has a written collaborative agreement with a collaborating physician. Such agreement shall delegate the authority to prescribe the medications for a student that pertain to the student's asthma and that have an individual prescription label.

(2) 'Self-administration' or 'self-administer' means a student's discretionary use of prescribed asthma medication.

(b) A student enrolled in a public, private, parochial or denominational school located within this state may self-administer asthma medication subject to the following conditions:

(1) The parents or guardians of the student have provided to the school:

(A) A written authorization for the self-administration of asthma medication; and

(B) A written statement from the physician or advanced practice registered nurse which contains the name, purpose, appropriate usage and dosage of the student's medication and the time or times at which, or the special circumstances under which, the medication is to be administered;

(2) The student has demonstrated the ability and understanding to self-administer asthma medication by:

(A) Passing an assessment by the school nurse evaluating the student's technique of self- administration and level of understanding of the appropriate use of the asthma medication; or

(B) In the case of nonpublic schools that do not have a school nurse, providing to the school from the student's physician or advanced practice registered nurse written verification that the student has passed such an assessment; and

(3) The parents or guardians of the student have acknowledged in writing that they have read and understand a notice provided by the county board or nonpublic school that:

(A) The school, county school board or nonpublic school and its employees and agents are exempt from any liability, except for willful and wanton conduct, as a result of any injury arising from the self-administration of asthma medication by the student; and

(B) The parents or guardians indemnify and hold harmless the school, the county board of education or nonpublic school and its employees or guardians and agents against any claims arising out of the self-administration of the medication by the student.

(c) The information provided to the school pursuant to subsection (b) of this section shall be kept on file in the office of the school nurse or, in the absence of a school nurse, in the office of the school administrator.

(d) Permission for a student to self-administer asthma medication is effective for the school year for which it is granted and shall be renewed each subsequent school year if the requirements of this section are met.

(e) Permission to self-administer medication may be revoked if the administrative head of the school finds that the student's technique of self-administration and understanding of the use of the asthma medication is not appropriate or is willfully disregarded.

(f) A student with asthma who has met the requirements of this section may possess and use asthma medication:

(1) In school;

(2) At a school-sponsored activity;

(3) Under the supervision of school personnel; or

(4) Before or after normal school activities, such as before school or after school care on school operated property.

(g) The state board shall promulgate rules necessary to effectuate the provisions of this section in accordance with the provisions of article three-b, chapter twenty-nine-a of this code."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 527), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:

Nays: Schoen.

Absent And Not Voting: Coleman, Faircloth, Ferrell and Mr. Speaker, Mr. Kiss.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4271) passed.

Delegate Staton moved that the bill take effect July 1, 2004

On this question, the yeas and nays were taken (Roll No. 528), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell, Staton and Mr. Speaker, Mr. Kiss.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4271) takes effect July 1, 2004.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
(Mr. Speaker, Mr. Kiss, in the Chair)


A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:

Com. Sub. for H B. 4291, Continuing education requirements for licensed healthcare professionals on the subject of end-of-life care training.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4294, Removing the requirement that funds expended from the worthless check fund to pay for additional deputy clerks be proportionate to the time expended on worthless check cases.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:

Com. Sub. for H. B. 4297, Clarifying that the county board of education and its superintendent may designate the places where competency testing for service personnel will be held.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8e. Competency testing for service personnel.

(a) The state board of education shall develop and cause to be made available competency tests for all of the classification titles defined in section eight and listed in section eight-a of this article for service personnel. Each classification title defined and listed shall be is considered a separate classification category of employment for service personnel and shall have has a separate competency test, except for those class titles having Roman numeral designations, which shall be are considered a single classification of employment and shall have a single competency test. The cafeteria manager class title shall be is included in the same classification category as cooks and shall have has the same competency test. The executive secretary class title shall be is included in the same classification category as secretaries and shall have has the same competency test. The classification titles of chief mechanic, mechanic and assistant mechanic shall be are included in one classification title and shall have the same competency test.
(b) The purpose of these tests shall be is to provide county boards of education a uniform means of determining whether school service personnel employees who do not hold a classification title in a particular category of employment can meet the definition of the classification title in another category of employment as defined in section eight of this article. Competency tests shall may not be used to evaluate employees who hold the classification title in the category of their employment.
(c) The competency test shall consist consists of an objective written and/or or performance test, or both: Provided, That applicants shall have the opportunity of taking to take the written test orally if requested. Oral tests shall be are recorded mechanically and kept on file. Persons administering the oral test shall is administered by persons who do not know the applicant personally. The performance test for all classifications and categories other than bus operator shall be is administered by a vocational school which serves an employee of the county board of education at a location designated by the superintendent and approved by the board. The location may be a vocational school that serves the county. A standard passing score shall be is established by the state department of education for each test and shall be is used by county boards of education. The subject matter of each competency test shall be is commensurate with the requirements of the definitions of the classification titles as provided in section eight of this article. The subject matter of each competency test shall be is designed in such a manner that achieving a passing grade will does not require knowledge and skill in excess of the requirements of the definitions of the classification titles. Achieving a passing score shall conclusively demonstrate demonstrates the qualification of an applicant for a classification title. Once an employee passes the competency test of a classification title, the applicant shall be is fully qualified to fill vacancies in that classification category of employment as provided in section eight-b of this article and shall not be required to take the competency test again.
(d) An applicant who fails to achieve a passing score shall be is given other opportunities to pass the competency test when making application for another vacancy within the classification category.
(e) Competency tests shall be are administered to applicants in a uniform manner under uniform testing conditions. County boards of education are responsible for scheduling competency tests, notifying applicants of the date and time of the one day of training prior to taking the test and the date and time of the test. County boards of education shall may not utilize use a competency test other than the test authorized by this section.
(f) When scheduling of the competency test conflicts with the work schedule of a school employee who has applied for a vacancy, the employee shall be is excused from work to take the competency test without loss of pay.
(g) A minimum of one day of appropriate in-service training shall be is provided to employees to assist them in preparing to take the competency tests.
(h) Competency tests shall be utilized are used to determine the qualification of new applicants seeking initial employment in a particular classification title as either a regular or substitute employee.
(i) Notwithstanding any provisions in this code to the contrary, once an employee holds or has held a classification title in a category of employment, that employee shall be is considered qualified for the classification title even though that employee no longer holds that classification.
(j) The requirements of this section shall not be construed to do not alter the definitions of class titles as provided in section eight of this article nor or the procedure and requirements of section eight-b of this article."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 529), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4297) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4304, Continuing the children's health insurance board.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4350, Continuing the West Virginia state police.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4371, Extending the pilot program for the uninsured and underinsured.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section one, line seventeen, by striking out the word "the".
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 530), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Frich.
Absent And Not Voting: Coleman, Faircloth and Ferrell.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4371) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 531), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Coleman, Faircloth and Ferrell.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4371) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, bills of the House of Delegates as follows:
Com. Sub. for H. B. 4412, Requiring the children's health insurance board to submit a modification of its benefit plan.,
H. B. 4415, Giving the state auditor flexibility in determining when to conduct audits on local government offices,
Com. Sub. for H. B. 4450, Permitting the sale of timber severed in a state park incidental to construction activities,
Com. Sub. for H. B. 4455, Extending the term of the waste tire remediation funds,
H. B. 4478, Lengthening the time period which county boards are required to publish a year-end financial statement,
H. B. 4479, Continuing the department of health and human resources,
Com. Sub. for H. B. 4517, Finding and declaring certain claims against the state and its agencies to be moral obligations of the state and directing the auditor to issue warrants for the payment thereof,
H. B. 4530, Continuing the meat and poultry inspection program,
H. B. 4546, Supplemental appropriation to the department of health and human resources - family protection services board - domestic violence legal services fund,
H. B. 4547, Supplemental appropriation to the bureau of commerce - division of miners' health, safety and training,
H. B. 4548, Supplemental appropriation to the department of transportation - division of motor vehicles - driver's license reinstatement fund,
H. B. 4549, Supplemental appropriation to the bureau of commerce - division of labor - elevator safety act,
H. B. 4550, Supplemental appropriation to the department of health and human resources - division of health - central office,
H. B. 4451, Supplemental appropriation to the department of health and human resources - division of human services,
And,
Com. Sub. for H. B. 4559, Providing urban mass transportation authorities expanded competitive procurement procedures for the purchase of supplies, equipment and materials.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub for H. B. 4601, Relating to public education generally.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Plymale, Edgell and Boley.
On motion of Delegate Staton, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Williams, Swartzmiller and Anderson.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4669, Providing for establishment of special five-year demonstration professional development school project.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-3f. Special demonstration professional development school project for improving academic achievement.

(a) The Legislature makes the following findings:

(1) Well-educated children and families are essential for maintaining safe and economically sound communities;

(2) Low student achievement is associated with increased delinquent behavior, higher drug use and pregnancy rates, and higher unemployment and adult incarceration rates;

(3) Each year, more students enter school with circumstances in their lives that schools are ill-prepared to accommodate;

(4) Ensuring access for all students to the rigorous curriculum they deserve requires effective teaching strategies that include, but are not limited to, using a variety of instructional approaches, using varied curriculum materials, engaging parent and community involvement and support in the educational process, and providing the professional development, support and leadership necessary for an effective school; and

(5) The achievement of all students can be dramatically improved when schools focus on factors within their control, such as the instructional day, curriculum and teaching practices.

(b) The purpose of this section is to provide for the establishment of a special five-year demonstration professional development school project to improve the academic achievement of all children. The program shall be under the direction of the state superintendent and shall be for a period of five years beginning with the two thousand four - two thousand five school year. The intent of this section is to provide a special demonstration environment wherein the public schools included in the demonstration project may work in collaboration with higher education, community organizations and the state board to develop and implement strategies that may be replicated in other public schools with significant enrollments of disadvantaged, minority and under-achieving students to improve academic achievement. For this purpose, the state superintendent has the following powers and duties with respect to the demonstration project:

(1) To select for participation in the demonstration project three public elementary or middle schools with significant enrollments of disadvantaged, minority and under-achieving students in each county in which the number of the African American students is five percent or more of the total second month enrollment;

(2) To require cooperation from the county board of the county wherein a demonstration project school is located to facilitate program implementation and avoid any reallocation of resources for the schools that are disproportionate with those for other schools of the county of similar classification, accreditation status and federal Title I identification;

(3) To require specialized training and knowledge of the needs, learning styles and strategies that will most effectively improve the performance of disadvantaged, minority and under-achieving students in demonstration project schools. These powers include, but not limited to, the authority to craft job descriptions with requirements regarding training and experience and the right to specify job duties which are related to job performance that reflect the mission of the demonstration project school;

(4) To provide specifications and direct the county board to post the positions for school personnel employed at the demonstration project school that encompass the special qualifications and any additional duties that will be required of the personnel as established in the job descriptions authorized pursuant to subdivision (3) of this section. The assertion that the job descriptions and postings are narrowly defined may not be used as the basis for the grievance of an employment decision for positions at a demonstration project school;

(5) To make decisions with respect to the employment, promotion and transfer of personnel employed at a demonstration project school to reflect any special qualifications and additional duties that will be required by virtue of the demonstration project, notwithstanding the provisions of sections seven-a and eight-b, article four, chapter eighteen-a of this code: Provided, That all the personnel shall retain all rights, privileges and benefits under the sections with respect to other positions in the county for which they meet the qualifications;

(6) To direct the department of education, the center for professional development and the regional educational service agency to provide any technical assistance and professional development necessary for successful implementation of the demonstration school programs, including, but not limited to, any early intervention or other programs of the department to assist low performing schools;

(7) To collaborate and enter into agreements with colleges and universities willing to assist with efforts at a demonstration school to improve student achievement, including, but not limited to, the operation of a professional development school program model: Provided, That the expenditure of any funds appropriated for the state board or department for this purpose shall be subject to approval of the state board;

(8) To require collaboration with local community organizations to improve student achievement and increase the involvement of parents and guardians in improving student achievement;

(9) To provide for an independent evaluation of the demonstration school project, its various programs and their effectiveness on improving student academic achievement; and

(10) To recommend to the state board and the county board the waiver of any of their respective policies that impede the implementation of demonstration school programs.

(c) The state superintendent shall make status reports to the legislative oversight commission on education accountability and to the state board annually and may include in those reports any recommendations based on the progress of the demonstration project that he or she considers either necessary for improving the operations of the demonstration project or prudent for improving student achievement in other public schools through replication of successful demonstration school programs. The state superintendent shall make a recommendation to the Legislature not later than its regular session, two thousand ten, for continuation or termination of the program, which recommendation shall be accompanied by the findings and recommendations of the independent evaluation and these findings and recommendations shall be a major factor considered by the superintendent in making his or her recommendation.

(d) Nothing in this section shall require any specific level of appropriation by the Legislature."

And,

By amending the title of the bill to read as follows:

H. B. 4669 - "A Bill to amend and reenact §18-2-35 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §18-2E-3f, all relating to providing quality education in public schools; requiring school uniforms for students; requiring establishment of special five-year demonstration professional development school project; making certain findings; providing certain powers and duties of state superintendent with respect to project; requiring reports; and excluding requirement of specific appropriations."

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments with amendment, as follows:

On page two, by striking §18-2-35 in its entirety from the bill.

On page two, by amending the enacting section to read as follows:

"That the code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated section §18-2e-3f, to read as follows" followed by a colon.

And,

By amending the title of the bill to read as follows:

H. B. 4669 - "A Bill to amend the code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18-2e-3f, related to requiring establishment of special five-year demonstration professional development school project; making certain findings; providing certain powers and duties of state superintendent with respect to project; requiring reports; and excluding requirement of specific appropriations."

The bill, as amended by the Senate, and as further amended by the House of Delegates, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 532), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth and Ferrell.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4669) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 533), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:

Absent And Not Voting: Beach, Calvert, Coleman, Faircloth and Ferrell.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4669) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:

H. B. 4737, Providing options for members of teachers retirement to make contributions for periods of temporary total disability.

On motion of Delegate Staton, the bill was taken up for immediate consideration.

The following Senate amendments were reported by the Clerk:

On page two, section fourteen-b, lines sixteen and seventeen, by striking out the words "date of the of the end of the one hundred four week period" and inserting in lieu thereof the words "end of the disability period for which credit is sought to be purchased".

On motion of Delegate Staton, the House of Delegates concurred in the Senate amendment.

The bill, as amended by the Senate, was then put upon its passage.

On the passage of the bill, the yeas and nays were taken (Roll No. 534), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Beach, Coleman, Faircloth and Ferrell.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4737) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:

H. B. 4745, Relating to administration of repairs to vehicles and equipment by the division of highways.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:

H. C. R. 24, Requesting the prohibition of remote control locomotive technology in switching operations until such time as a thorough, risk assessment study of remote control locomotive operations can be completed.

A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of

S. B. 100, Prohibiting state and political subdivisions from contracting with vendors owing debt to state.

A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of

S. B. 181, Permitting retired state police to carry concealed weapon for life.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of

S. B. 576, Continuing state rail authority.

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by its title and referred to the Committee on Rules:

S. C. R. 94 - "Urging the Forest Service Division of the United States Department of Agriculture plan and develop recreational trails for off-highway vehicles in the Monongahela National Forest."

Whereas, One of the primary missions of our national forests is to provide recreational opportunities to our citizens; and

Whereas, Off-highway vehicle trails are among the many recreational opportunities commonly provided in many national forests throughout the United States; and

Whereas, The national forests in all the states surrounding West Virginia have established recreational trails for off-highway vehicles; and

Whereas, The Monongahela National Forest comprises over 909,000 acres in federal ownership in 10 counties in West Virginia, making it the fourth largest national forest in the northeast; and

Whereas, West Virginia has among the highest per capita ownership of off-highway vehicles, primarily all-terrain vehicles, in the United States and a high demand exists for recreational opportunities for owners of all-terrain vehicles; and

Whereas, The establishment of properly designed and managed public trails and recreational opportunities for off-highway vehicles has proven to enhance the safety of the recreation, while also enhancing tourism and economic development in local communities where these recreational opportunities are provided; and

Whereas, The Forest Service Division of the United States Department of Agriculture has demonstrated the capability and resources necessary to properly design and manage off-highway vehicle recreational opportunities throughout the United States; therefore, be it

Resolved by the Legislature of West Virginia:

That the Legislature hereby urges the Forest Service Division of the United States Department of Agriculture plan and develop recreational trails for off-highway vehicles in the Monongahela National Forest; and, be it

Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the United States Department of Agriculture and the Supervisor of the Monongahela National Forest.

A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate, to take effect from passage, and requested the concurrence of the House of Delegates in the passage of

Com. Sub. for S. B. 133 - " A Bill making appropriations of public money out of the treasury in accordance with section fifty-one, article VI of the constitution."

At the respective requests of Delegate Staton, and by unanimous consent, reference of the bill (Com. Sub. for S. B. 133) to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.


Resolutions Introduced


Delegates Blair, Anderson, Ashley, Azinger, Border, Calvert, Canterbury, Carmichael, Caruth, Duke, Ellem, Evans, Faircloth, Frich, Hall, Hamilton, Howard, Leggett, Overington, Romine, Schadler, Schoen, Smirl, Sobonya, Sumner, Trump, Wakim, Walters, Webb and G. White offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 90 - "Requesting the Joint Committee on Government and Finance to study a method of privatizing coverage for workers' compensation by utilization of a combination of health insurance, long-term disability insurance, an interest-bearing medical deductible fund for employees, applying interest from the medical deductible fund toward the payment of the unfunded liability of the workers' compensation fund and the use of 401K plans to provide benefits to employees and providing for reduced employer premiums to the workers' compensation fund to pay the unfunded liability of the fund, all in lieu of the current West Virginia workers' compensation system."

Whereas, West Virginia has utilized a traditional state operated workers' compensation program which presently is experiencing an unfunded liability of over four billion dollars; and

Whereas, The Legislature has made significant efforts in Senate Bill No. 2013, passed in the two thousand three second extraordinary session of the Legislature to provide remedial and progressive measures to provide greater efficiency and control the costs of West Virginia's workers' compensation system and in which the Legislature provided that the workers' compensation commission conduct a study of the feasibility of the privatization of workers' compensation in this State; however the Legislature recognizes and acknowledges that Senate Bill 2013 did not provide a satisfactory long term and complete solution to the problems and shortcomings of this State's workers' compensation system and, further, that additional measures are needed to provide a more efficient, cost effective and affordable method of providing workers' compensation coverage for both the employers and employees of this State; and

Whereas, The Legislature finds that, considering the enormity, fiscal impact and complexity of the problems involved in workers' compensation coverage facing this State, it should continue to study the feasibility of alternative and innovative methods of privatizing workers' compensation coverage, in addition to and to complement, the study by the workers' compensation commission of the feasibility of privatizing workers' compensation; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study a method of privatizing coverage for workers' compensation by utilization of a combination of health insurance, long-term disability insurance, an interest-bearing medical deductible fund for employees, applying interest from the medical deductible fund toward the payment of the unfunded liability of the workers' compensation fund and the use of 401K plans to provide benefits to employees and providing for reduced employer premiums to the workers' compensation fund to pay the unfunded liability of the fund, all in lieu of the current West Virginia workers' compensation system, including the consideration of the following methods of privatizing workers' compensation coverage:

(a) Require employers to obtain private health, sickness and accident insurance coverage, with a deductible of between twenty-five hundred and five thousand dollars, for each employee;

(b) Require employers to obtain long-term disability and death benefit insurance, comparable to benefits currently provided to employees for temporary total disabilities, permanent partial disabilities and permanent total disabilities under the current workers' compensation system;

(c) Require the creation of interest-bearing medical deductible funds for each employee, to be funded by the employee by regular periodic payments deducted from employee wages or salary, to be used to pay health insurance deductibles for medical care for employees; that upon complete funding of the employee medical deductible fund, that the employee continue to make regular periodic payments to the fund and that the excess in the fund be transferred into a 401K plan for the employee, as set forth below; and that interest income from the medical deductible funds be applied to payment of the unfunded liability of the current workers' compensation system;

(d) That employers be required to set up a 401K plan for each employee, which provides that the employer pay into the plan the minimum employer match to the employee contribution from the employee's required contribution to the employee's medical deductible fund; that the employee contribution to the plan be funded by funds in the employee's medical deductible fund that are in excess of the required amount for the fund and that the 401K plan provide a mechanism to withdraw funds therefrom to pay any health insurance deductible amounts in the event that the employee's medical deductible fund is insufficient to pay required deductibles; and

(e) Provide that employers continue to pay a reduced premium to the current workers' compensation fund at an affordable rate, to be applied toward payment of the unfunded liability of the current workers' compensation system; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2005, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it

Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft the necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.

Delegates Overington, Trump, Wakim, Hamilton, Howard, Canterbury, Anderson, Armstead, Webb, Blair, Hall, Schadler, Walters, Louisos, Faircloth, Duke, Ellem, Sumner, Sobonya and Frich offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. R. 21 - "Amending House Rule No. 94 relating to joint sponsors of a bill."

Resolved by the House of Delegates:

That House Rule No. 94 be amended to read as follows:
Joint Sponsors of Bill

94. A bill may be introduced bearing the names of not more than twenty-five members as joint sponsors of the bill.


Consent Calendar

Third Reading


The following bills on third reading, coming up in regular order, were each read a third time:
Com. Sub. for S. B. 149, Relating generally to department of tax and revenue,
S. B. 321, Providing personal income tax adjustment to gross income of certain retirees,
S. B. 323, Continuing office of explosives and blasting,
Com. Sub. for S. B. 404, Clarifying term "behavioral health services"; removing "community care services",
S. B. 406, Relating to victim notification of defendant's release,
Com. Sub. for S. B. 420, Relating generally to motor fuels excise tax,
S. B. 450, Relating to long-term care insurance policies,
S. B. 479, Relating to licensing foreign insurers,
S. B. 482, Reclassifying juvenile detention and corrections facility employees,
S. B. 501, Relating to disqualification for public retirement plan benefits; other provisions,
Com. Sub. for S. B. 556, Exempting retailers of automobiles and trucks from definition of credit services organizations,
S. B. 645, Appointing interim judges to court of claims,
Com. Sub. for S. B. 672, Relating to municipalities' right to collect public utility fees,
S. B. 720, Relating to unused state private activity bond volume cap,

And,
S. B. 726, Continuing steel advisory commission and steel futures program.

On the passage of the bills, the yeas and nays were taken (Roll No. 535), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Faircloth, Ferrell and Hall.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bills (Com. Sub. for S. B. 149, S. B. 321, S. B. 323, Com. Sub. for S. B. 404, S. B. 406, Com. Sub. for S. B. 420, S. B. 450, S. B. 479, S. B. 482, S. B. 501, Com. Sub. for S. B. 556, S. B. 645, Com. Sub. for S. B. 672, S. B. 720 and S. B. 726) passed.

An amendment to the title of Com. Sub. for S. B. 149, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:

Com. Sub. for S. B. 149 - "A Bill to repeal §5A-2-2, §5A-2-3, §5A-2-4, §5A-2-5, §5A-2-6, §5A-2-7, §5A-2-8, §5A-2-9, §5A-2-10, §5A-2-11, §5A-2-12, §5A-2-13, §5A-2-14, §5A-2-14a, §5A- 2-15, §5A-2-16, §5A-2-17, §5A-2-18, §5A-2-19, §5A-2-20, §5A-2-21, §5A-2-22, §5A-2-23, §5A-2- 26, §5A-2-27, §5A-2-28, §5A-2-29, §5A-2-30 and §5A-2-31 of the code of West Virginia, 1931, as amended; to amend and reenact §5A-1-2, §5A-1-4 and §5A-1-5 of said code; to amend and reenact §5A-2-1, §5A-2-24 and §5A-2-32 of said code; and to amend said code by adding thereto a new chapter, designated §11B-1-1, §11B-1-2, §11B-1-3, §11B-1-4, §11B-1-5, §11B-1-6, §11B-1-7, §11B-2-1, §11B-2-2, §11B-2-3, §11B-2-4, §11B-2-5, §11B-2-6, §11B-2-7, §11B-2-8, §11B-2-9, §11B-2-10, §11B-2-11, §11B-2-12, §11B-2-13, §11B-2-14, §11B-2-15, §11B-2-16, §11B-2-17, §11B-2-18, §11B-2-19, §11B-2-20, §11B-2-21, §11B-2-22, §11B-2-23, §11B-2-24, §11B-2-25, §11B-2-26, §11B-2-27, §11B-2-28, §11B-2-29, §11B-2-30 and §11B-2-31, all relating generally to department of tax and revenue and office of secretary of tax and revenue and their powers, duties and responsibilities; changing the name of department of tax and revenue to department of revenue; changing name of office of secretary of tax and revenue to office of secretary of revenue; increasing membership of council of finance and administration by making secretary of revenue an ex officio member; continuing misdemeanor penalties for noncompliance by secretaries and spending officers with requirements to provide certain budget and budget-related information; identifying agencies, boards, commissions, division and offices comprising department of revenue; specifying powers and duties of secretary; requiring periodic reports; authorizing delegations of authority; providing rules for safeguarding confidential information; providing right of appeal from interference with functioning of an agency; transferring budget section of finance division of department of administration to department of revenue and making secretary of revenue state budget director; providing rules to effectuate transfer of budget section and transition; moving language pertaining to work of budget section and preparation of budget to new chapter of the code; and making other technical or conforming changes to implement or effectuate these various changes."

An amendment to the title of S. B. 450, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:

S. B. 450 - "A Bill to amend and reenact §33-15A-4, §33-15A-5, §33-15A-6 and §33-15A-7 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto four new sections, designated §33-15A-8, §33-15A-9, and §33-15A-10, all relating to the regulation of long- term care insurance policies; defining terms; establishing extraterritorial jurisdiction; summarizing disclosure and performance standards for long-term care insurance; instituting and regulating an incontestability period; disclosing nonforfeiture benefits; providing the commissioner authority to promulgate regulations; providing penalties; and establishing an effective date."

An amendment to the title of S. B. 501, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:

S. B. 501 - "A Bill to amend and reenact §5-10A-2 and §5-10A-3 of the code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §5-10A- 11; and to amend and reenact §15-2A-2 and §15-2A-6 of said code, all relating generally to the administration of state retirement systems; providing that the disqualification of members from receiving retirement benefits for less than honorable service extends to members of the West Virginia state police retirement system, the teachers' defined contribution retirement system and the deputy sheriff retirement system; increasing time to issue notice to terminate benefits for less than honorable service; requiring prosecuting attorneys to notify retirement board of convictions or other disqualifying event; providing definitions for month of service and years of service and specifying the starting date of annuity received under the West Virginia state police retirement system; and lowering the normal retirement age for certain members."

Delegate Staton moved that Com. Sub. for S. B. 404 take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 551), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:

Absent And Not Voting: Caputo, Coleman, Faircloth, Ferrell, Hatfield, Leggett and Yost.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 404) takes effect from its passage.

Delegate Staton moved that S. B. 645 take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 552), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Browning.

Absent And Not Voting: Coleman, Faircloth and Ferrell.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 645) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates on the Consent Calendar bills and request concurrence on those requiring the same.


Second Reading


The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed with him for the removal of bills from the Consent Calendar to the House Calendar:

Com. Sub. for S. B. 204, S. B. 509, S. B. 638, and S. B. 717, on second reading, Consent Calendar, to the House Calendar, by Delegate Trump.

Com. Sub. for S. B. 260, on second reading, Consent Calendar, to the House Calendar, by Delegate Beane.

Com. Sub. for S. B. 460, on second reading, Consent Calendar, to the House Calendar, by Delegate Beane.
S. B. 480, on second reading, Consent Calendar, to the House Calendar, by Delegate Fleischauer.

And,

Com. Sub. for S. B. 709, on second reading, Consent Calendar, to the House Calendar, by Delegates Michael and Trump.
Com. Sub. for S. B. 230, Relating to definitions of casualty insurance and federal flood insurance; other provisions; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page seventeen, section fourteen, line ninety-nine, after the word "treasurer", by inserting the following: "is restricted to and shall distribute from the flood insurance tax fund for activities which promote and enhance flood plain 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" and a period.

And,

By striking out the remainder of the bill.

The bill was then ordered to third reading.
Com. Sub. for S. B. 320, Relating to division of motor vehicles application for certificate of title; exempting modular homes; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill 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 canceled 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 canceled 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. Canceled 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 canceled. 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."

The bill was then ordered to third reading.
S. B. 418, Allowing certain sheriff employees to carry deadly weapons; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, after the enacting section, by striking out the remainder of the bill 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."

The bill was then ordered to third reading.
S. B. 444, Requiring county litter control officers to enforce litter laws; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, after the enacting clause, by striking out the remainder of the bill 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 department 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 department 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."

The bill was then ordered to third reading.
Com. Sub. for S. B. 505, Creating motor vehicle classification of "low-speed vehicle"; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, after the enacting section, by striking out the remainder of the bill and inserting in lieu thereof the following language:
"ARTICLE 1. WORDS AND PHRASES DEFINED.
§17A-1-1. De
finitions.


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 one.

(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."

The bill was then ordered to third reading.

Com. Sub. for S. B. 533, Authorizing division of corrections charge certain adult offenders transfer application fee; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section four, at the beginning of 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".

The bill was then ordered to third reading.


Special Calendar

Unfinished Business

S. C. R. 55, Requesting Joint Committee on Government and Finance study state fire code rules applying to bed and breakfasts; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. C. R. 68, Requesting Joint Committee on Government and Finance study grievance boards and administrative law judge systems; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
H. C. R. 56, Requesting a study on the current problems associated with the delivery of water and sewer services ; coming up in regular order, as unfinished business, was reported by the Clerk.
On motion of Delegate Michael, the resolution was amended on page one, lines fifteen, sixteen and seventeen, following the word "Commission", by striking out the words "to study the current problems associated with the delivery of water and sewer service, and".

On page one, line eighteen, following the word "by", by striking out the words "customer owned".

On page one, lines twenty-seven, twenty-eight and twenty-nine, by striking out all of the text.

On page one, line thirty, following the word "of", by striking out the words "privately owned".

On page two, line five, following the word "study", by striking out the words "the current problems associated with the delivery of water and sever service, and to study".

And,

On page two, line seven, following the word "by", by striking out the words "customer owned".
The question now before the House being on the adoption of the resolution, as amended, the same was put and prevailed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

The following resolutions, coming up in regular order, as unfinished business, were reported by the Clerk and adopted.
H. C. R. 69, Requesting a study on the development of intellectual properties and other mechanisms to encourage the film industry to conduct business in West Virginia;
H. C. R. 71, Requesting a study on the current statistical trends in juvenile delinquency
H. C. R. 78, Determining the effects of exempting property belonging to or leased to a corporation that is used to provide independent, assisted living services and other health related services for elderly residents;

And,
H. C. R. 88, Requesting a study on methods of improving access to physical therapy services in rural areas of West Virginia.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
* * * * * * * * *


Today being Friday, the House of Delegates proceeded to the consideration of business on the Local Calendar.


Local Calendar

First Reading

S. B. 734, Extending time for town council of Smithers to meet as levying body for election of additional levy; on first reading, coming up in regular order, was read a first time and ordered to second reading.

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 553), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Ferrell and Renner.

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The bill was then read a second time and ordered to third reading.

The bill was then read a third time and put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 554), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Ferrell and Renner.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 734) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 555), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Ferrell and Renner.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 734) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.

Mr. Speaker, Mr. Kiss, and Delegate Staton offered the following resolution, which was read by its title:

H. C. R. 93 - "Suspending Joint Rule No. 5, providing for consideration on third reading of H. B. 4763, Extending the time for the city council of Dunbar to meet as a levying body for the purpose of presenting to the voters of the city an election to continue an additional city levy."
Resolved by the Legislature of West Virginia, two thirds of the members present and voting in each house agreeing thereto:

That the provisions of Rule No. 5 of the Joint Rules of the Senate and House of Delegates are hereby suspended for the express purpose of consideration on third reading of H. B. 4763.
At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. C. R. 93) to a committee was dispensed with, and it was taken up for immediate consideration.

The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 556), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent And Not Voting: Coleman, Ferrell and Renner.

So, a two thirds of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R 93) adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4763, Extending the time for the city council of Dunbar to meet as a levying body for the purpose of presenting to the voters of the city an election to continue an additional city levy; on first reading, coming up in regular order, was read a first time and ordered to second reading.

Delegate Staton moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.

On this question, the yeas and nays were taken (Roll No. 557), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Ferrell.

So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.

The bill was then read a second time and ordered to third reading.

The bill was then read a third time and put upon its passage.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 558), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Ferrell.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4763) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 559), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Ferrell.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4763) takes effect .

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
* * * * * * * * * *


The Local Calendar having been disposed of, the House of Delegates proceeded to consideration of business on the Special Calendar.


Special Calendar

-Continued-

Third Reading

Com. Sub. for S. B. 125, Permitting solicitation of certain state employees for contributions to certain campaigns in local or county elections; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 560), and there were--yeas 91, nays 6, absent and not voting 3, with the nays and absent and not voting being as follows:

Nays: Armstead, Calvert, Hall, Overington, Schoen and Webb.

Absent And Not Voting: Coleman, Ennis and Ferrell.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 125) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for S. B. 176, Relating to investments and investment practices of insurance companies; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 561), and there were--yeas 92, nays 6, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Anderson, Carmichael, Louisos, Overington, Sobonya and Sumner.

Absent And Not Voting: Coleman and Ferrell.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 176) passed.

An amendment to the title of the bill, recommended by the Committee on Banking and Insurance, was reported by the Clerk and adopted, amending the title to read as follows:

Com. Sub for S. B. 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."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 200, Requiring state police to annually report to Legislature effectiveness of recruiting minorities; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 562), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Ferrell.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 200) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 286, Relating to assessment of regulated consumer lenders; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 563), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Coleman and Ferrell.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 286) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 454, Relating to land-use planning; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 564), and there were--yeas 83, nays 15, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Anderson, Ashley, Border, Carmichael, Doyle, Duke, Ellem, Evans, Hamilton, Louisos, Manuel, Overington, Smirl, Sobonya and Tabb.

Absent And Not Voting: Coleman and Leggett.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 454) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.

An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:

S.B. 454 - "A Bill to repeal §8-24-1, §8-24-2, §8-24-3, §8-24-4, §8-24-5, §8-24-6, §8-24- 7, §8-24-8, §8-24-9, §8-24-10, §8-24-11, §8-24-12, §8-24-13, §8-24-14, §8-24-15, §8-24-16, §8- 24-17, §8-24-18, §8-24-19, §8-24-20, §8-24-21, §8-24-22, §8-24-23, §8-24-24, §8-24-25, §8-24- 26, §8-24-27, §8-24-28, §8-24-29, §8-24-30, §8-24-31, §8-24-32, §8-24-33, §8-24-34, §8-24-35, §8-24-36, §8-24-37, §8-24-38, §8-24-39, §8-24-40, §8-24-41, §8-24-42, §8-24-43, §8-24-44, §8- 24-45, §8-24-46, §8-24-47, §8-24-48, §8-24-49, §8-24-50, §8-24-50a, §8-24-50b, §8-24-51, §8- 24-52, §8-24-53, §8-24-54, §8-24-55, §8-24-56, §8-24-57, §8-24-58, §8-24-59, §8-24-60, §8-24- 61, §8-24-62, §8-24-63, §8-24-64, §8-24-65, §8-24-66, §8-24-67, §8-24-68, §8-24-69, §8-24-70, §8-24-71, §8-24-72, §8-24-73, §8-24-73a, §8-24-73b, §8-24-73c, §8-24-73d, §8-24-74, §8-24- 74a, §8-24-74b, §8-24-74c, §8-24-75, §8-24-76, §8-24-77, §8-24-78, §8-24-79, §8-24-80, §8-24- 81, §8-24-82, §8-24-83, §8-24-84 and §8-24-85 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new chapter, designated §8A-1-1, §8A-1-2, §8A-2-1, §8A-2-2, §8A-2-3, §8A-2-4, §8A-2-5, §8A-2-6, §8A-2-7, §8A-2-8, §8A-2-9, §8A-2-10, §8A-2- 11, §8A-3-1, §8A-3-2, §8A-3-3, §8A-3-4, §8A-3-5, §8A-3-6, §8A-3-7, §8A-3-8, §8A-3-9, §8A- 3-10, §8A-3-11, §8A-3-12, §8A-3-13, §8A-3-14, §8A-4-1, §8A-4-2, §8A-4-3, §8A-4-4, §8A-4-5, §8A-4-6, §8A-4-7, §8A-5-1, §8A-5-2, §8A-5-3, §8A-5-4, §8A-5-5, §8A-5-6, §8A-5-7, §8A-5-8, §8A-5-9, §8A-5-10, §8A-5-11, §8A-5-12, §8A-6-1, §8A-6-2, §8A-6-3, §8A-7-1, §8A-7-2, §8A-7-3, §8A-7-4, §8A-7-5, §8A-7-6, §8A-7-7, §8A-7-8, §8A-7-9, §8A-7-10, §8A-7-11, §8A-7-12, §8A-7-13, §8A-8-1, §8A-8-2, §8A-8-3, §8A-8-4, §8A-8-5, §8A-8-6, §8A-8-7, §8A-8- 8, §8A-8-9, §8A-8-10, §8A-8-11, §8A-8-12, §8A-9-1, §8A-9-2, §8A-9-3, §8A-9-4, §8A-9-5, §8A-9-6, §8A-9-7, §8A-10-1, §8A-10-2, §8A-10-3, §8A-10-4, §8A-10-5, §8A-11-1, §8A-11-2, §8A-12-1, §8A-12-2, §8A-12-3, §8A-12-4, §8A-12-5, §8A-12-6, §8A-12-7, §8A-12-8, §8A-12-9, §8A-12-10, §8A-12-11, §8A-12-12, §8A-12-13, §8A-12-14, §8A-12-15, §8A-12-16, §8A-12-17, §8A-12-18, §8A-12-19, §8A-12-20 and §8A-12-21, all relating to land-use planning; authorizing planning commissions; setting forth jurisdiction and requirements for various types of planning commissions; requiring comprehensive plans; requiring surveys and studies; establishing mandatory and optional components of plans; establishing processes for adopting and amending plans; authorizing ordinances; establishing process for enacting ordinances; setting forth requirements for contents of ordinances; providing for subdivision or land development ordinances; providing for subdivision or land development plans and plats; establishing processes for approval of minor and major subdivisions; requiring plats to be recorded; setting forth appeal processes; providing for methods of security for construction and development; establishing vested property rights; providing for enforcement authority; providing for elections on ordinances; providing for variances from ordinances; providing for exemptions from ordinances; authorizing boards of zoning appeals; providing civil and criminal penalties; providing for injunctions; validating prior plans and ordinances; and incorporating special provisions for factory-built homes, group residential facilities and voluntary farmland protection programs."

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 575, Continuing motor vehicle dealers advisory board; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 565), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 575) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 578, Continuing design-build board; on third reading, coming up in regular order, was read a third time.

The question being on the passage of the bill, the yeas and nays were taken (Roll No. 566), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 578) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 694, Establishing Fairness in Competitive Bidding Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 567), and there were--yeas 92, nays 7, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Ennis, Pethtel, Swartzmiller, Tucker, Varner, Wakim and White, G..

Absent And Not Voting: Coleman.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 694) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 718, Authorizing board of examiners of psychologists set fees by rule; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 568), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Walters.

Absent And Not Voting: Coleman.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 718) passed.

An amendment to the title of the bill, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the title to read as follows:

S. B. 718 - "A Bill to amend and reenact §30-21-8 and §30-21-9 of the code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §30-21-10a, all relating to authorizing the board of examiners of psychologists to set fees and other requirements by legislative rule."

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 569), and there were--yeas 98, nays 1, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Walters.

Absent And Not Voting: Coleman.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 718) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. B. 722, Repealing section prohibiting giving away or selling liquor in buildings where boxing is held; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 570), and there were--yeas 70, nays 29, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Anderson, Armstead, Ashley, Azinger, Blair, Boggs, Border, Calvert, Canterbury, Carmichael, Duke, Ellem, Evans, Hall, Hamilton, Howard, Leggett, Louisos, Overington, Schoen, Smirl, Sobonya, Sumner, Susman, Tabb, Thompson, R., Walters, Webb and Yeager.

Absent And Not Voting: Coleman.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 722) passed.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
H. B. 4753, Supplemental appropriation to the department of environmental protection - division of environmental protection - stream restoration fund; on third reading, coming up in regular order was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid over one day.

Mr. Speaker, Mr. Kiss, and Delegate Staton offered the following resolution, which was read by its title and referred to the Committee on Rules:

H. C. R. 91 - "Suspending Joint Rule No. 5, providing for consideration on third reading of H. B. 4759, Imposing an alternative minimum personal income tax for each taxable year on the West Virginia taxable income of every individual meeting certain criteria."

Resolved by the Legislature of West Virginia, two thirds of the members present and voting in each house agreeing thereto:

That the provisions of Rule No. 5 of the Joint Rules of the Senate and House of Delegates are hereby suspended for the express purpose of consideration on third reading of H. B. 4579.

At the respective requests of Delegate Staton, and by unanimous consent, reference of the resolution (H. C. R. 91) to a committee was dispensed with, and it was taken up for immediate consideration.
The question now being on the adoption of the resolution, the yeas and nays were taken (Roll No. 571), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, two thirds of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. C. R. 91) adopted.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4759, Imposing an alternative minimum personal income tax for each taxable year on the West Virginia taxable income of every individual meeting certain criteria; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 572), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:

Nays: Butcher, Ferrell, Frich, Hall, Hamilton, Hrutkay, Romine, Schoen, Sobonya and Wakim.

Absent And Not Voting: Coleman and Schadler.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4759) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 573), and there were--yeas 97, nays 2, absent and not voting 1, with the nays and absent and not voting being as follows:

Nays: Hrutkay and Wakim.

Absent And Not Voting: Coleman.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4759) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4760, Supplemental appropriation to the governor's office - office of economic opportunity; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 574), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4760) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 575), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4760) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4761, Supplemental appropriation to the department of agriculture - donated food fund; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 576), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4761) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 577), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4761) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 4762, Supplemental appropriation to the department of military affairs and public safety - office of emergency services; on third reading, coming up in regular order, was read a third time.

On the passage of the bill, the yeas and nays were taken (Roll No. 578), and there were--yeas 99, nays none, absent and not voting 1, with the absent and not voting being as follows:

Absent And Not Voting: Coleman.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4762) passed.

Delegate Staton moved that the bill take effect from its passage.

On this question, the yeas and nays were taken (Roll No. 579), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:

Absent And Not Voting: Calvert and Coleman.

So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4762) takes effect from its passage.

Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.


Second Reading

Com. Sub. for S. B. 139, Creating Tourism Development Act; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk on page two, after the enacting section, by striking out the remainder of the bill 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 consumer 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.

(3) 'Base tax revenue amount' means the average monthly amount of consumer 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.

(4) 'Council' means the council for community and economic development as provided in article two of this chapter.

(5) 'Development office' means the West Virginia development office as provided in article two of this chapter.

(6) '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.

(7) '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.

(8) '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.

(8) 'Final approval' means the action taken by the council qualifying the eligible company to receive the tax credits provided in this article.

(9) 'Preliminary approval' means the action taken by the development office conditioning final approval by the council.

(10) '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.

(11) '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.

(12) '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.

(13) '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 consumer 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 consumer 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 subsection (b) 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 consumer 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, article two-e, chapter five-b of this code 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."

Delegate Canterbury moved to amend the amendment on page four, section three, line twenty-two, after the word "counsel", by striking out the period and inserting in lieu thereof a comma and the words "but does not include any company licenced to operate video lottery terminals pursuant to article twenty-three, chapter nineteen and article twenty-two-b, chapter twenty-nine of this code or any business that derives any part of its revenue from video lottery gaming."

The question now before the House being on the adoption of the amendment to the Committee amendment, the same was put and did not prevail.

On the question of the adoption of the amendment offered by the Committee on Finance, the same was put and prevailed.

The bill was then ordered to third reading.
Com. Sub. for S. B. 143, Relating to small employer accident and sickness insurance policies; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page eight, section sixteen, line one hundred thirty-eight, following the word "of", by striking out the word "eighty " and inserting in lieu thereof the word "seventy-seven".

The bill was then ordered to third reading.
S. B. 148, Creating Tax Amnesty Program of 2004; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page three, after the enacting section, by inserting the following:
"CHAPTER 11. TAXATION."

On page eighteen, following line thirteen, by striking out all of section eleven and renumbering the remaining sections.

On page twenty, after line five, by inserting 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 section. 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 section 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 April thirtieth: (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.
"

And,

On page two, after the enacting clause, by striking out the enacting section 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 §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 a colon.

The bill was then ordered to third reading.
Com. Sub. for S. B. 163, Establishing Water Resources Protection Act; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page three, after the enacting section, by striking our the remainder of the bill 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 non-consumptive: 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 and six.

(c) Beginning in the year two thousand and 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.

(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, 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."

The bill was then ordered to third reading.
Com. Sub. for S. B. 165, Simplifying state higher education tuition and fee system; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, by striking out everything after the enacting clause, and inserting in lieu thereof the following:

"That §18B-10-3, §18B-10-4a and §18B-10-10 of the code of West Virginia, 1931, as amended, be repealed; that §18B-4-7 be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-4-9; that §18B-5-4 be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-9-2a; that §18B-10-1, §18B-10-2, §18B-10-4, §18B-10-4b, §18B-10-5, §18B-10-6, §18B-10-7, §18B-10-7a, §18B-10-8, §18B-10-9, §18B-10-11, §18B-10-12, §18B-10-13, §18B-10-14 and §18B-10-15 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-10-1b; that §18C-3-1 of said code be amended and reenacted, all to read as follows:


CHAPTER 18B. HIGHER EDUCATION.

ARTICLE 4. GENERAL ADMINISTRATION.

§18B-4-7. Accreditation of institutions of higher education; standards for degrees.


(a) The appropriate governing board council shall make rules for the accreditation of community and technical colleges in this state and shall determine the minimum standards for conferring degrees. The commission shall make rules for the accreditation of institutions of higher education colleges and universities in this state under its jurisdiction and shall determine the minimum standards for the conferring of degrees. No An institution of higher education may not confer any degree on any basis of work or merit below the minimum standards prescribed by the appropriate governing board council or commission. Nothing contained herein shall infringe in this section infringes upon the rights, including rights to award degrees, granted to any institution by charter given according to law, or by actions of the governing boards council or commission or their predecessors, prior to the adoption effective date of this section.

No Except as otherwise provided in this section, a charter or other instrument containing the right to confer degrees of higher educational education status shall may not be granted by the state of West Virginia to any institution, association or organization within the state, nor shall may any such degree be awarded, until the condition of conferring such the degree has first been approved in writing by the appropriate governing board council or commission.
§18B-4-9. Recognizing the value of competitive sports and establishing limitations and process precedent to their elimination.


(a) The Legislature finds that athletic competition has ancient precedent in the development of strong minds and bodies and has been a source of pride and cohesiveness in societies as old as the city-states of ancient Greece. The Legislature further finds that similar qualities persist today in the athletic competitions supported through our colleges and universities, providing opportunities for students to grow academically, physically and socially, and gaining recognition for their institutions nationally through participation in NCAA competitive team events and through the prowess of individual athletes in national standings and through international Olympic competition. The Legislature finds that these qualities and recognition are important not only as a source of pride and cohesiveness for the citizens of the state and the respective student bodies, but that they help attract positive attention to the other fine qualities of the state and its colleges and universities. Therefore, the purpose of this section is to establish a process and conditions precedent to the elimination competitive sports teams at state institutions of higher education.

(b) Notwithstanding any other provision of this code to the contrary, any National Collegiate Athletic Association eligible team existing at a state institution of higher education on the first day of July, two thousand two, may not be eliminated by the institution unless each of the following conditions have been met:

(1) The institution gives the team a written notice of its intent to eliminate the team in accordance with this section and informs the team of the conditions set forth in this section;

(2) No facilities, equipment, personnel or support of the team may be reduced or eliminated for at least two years from the date of the written notice;

(3) During the two-year period following the institution's notice of intent to eliminate a team, the team shall be permitted to solicit and seek alternative sources of funding and support for the continuation of the team and shall be permitted to continue to compete either as a National Collegiate Athletic Association eligible team or as a club. Any gift, grant, bequest, donation or appropriation of funds made to the institution for the team shall be accepted by the institution and used by the institution solely for the benefit of the team;

(4) If alternative sources of funding and support for the team are secured within the two- year period following the institution's notice of intent to eliminate a team, the team shall not be eliminated; and

(5) If alternative sources of funding and support for the team are not secured within the two-year period following the institution's notice of intent to eliminate a team, the team may be permitted to continue to compete as a club or may be eliminated at the discretion of the institution.
ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.

§18B-5-4. Purchase or acquisition of materials, supplies, equipment, services and printing.


(a) The council, commission and each governing board, through the vice chancellor for administration, shall purchase or acquire all materials, supplies, equipment, services and printing required for that governing board or the council or commission, as appropriate, and the state institutions of higher education under their jurisdiction. The commission and council jointly shall adopt rules governing and controlling acquisitions and purchases in accordance with the provisions of this section. The rules shall assure that the council, commission and the governing boards:

(1) Do not preclude any person from participating and making sales thereof to the governing board or to the council or commission except as otherwise provided in section five of this article. Provision of consultant services such as strategic planning services will not preclude or inhibit the governing boards, or the council or commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services;

(2) Establish and prescribe specifications, in all proper cases, for materials, supplies, equipment, services and printing to be purchased; and

(3) Adopt and prescribe such purchase order, requisition or other forms as may be required;

(4) Negotiate for and make purchases and acquisitions in such quantities, at such times and under contract, in the open market or through other accepted methods of governmental purchasing as may be practicable in accordance with general law;

(5) Advertise for bids on all purchases exceeding twenty-five thousand dollars, to purchase by means of sealed bids and competitive bidding or to effect advantageous purchases through other accepted governmental methods and practices;

(6) Post notices of all acquisitions and purchases for which competitive bids are being solicited in the purchasing office of the specified institution involved in the purchase, at least two weeks prior to making such purchases and ensure that the notice is available to the public during business hours;

(7) Provide for purchasing in the open market;

(8) Make provision Provide for vendor notification of bid solicitation and emergency purchasing; and

(9) Provide that competitive bids are not required for purchases of five twenty-five thousand dollars or less; and

(10) Provide for not fewer than three bids where bidding is required. If fewer than three bids are submitted, an award may be made from among those received.

(b) The council, commission or each governing board, through the vice chancellor for administration, may issue a check in advance to a company supplying postage meters for postage used by that board, the council or commission and by the state institutions of higher education under their jurisdiction.

(c) When a purchase is to be made by bid, any or all bids may be rejected. However, all purchases based on advertised bid requests shall be awarded to the lowest responsible bidder taking into consideration the qualities of the articles to be supplied, their conformity with specifications, their suitability to the requirements of the governing boards, the council or commission and delivery terms. The preference for resident vendors as provided in section thirty-seven, article three, chapter five-a of this code apply to the competitive bids made pursuant to this section.

(d) The governing boards, council and the commission shall maintain a purchase file, which shall be a public record and open for public inspection. After the award of the order or contract, the governing boards, council and the commission shall indicate upon the successful bid that it was the successful bid and shall further indicate why bids are rejected and, if the mathematical low vendor is not awarded the order or contract, the reason therefor. No records A record in the purchase file may not be destroyed without the written consent of the legislative auditor. Those files in which the original documentation has been held for at least one year and in which the original documents have been reproduced and archived on microfilm or other equivalent method of duplication may be destroyed without the written consent of the legislative auditor. All files, no matter the storage method, shall be open for inspection by the legislative auditor upon request.

(e) The commission and council also jointly shall adopt rules to prescribe qualifications to be met by any person who is to be employed as a buyer pursuant to this section. These rules shall require that no a person may not be employed as a buyer unless that person, at the time of employment, either is:

(1) A graduate of an accredited college or university; or

(2) Has at least four years' experience in purchasing for any unit of government or for any business, commercial or industrial enterprise.

(f) Any person making purchases and acquisitions pursuant to this section shall execute a bond in the penalty of fifty thousand dollars, payable to the state of West Virginia, with a corporate bonding or surety company authorized to do business in this state as surety thereon, in form prescribed by the attorney general and conditioned upon the faithful performance of all duties in accordance with this section and sections four five through eight, inclusive, of this article and the rules of the interim governing board and the council and commission. In lieu of separate bonds for such buyers, a blanket surety bond may be obtained. Any such bond shall be filed with the secretary of state. The cost of any such bond shall be paid from funds appropriated to the applicable governing board or the council or commission.

(g) All purchases and acquisitions shall be made in consideration and within limits of available appropriations and funds and in accordance with applicable provisions of article two, chapter five-a of this code, relating to expenditure schedules and quarterly allotments of funds. Notwithstanding any other provision of this code to the contrary, only those purchases exceeding the dollar amount for competitive sealed bids in this section are required to be encumbered and they may be entered into the state's centralized accounting system by the staff of the commission, council or governing boards to satisfy the requirements of article two, chapter five-a, and specifically sections twenty-six, twenty-seven and twenty-eight of said article two, to determine whether the amount of the purchase is within the commission's, council's or governing board's quarterly allotment, is in accordance with the approved expenditure schedule, and otherwise conforms to the provisions of article two, chapter five-a of this code.
(h) The governing boards, council and the commission may make requisitions upon the auditor for a sum to be known as an advance allowance account, in no case to not to exceed five percent of the total of the appropriations for the governing board, council or the commission, and the auditor shall draw a warrant upon the treasurer for such accounts. All advance allowance accounts shall be accounted for by the applicable governing board or the council or commission once every thirty days or more often if required by the state auditor.

(i) Contracts entered into pursuant to this section shall be signed by the applicable governing board or the council or commission in the name of the state and shall be approved as to form by the attorney general. A contract which requires approval as to form by the attorney general and for which is considered approved if the attorney general has not responded within fifteen days of presentation of the contract. the contract shall be considered approved. A contract or a change order for that contract and notwithstanding any other provision of this code to the contrary, associated documents such as performance and labor/material payments, bonds and certificates of insurance which use terms and conditions or standardized forms previously approved by the attorney general and do not make substantive changes in the terms and conditions of the contract do not require approval by the attorney general. The attorney general shall make a list of those changes which he or she deems to be substantive and the list, and any changes thereto, shall be published in the state register. A contract that exceeds fifteen thousand dollars the dollar amount requiring competitive sealed bids in this section shall be filed with the state auditor. If requested to do so, the governing boards, council or the commission shall make all contracts available for inspection by the state auditor. The governing board, council or the commission, as appropriate, shall prescribe the amount of deposit or bond to be submitted with a bid or contract, if any, and the amount of deposit or bond to be given for the faithful performance of a contract.

(j) If the governing board, council or the commission purchases or contracts for materials, supplies, equipment, services and printing contrary to the provisions of sections four through seven of this article or the rules pursuant thereto, such purchase or contract shall be is void and of no effect.

(k) Any governing board or the council or commission, as appropriate, may request the director of purchases to make available, from time to time, the facilities and services of that department to the governing boards, council or the commission in the purchase and acquisition of materials, supplies, equipment, services and printing and the director of purchases shall cooperate with that governing board, council or the commission, as appropriate, in all such purchases and acquisitions upon such request.

(l) Each governing board or the council or commission, as appropriate, shall permit private institutions of higher education to join as purchasers on purchase contracts for materials, supplies, services and equipment entered into by that governing board or the council or commission. Any private school desiring to join as purchasers on such purchase contracts shall file with that governing board or the council or commission an affidavit signed by the president of the institution of higher education or a designee requesting that it be authorized to join as purchaser on purchase contracts of that governing board or the council or commission, as appropriate. The private school shall agree that it is bound by such terms and conditions as that governing board or the council or commission may prescribe and that it will be responsible for payment directly to the vendor under each purchase contract.

(m) Notwithstanding any other provision of this code to the contrary, the governing boards, council and the commission, as appropriate, may make purchases from cooperative buying groups, consortia, the federal government or from federal government contracts if the materials, supplies, services, equipment or printing to be purchased is available from cooperative buying groups, consortia, the federal government or from a federal contract and purchasing from the cooperative buying groups, consortia, federal government or from a federal government contract would be the most financially advantageous manner of making the purchase.

(n) An independent performance audit of all purchasing functions and duties which are performed at any institution of higher education shall be performed each fiscal year. The joint committee on government and finance shall conduct the performance audit and the governing boards, council and the commission, as appropriate, shall be are responsible for paying the cost of the audit from funds appropriated to the governing boards, council or the commission.

(o) The governing boards shall require each institution under their respective jurisdictions to notify and inform every vendor doing business with that institution of the provisions of section fifty-four, article three, chapter five-a of this code, also known as the 'prompt pay act of 1990'.

(p) Consultant services, such as strategic planning services, may not preclude or inhibit the governing boards, council or the commission from considering any qualified bid or response for delivery of a product or a commodity because of the rendering of those consultant services.

(q) After the commission or council, as appropriate, has granted approval for lease-purchase arrangements by the governing boards, a governing board may enter into lease-purchase arrangements for capital improvements, including equipment. Any lease-purchase arrangement so entered shall constitute a special obligation of the state of West Virginia. The obligation under a lease-purchase arrangement so entered may be from any funds legally available to the institution and must be cancelable at the option of the governing board or institution at the end of any fiscal year. The obligation, any assignment or securitization thereof, shall never constitute never constitutes an indebtedness of the state of West Virginia or any department, agency or political subdivision thereof, within the meaning of any constitutional provision or statutory limitation, and may not be a charge against the general credit or taxing powers of the state or any political subdivision thereof. and such Such facts shall be plainly stated in any lease-purchase agreement. Further, the lease-purchase agreement shall prohibit assignment or securitization without consent of the lessee and the approval of the attorney general of West Virginia. Proposals for any arrangement must be requested in accordance with the requirements of this section and any rules or guidelines of the commission and council. In addition, any lease-purchase agreement which exceeds one hundred thousand dollars total shall be approved by the attorney general of West Virginia. The interest component of any lease-purchase obligation shall be is exempt from all taxation of the state of West Virginia, except inheritance, estate and transfer taxes. It is the intent of the Legislature that if the requirements set forth in the Internal Revenue Code of 1986, as amended, and any regulations promulgated pursuant thereto are met, the interest component of any lease-purchase obligation also shall be is exempt from the gross income of the recipient for purposes of federal income taxation and may be designated by the governing board or the president of the institution as a bank-qualified obligation.

(r) Notwithstanding any other provision of this code to the contrary, the commission, council and the governing boards have the authority, in the name of the state, to lease, or offer to lease, as lessee, any grounds, buildings, office or other space in accordance with this paragraph and as provided below:

(1) The commission, council and the governing boards have sole authority to select and to acquire by contract or lease all grounds, buildings, office space or other space, the rental of which is necessarily required by the commission, council or governing boards for the institutions under their jurisdiction. The chief executive officer of the commission, council or an institution shall certify the following:

(A) That the grounds, buildings, office space or other space requested is necessarily required for the proper function of the commission, council or institution;

(B) That the commission, council or institution will be responsible for all rent and other necessary payments in connection with the contract or lease; and

(C) That satisfactory grounds, buildings, office space or other space is not available on grounds and in buildings now currently owned or leased by the commission, council or the institution.

Before executing any rental contract or lease, the commission, council or a governing board shall determine the fair rental value for the rental of the requested grounds, buildings, office space or other space, in the condition in which they exist, and shall contract for or lease the premises at a price not to exceed the fair rental value.

(2) The commission, council and the governing boards are authorized to enter into long-term agreements for buildings, land and space for periods longer than one fiscal year but not to exceed forty years. Any purchase of real estate, any lease-purchase agreement and any construction of new buildings or other acquisition of buildings, office space or grounds resulting therefrom, pursuant to the provisions of this subsection shall be presented by the policy commission or council, as appropriate, to the joint committee on government and finance for prior review. Any such lease shall contain, in substance, all the following provisions:

(A) That the commission, council or the governing board, as lessee, have has the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days' written notice to the lessor at least thirty days prior to the last day of the succeeding month;

(B) That the lease shall be is considered canceled without further obligation on the part of the lessee if the Legislature or the federal government fails to appropriate sufficient funds therefor or otherwise acts to impair the lease or cause it to be canceled; and

(C) That the lease shall be is considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the commission, council or the governing board before the end of the then-current fiscal year.

(3) The commission, council or an institution which is granted any grounds, buildings, office space or other space leased in accordance with this section may not order or make permanent changes of any type thereto, unless the commission, council or the governing board, as appropriate, has first determined that the change is necessary for the proper, efficient and economically sound operation of the institution. For purposes of this section, a 'permanent change' means any addition, alteration, improvement, remodeling, repair or other change involving the expenditure of state funds for the installation of any tangible thing which cannot be economically removed from the grounds, buildings, office space or other space when vacated by the institution.

(4) Leases and other instruments for grounds, buildings, office or other space, once approved by the commission, council or governing board, may be signed by the chief executive officer of the commission, council or the institution. Any lease or instrument exceeding one hundred thousand dollars annually shall be approved as to form by the attorney general. A lease or other instrument for grounds, buildings, office or other space that contains a term, including any options, of more than six months for its fulfillment shall be filed with the state auditor.

(5) The commission and council jointly may promulgate rules it considers they consider necessary to carry out the provisions of this section.

(s) Purchasing card use may be expanded by the council, commission and state institutions of higher education pursuant to the provisions of this subsection.

(1) The council and commission jointly shall establish procedures to be implemented by the council, commission and any institution under their respective jurisdictions using purchasing cards. The procedures shall ensure that each maintains:

(A) Appropriate use of the purchasing card system;

(B) Full compliance with the provisions of article three, chapter twelve of this code relating to the purchasing card program; and

(C) Sufficient accounting and auditing procedures for all purchasing card transactions.

(2) By the first day of November, two thousand four, the council and commission jointly shall present the procedures to the legislative oversight commission on education accountability for its adoption.

(3) Notwithstanding any other provision of this code to the contrary, if the legislative oversight commission on education accountability adopts the procedures, the council, commission, and any institution authorized pursuant to subdivision (4) of this subsection, may use purchasing cards for:

(A) Travel expenses directly related to the job duties of the traveling employee, including fuel and food; and

(B) Any routine, regularly-scheduled payment, including, but not limited to, utility payments and real property rental fees. The council, commission and each institution annually by the thirtieth day of June, shall provide to the state purchasing division a list of all goods or services for which payment was made pursuant to this provision during that fiscal year.

(4) The commission and council each shall evaluate the capacity of each institution under its jurisdiction for complying with the procedures established pursuant to subdivision (3) of this subsection. The commission and council each shall authorize expanded use of purchasing cards pursuant to said subdivision (3) for any such institution it determines has the capacity to comply.
ARTICLE 9. CLASSIFIED EMPLOYEE SALARY SCHEDULE AND CLASSIFICATION SYSTEM.

§18B-9-2a. Nonclassified employee limitation exemption.

The Legislature finds that the doctoral institutions, as defined in section one, article eight of this chapter, have unique staffing demands for their extensive research and doctoral programs, and therefore require additional nonclassified staff. Each doctoral institution may exceed the percentage of nonclassified employees authorized in section two, article nine of this chapter by an additional five percent.
ARTICLE 10. FEES AND OTHER MONEY COLLECTED AT STATE INSTITUTIONS OF HIGHER EDUCATION.

§18B-10-1. Enrollment, tuition and other fees at education institutions; refund of fees.


(a) Each governing board shall fix tuition and other fees for each school term for the different classes or categories of students enrolling at each state institution of higher education under its jurisdiction and may include among such the tuition and fees any one or more of the following as defined in section one-b of this article:

(1) Health service fees Tuition and required educational and general fees;

(2) Infirmary fees Auxiliary and auxiliary capital fees; and

(3) Required educational and general capital fees.

(b) An institution may establish a single special revenue account for each of the following classifications of fees:

(1) All tuition and required educational and general fees collected;

(2) All auxiliary and auxiliary capital fees collected
; and

(3) All required educational and general capital fees collected to support existing system-wide and institutional debt service and future systemwide and institutional debt service, capital projects and campus renewal for educational and general facilities.

(4) Subject to any covenants or restrictions imposed with respect to revenue bonds payable from such accounts, an institution may expend funds from each such special revenue account for any purpose for which funds were collected within that account regardless of the original purpose for which the funds were collected.

(3) (c) The purposes for which tuition and fees may be expended include, but are not limited to, health services, student activities, recreational, athletic and extracurricular fees activities. which fees Additionally, tuition and fees may be used to finance a student's attorney to perform legal services for students in civil matters at such the institutions: Provided, That such the legal services shall be are limited only to those types of cases, programs or services approved by the administrative head of such the institution where such the legal services are to be performed. and

(4) Graduate center fees and branch college fees, or either, if the establishment and operations of graduate centers or branch colleges are otherwise authorized by law.

(b) All fees collected at any graduate center or at any branch college shall be paid into special funds and shall be used solely for the maintenance and operation of the graduate center or branch college at which they were collected The commission shall set tuition and fee goals for residents at each institution after examining tuition and fees at the institutions' peers. Tuition and fees for nonresident, undergraduate students shall, at a minimum, cover actual instructional costs as determined in accordance with commission policy. Students enrolled in undergraduate courses offered at off-campus locations shall pay an off-campus instruction fee and may not be required to pay the athletic fee and the student activity fee

(d) The commission and council jointly shall propose a rule for legislative approval in accordance with the provisions of article three-a, chapter twenty-nine-a of this code to govern the fixing, collection and expenditure of tuition and other fees.

(e) The Legislature finds that an emergency exists and, therefore, the commission and council jointly shall file the rule required by subsection (d) of this section as an emergency rule pursuant to the provisions of article three-a, chapter twenty-nine-a of this code, subject to the prior approval of the legislative oversight commission on education accountability.

(c) The off-campus instruction fee shall be used solely for the support of off-campus courses offered by the institution. Off-campus locations for each institution shall be defined by the appropriate governing board.

(f) The schedule of all tuition and fees, and any changes therein, shall be entered in the minutes of the meeting of the appropriate governing board and the board shall file with the commission or council, or both, as appropriate, and the legislative auditor a certified copy of such schedule and changes.

(d) In addition to the fees mentioned in the preceding paragraph, each governing board may impose and collect a student union building fee. All such building fees collected at an institution shall be paid into a special student union building fund for such institution, which is hereby created in the state treasury. Pursuant to the provisions of section ten of this article, the fees shall be used only for the following purposes:

(1) The construction, operation and maintenance of a student union building or a combination student union and dining hall building;

(2) The payment of the principal of and interest on any bond issued to finance part or all of the construction of a student union building or a combination student union and dining hall building; or

(3) The renovation of an existing structure for use as a student union building or a combination student union and dining hall building, all as more fully provided in section ten of this article.

Any moneys in such funds not needed immediately for such purposes may be invested in any such bonds or other securities as are now or hereafter authorized as proper investments for state funds.

(e) (g) The boards shall establish the rates to be charged full-time students, as defined in section one-b of this article, who are enrolled during a regular academic term.

(1) For fee purposes, a full-time undergraduate student is one enrolled for twelve or more credit hours in a regular term, and a full-time graduate student is one enrolled for nine or more credit hours in a regular term.

(2) (1) Undergraduate students taking fewer than twelve credit hours in a regular term shall have their fees reduced pro rata based upon one twelfth of the full-time rate per credit hour and graduate students taking fewer than nine credit hours in a regular term shall have their fees reduced pro rata based upon one ninth of the full-time rate per credit hour.

(3) (2) Fees for students enrolled in summer terms or other nontraditional time periods shall be prorated based upon the number of credit hours for which the student enrolls in accordance with the above provisions.

(f) (h) All fees are due and payable by the student upon enrollment and registration for classes except as provided for in this subsection:

(1) The governing boards shall permit fee payments to be made in up to three installments over the course of the academic term. All fees shall be paid prior to the awarding of course credit at the end of the academic term.

(2) The governing boards also shall authorize the acceptance of credit cards or other payment methods which may be generally available to students for the payment of fees. The governing boards may charge the students for the reasonable and customary charges incurred in accepting credit cards and other methods of payment.

(3) If a governing board determines that a student's finances are affected adversely by a legal work stoppage, it may allow the student an additional six months to pay the fees for any academic term. The governing board shall determine on a case-by-case basis if the finances of a student are affected adversely.

(4) The commission and council jointly shall propose a rule in accordance with the provisions of article three-a, chapter twenty-nine-a of this code, defining conditions under which an institution may offer tuition and fee deferred payment plans through the institution or through third parties.

(5) An institution may charge interest or fees for any deferred or installment payment plans.
(g) The rule related to assessment, payment and refund of fees including refund of fees upon voluntary or involuntary withdrawal from classes, shall comply with all applicable state and federal laws and shall be uniformly applied throughout the system.

(h) (i) In addition to the other fees provided in this section, each governing board may impose, collect and distribute a fee to be used to finance a nonprofit, student-controlled public interest research group if the students at the institution demonstrate support for the increased fee in a manner and method established by that institution's elected student government. The fee may not be used to finance litigation against the institution.

(j) In addition to the other fees provided in this section, each governing board has the authority to impose, collect and expend the proceeds of a special equity fee under the following conditions:

(1) The fee shall be used solely for the purpose of complying with the athletic provisions of 20 U. S. C. §1681,
et seq., known as Title IX of the Education Amendment of 1972;

(2) The fee is exempt from limitations on fee increases set forth in this article for three years from the effective date of this section;

(3) The fee may not be used by an institution to advance its classification of participation in its athletics governing body; and

(4) The fee may not be imposed upon part-time students or students enrolled in an administratively linked community and technical college.

(i) (k)Institutions shall retain tuition and fee revenues not pledged for bonded indebtedness or other purposes in accordance with a revised policy adopted by the respective governing boards and approved the tuition rule proposed by the commission and council jointly pursuant to this section. The revised tuition policy rule shall:

(1) Provide a basis for establishing nonresident tuition and fees;

(2) Allow institutions to charge different tuition and fees for different programs;

(3) Provide that a board of governors may propose to the commission, council or both, as appropriate, a mandatory auxiliary fee under the following conditions:

(A) The fee shall be approved by the commission, council or both, as appropriate, and either the students below the senior level at the institution or the Legislature before becoming effective;

(B) Increases may not exceed previous state subsidies by more than ten percent;

(C) The fee may be used only to replace existing state funds subsidizing auxiliary services such as athletics or bookstores;

(D) If the fee is approved, the amount of the state subsidy shall be reduced annually by the amount of money generated for the institution by the fees. and that amount shall be returned to general revenue All state subsidies for the auxiliary services shall cease five years from the date the mandatory auxiliary fee was is implemented;

(E) The commission, council or both, as appropriate, shall certify to the Legislature by the first day of October in the fiscal year following implementation of the fee, and annually thereafter, the amount of fees collected for each of the five years;

(4) Establish methodology, where applicable, to ensure that, within the appropriate time period under the compact, community and technical college tuition rates for community and technical college students in all independently accredited community and technical colleges will be commensurate with the tuition and fees charged by their peer institutions.

(j) (l) A penalty may not be imposed by the commission or council upon any institution based upon the number of nonresidents who attend the institution unless the commission or council determines that admission of nonresidents to any institution or program of study within the institution is impeding unreasonably the ability of the resident students to attend the institution or participate in the programs of the institution. The institutions shall report annually to the commission or council on the numbers of nonresidents and such other enrollment information as the commission or council may request.

(k) (m) Tuition and fee increases of the governing boards are subject to rules adopted by the commission and council jointly pursuant to this section and in accordance with the provisions of article three-a, chapter twenty-nine-a of this code. pursuant to subsection (a), section four, article one-b of this chapter

(1) A governing board of an institution under the jurisdiction of the commission may propose tuition and fee increases of up to nine and one-half percent for undergraduate resident students for any fiscal year. Subject to the provisions of subsection (j) of this section, the nine and one-half percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board. except that proposed tuition and fees increases for community and technical colleges may be A governing board of an institution under the jurisdiction of the council may propose tuition and fee increases of up to four and three quarters percent. Subject to the provisions of subsection (j) of this section, the four and three-quarters percent total includes the amount of increase over existing tuition and fees, combined with the amount of any newly established, specialized fee which may be proposed by a governing board. Any proposed increase shall be approved by the commission. The commission or council, as appropriate, shall examine individually each request from a governing board for an increase. Any proposed increase requires the approval of the commission or council, as appropriate. Approval for any increase shall be based on a determination by the commission that the institution has met the following conditions:
In determining whether to approve or disapprove the governing board's request, the commission or council shall determine the progress the institution has made toward meeting the conditions outlined in this subdivision and shall make this determination the predominate factor in its decision. The commission or council shall consider the degree to which each institution has met the following conditions:

(A) Has maximized resources available through nonresident tuition and fee charges to the satisfaction of the commission or council;

(B) Is consistently achieving the benchmarks established in the compact of the institution pursuant to the provisions of article one-a of this chapter;

(C) Is continuously pursuing the statewide goals for post-secondary education and the statewide compact established in articles one and one-a of this chapter;

(D) Is implementing the efficiency measures required by section nine, article five of this chapter;

(E) Has demonstrated to the satisfaction of the commission or council that an increase will be used to maintain high-quality programs at the institution;

(F) Has demonstrated to the satisfaction of the commission or council that the institution is making adequate progress toward achieving the goals for education established by the southern regional education board; and

(G) To the extent authorized, will increase by up to five percent the available tuition and fee waivers provided by the institution. The increased waivers may not be used for athletics.

(2) In making a determination on tuition and fee proposals the commission also may take into consideration whether the per capita income in an institution's service region exceeds the state per capita income. For the purposes of this subdivision only:

(A) Service region is the county in which the main campus of the institution is located and the contiguous West Virginia counties; and

(B) Per capita income for the service region shall be computed using the most current annual, county-level per capita income data published by the United States department of commerce, bureau of economic analysis, weighted by the compatible year population estimates published by the United States census bureau.

(3) (2) This section may not be construed to does not require equal increases among institutions or to require any level of increase at an institution.

(4) (3) The commission and council shall report to the legislative oversight commission on education accountability regarding the basis for each approval or denial as determined using the criteria established in subdivision (1) of this subsection.

(n) The amount of fees assessed immediately prior to the effective date of this act under the provisions of this article relating to a higher education resource fee, a faculty improvement fee, a medical education fee, a health professions fee and a student activities fee are included in the appropriate tuition or fees classifications established under subsection (a) of this section.
§18B-10-1b. Definitions.

For the purposes of this article, the following words have the meanings specified unless the context clearly indicates a different meaning:

(a) 'Auxiliary capital fees' means charges levied on students to support debt service, capital projects and campus maintenance and renewal for the auxiliary facilities of the institutions;

(b) 'Auxiliary fees' means charges levied on all students to support auxiliary enterprises or optional charges levied only on students using the auxiliary service. Auxiliary fees include sales and service revenue from entities that exist predominately to furnish goods or services to students, faculty or staff such as residence halls, faculty and staff housing, food services, intercollegiate athletics, student unions, bookstores, parking and other service centers;

(c) 'Full-time graduate student' means a graduate student who is enrolled for nine or more credit hours in a regular term;

(d) 'Full-time undergraduate student' means an undergraduate student who is enrolled for twelve or more credit hours in a regular term;

(e) 'Required educational and general capital fees' means:

(1) Charges levied on all students to support debt service of systemwide bond issues; and

(2) Charges levied on all students to support debt service, capital projects and campus maintenance and renewal for an institution's educational and general educational facilities; and

(f) 'Tuition and required educational and general fees' means:

(1) Charges levied on all students of that class or category to support educational and general program services; and

(2) Optional charges levied for education and general services collected only from students using the service or from students for whom the services are made available. Educational and general expenditures are categorized as instruction, research, academic support, student services, institutional support, operation and maintenance of plant and scholarships and fellowships. Education and general expenditures do not include expenditures for auxiliary enterprises, hospitals or independent operations.
§18B-10-2. Higher education resource assessment.

In addition to the fees specifically provided for in section one of this article, all students enrolled for credit at a state institution of higher education shall pay a higher education resource fee.

(a) Pursuant to the authority granted by section four, article one-b of this chapter, and section six, article two-b of this chapter, the commission and council jointly shall establish a higher education resource assessment per student for each state institution of higher education under their respective jurisdictions. Community and technical colleges shall transfer all funds collected pursuant to this section to the council. All other institutions shall transfer all funds collected pursuant to this section to the commission. Any reference in this code to higher education resource fee means this higher education resource assessment.

(b) The commission and council jointly shall fix the fee rates assessment for the various institutions and classes of students under its jurisdiction and may, from time to time, change these rates and may periodically change these assessments. The amount of the fee charged at assessment for each institution shall be prorated for part-time students. The fee imposed by this section is in addition to the maximum fees allowed to be collected under the provision of section one of this article and is not limited thereby. Refunds of such fee may be made in the same manner as any other fee collected at state institutions of higher education.

Ninety percent of the total fees collected at each institution pursuant to this section shall be deposited in a special fund in the state treasury for the institution at which the fees are collected and may be used by the institution for

(c) Each institution shall maintain a level of support for
libraries and library supplies, including books, periodicals, subscriptions and audiovisual materials, instructional equipment and materials; and for the improvement in quality and scope of student services comparable to that level supported by the higher education resource fee previously authorized by this section. Up to ten percent of the fee collections

(d) The assessment
shall be deposited in a special fund and expended or allocated by the commission or council to meet its general operating expenses of the commission or to fund statewide programs. Provided, That the board shall, to the maximum extent practicable To the maximum extent practicable, the commission and council shall offset the impact, if any, on financially needy students of any potential fee increases assessment increase under this section by allocating an appropriate amount of such fee the revenue to the state scholarship program to be expended in accordance with the provisions of article five, chapter eighteen-c of this code.

The commission shall on or before the first day of July of each year, provide the legislative auditor with a report of the projected fee collections for the board and each of its institutions and the expenditures proposed for such fee.
§18B-10-4. Medical education.

In addition to the fees specifically provided for in sections one, two and three of this article, all

The commission shall determine an appropriate portion of all tuition and fees paid by medical students enrolled for credit at the West Virginia university school of medicine, Marshall university school of medicine and the West Virginia school of osteopathic medicine to be used to support the health education student loan fund. shall pay a medical education fee. The board of trustees shall fix the fee rates for students at each institution and may from time to time change these rates. The fee imposed by this section is in addition to the maximum fees allowed to be collected under the provisions of section one of this article and is not limited thereby. Refunds of the fee may be made in the same manner as any other fee collected at state institutions of higher education. Medical education fees collected shall be deposited in a special revenue account which is hereby created in the state treasury for the school at which the fees are collected and shall be used by the school to offset general operating costs: Provided, That the board of trustees shall deposit a portion of the total fees collected therein into The portion determined by the commission for this purpose shall be deposited into the health education student loan fund account in accordance with the provisions of article three, chapter eighteen-c of this code.

Before the first day of July of each year, the board of trustees shall provide the legislative auditor with a report of the projected fee collections for each of the schools of medicine.
§18B-10-4b. Additional fee waivers for health sciences and technology academy programs.


(a) In addition to the number of fee waivers permitted in sections five and six of this article for undergraduate, graduate and professional schools, each state institution of higher education may waive all fees or any part thereof for students who are residents of West Virginia and who successfully complete the health sciences and technology academy affiliated programs. as defined in chapter eighteen-b, article one, section two of the code of West Virginia.
(b) For purposes of this section four-b, article ten, chapter eighteen-b of this code, 'Health Sciences and Technology Academy Programs' means those programs in the for health sciences designed to assist junior high and high school students in conjunction with their parents and teachers, to enhance their knowledge and abilities in subject matters which would will further a career in the field of health sciences.
§18B-10-5. Fee waivers -- Undergraduate schools.

Each governing board periodically may establish fee waivers for students in undergraduate studies at institutions under its jurisdiction entitling recipients to waiver of enrollment, tuition registration, higher education resource tuition, capital and other fees subject to the following conditions and limitations:

(1) No state educational institution may

(a) A state institution of higher education may not have in effect at any time a number of undergraduate fee waivers in a number which exceeds five percent of the number of full-time equivalent undergraduate students registered during the fall semester of the immediately preceding academic year.

(2) (b) Each undergraduate fee waiver shall entitle entitles the recipient thereof to attend a designated state educational institution of higher education without payment of the enrollment, tuition, registration, higher education resource capital and other fees as may be prescribed by the governing board and be is for a period of time not to exceed eight semesters of undergraduate study.

(3) (c) The governing board shall make rules governing the award of undergraduate fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the recipients; and the rights and duties of the recipients in with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.

(4) (d) The awarding of undergraduate fee waivers shall be entered in the minutes of the meetings of the governing board. and each board shall file with the legislative auditor a copy of the rules governing the award of the fee waivers and a list of the names of the recipients thereof

(e) Students enrolled in an administratively-linked community and technical college will be awarded a proportionate share, based upon full-time equivalent enrollment, of the total number of undergraduate fee waivers awarded by a governing board.
§18B-10-6. Fee waivers - Professional and graduate schools.

In addition to the fee waivers heretofore authorized for undergraduate study by the provisions of section five of this article, each governing board periodically may establish from time to time fee waivers for study in graduate and professional schools under their its jurisdiction, including medicine and dentistry, entitling the recipients to waiver of enrollment tuition, registration higher education resource capital, and other fees, subject to the following conditions and limitations:

(1) (a) West Virginia university may not have in effect at any time graduate and professional school fee waivers in a number which exceeds ten percent of the number of full-time equivalent graduate and professional students registered during the corresponding fall semester, spring semester and summer term of the immediately preceding academic year. In addition to the above ten percent, all graduate assistants employed by West Virginia university shall be granted a fee waiver.

(b) All other Institutions of higher education other than West Virginia university may not have in effect at any time a number of graduate and professional school fee waivers in a number which exceeds five percent of the number of full-time equivalent graduate and professional students registered during the corresponding fall semester, spring semester and summer term of the immediately preceding academic year. In addition to the above five percent, all graduate assistants employed by the other these institutions shall be granted a fee waiver.

(2) (c) Each graduate or professional school fee waiver shall entitle entitles the recipient to waiver of the enrollment, tuition, registration higher education resource capital, and other fees as may be prescribed by the governing boards and be is for a period of time not to exceed the number of semesters normally required in the recipient's academic discipline.

(3) (d) The governing boards shall make rules governing the award of graduate and professional school fee waivers; the issuance and cancellation of certificates entitling the recipients to the benefits thereof; the use of the fee waivers by the recipients; and the rights and duties of the recipients in with respect to the fee waivers. These rules may not be inconsistent with the provisions of this section.

(4) (e) The awarding of graduate and professional school fee waivers shall be entered in the minutes of the meeting of each governing board. and each board shall file with the legislative auditor a copy of the rules governing the award of the fee waiver and a list of the names of the recipients thereof.
§18B-10-7. Tuition and fee waivers for children and spouses of officers and firefighters killed in the line of duty.

Each state institution of higher education shall permit any person to attend its undergraduate courses and classes if classroom space is available without charging such the person any tuition or any fees, including those provided in sections two and three of this article, if such the person is the child or spouse of an individual who was killed in the line of duty while employed by the state or any political subdivision thereof as: A law-enforcement officer as defined in section one, article twenty-nine, chapter thirty of this code; a correctional officer at a state penal institution; a conservation officer; a registered or professional firefighter; a firefighter with a volunteer fire department serving a political subdivision of this state; a member of the national guard who had been called into active state duty by the governor under section four, article one, chapter fifteen of this code; a certified emergency medical service attendant or personnel as defined in section three, article four-c, chapter sixteen of this code, and such officer or firefighter was killed in the line of duty while employed by the state or any political subdivision thereof, or such firefighter was a member of a volunteer fire department serving a political subdivision of this state: Provided, That The state institution of higher education may require such the person to pay special fees, including any laboratory fees, if such fees are required of all other students taking a single or the particular course. and The institution may also require such the person to pay for parking. The governing boards may promulgate rules for determining the availability of classroom space and other rules as it considers necessary to implement this section, including rules regarding qualifications for attendance, which shall may not exceed the qualifications required of other persons.
The governing boards may also extend to persons attending courses and classes under this section any rights, privileges or benefits extended to other students which it considers appropriate.
§18B-10-7a. Tuition and fee waivers or adjustments for residents at least sixty-five years old.

The board of trustees and the board of directors
(a) Each governing board shall promulgate a joint rule in accordance with article three-a, chapter twenty-nine-a of this code that establishes rule establishing a reduced tuition and fee program for senior citizens. The joint rule shall include at least the following:
(a) The program shall include
(1) One option for those individuals who attend undergraduate and graduate courses without receiving credit and one option for individuals those who attend undergraduate and graduate courses for credit;
(b) A participant
(2) A requirement that the following conditions be met under either option of the program: shall meet the following requirements:
(1) (A) The participant is a resident of West Virginia;
(2) (B) The participant is sixty-five years of age or older; and
(3) (C) Classroom space is available; and
(4) The instructor of the class consents;
(c)(3) A method of establishing priority for allowing a participant to attend a class or course;
(d)(4) A determination of whether to require participants to pay special fees, including laboratory fees, if the fees are required of all other students;
(e)(5) A determination of whether to require participants to pay for parking;
(f)(6) Requirements for participants in the program under the no credit option:
(1)(A) A grade or credit may not be given; and
(2) (B) The total tuition and fees charged for each course or class, excluding laboratory and parking fees, may not exceed fifty dollars. Provided, That After the first day of July, two thousand four, the governing boards may by joint rule change the maximum fee; and
(g) (7) A requirement for participants in the program under the for credit option that tuition and fee rates may not exceed fifty percent of the normal rates charged to state residents by the institution.
(b) The provisions of this section apply to both classroom- based courses, electronic and internet-based courses, and all other distance education delivery.
§18B-10-8. Collection; disposition and use of capital and auxiliary capital fees; creation of special capital and auxiliary capital improvements funds; revenue bonds.

(a) In addition to all other fees imposed by the governing boards, there is hereby imposed and the governing boards are hereby directed to provide for the collection of an additional registration fee from all students enrolled in any state institution of higher education under its jurisdiction in the amounts hereinafter provided.

(a) Effective the first day of July, two thousand four, this section, and any rules adopted by the commission, council, or both, in accordance with this section and article three-a, chapter twenty-nine-a of this code, govern the collection, disposition and use of the capital and auxiliary capital fees authorized by section one of this article. Prior to the first day of July, two thousand four, the statutory provisions governing collection and disposition of capital funds in place prior to the enactment of this section remain in effect.

(1) (b) Fees for full-time students. -- The governing boards shall fix capital and auxiliary capital fees for full-time students at each state institution of higher education, the additional registration fee shall be fifty dollars per semester. For institutions under its jurisdiction, the a governing boards have authority to increase board may fix such additional registration fee fees at institutions of higher education under its jurisdiction at higher rates for students who are nonresidents not residents of this state.

(2) (c) Fees for part-time students. - For all part-time students and for all summer school students, the governing boards shall impose and collect such fee fees in proportion to, but not exceeding, that the fees paid by full-time students. (b) The fee imposed by this section is in addition to the maximum fees allowed to be collected under the provision of section one of this article and may not be limited thereby. Refunds of such fee fees may be made in the same manner as any other fee collected at state institutions of higher education.

(c) (d) There is created in the state treasury a special capital improvements fund and special auxiliary capital improvements fund for each state institution of higher education and the commission into which shall be paid all proceeds, of the respectively, of:

(1) The additional registration capital and auxiliary capital fees collected from students at all state institutions of higher education pursuant to this section; and

(2) The fees collected from such students pursuant to section one of this article.
to

The fees shall be expended by the commission and governing boards for the payment of the principal of or interest on any revenue bonds issued by the board of regents or the succeeding governing boards for which such registration fees were pledged prior to the enactment of this section.

(d) (e) The governing boards may make expenditures from any of the special capital improvements funds or special auxiliary capital improvement funds established in this section to finance, in whole or in part, together with any federal, state or other grants or contributions, for any one or more of the following projects:
(1) The acquisition of land or any rights or interest therein; (2) The construction or acquisition of new buildings;


(3) The renovation or construction of additions to existing buildings;

(4) The acquisition of furnishings and equipment for any such buildings; and

(5) The construction or acquisition of any other capital improvements or capital education facilities at such state institutions of higher education, including any roads, utilities or other properties, real or personal, or for other purposes necessary, appurtenant or incidental to the construction, acquisition, financing and placing in operation of such buildings, capital improvements or capital education facilities, including student unions, dormitories, housing facilities, food service facilities, motor vehicle parking facilities and athletic facilities.

(e) (f) The governing boards, in their discretion, may use the moneys in such special capital improvements funds and special auxiliary improvement funds to finance the costs of the above purposes on a cash basis. or The commission, upon request of institutions or when singly or jointly requested by the governing boards, singly or jointly, may from time to time periodically may issue revenue bonds of the state as provided in this section to finance all or part of such purposes and pledge all or any part of the moneys in such special funds for the payment of the principal of and interest on such revenue bonds, and for reserves therefor. Any pledge of such special funds for such revenue bonds shall be a prior and superior charge on such special funds over the use of any of the moneys in such funds to pay for the cost of any of such purposes on a cash basis. Provided, That Any expenditures from such special funds, other than for the retirement of revenue bonds, may only be made by the commission or governing boards only to meet the cost of a predetermined capital improvements program for one or more of the state institutions of higher education, in such order of priority as was agreed upon by the governing board or boards and the commission and for which the aggregate revenue collections projected are presented to the governor for inclusion in the annual budget bill, and only with the approval of are approved by the Legislature as indicated by direct appropriation for the purpose for expenditure.

(f) (g) Such revenue bonds periodically may be authorized and issued from time to time by the commission or governing boards to finance, in whole or in part, the purposes provided in this section in an aggregate principal amount not exceeding the amount which the commission determines can be paid as to both principal and interest and reasonable margins for a reserve therefor from the moneys in such special funds.

(g) (h) The issuance of such revenue bonds shall be authorized by a resolution adopted by the governing board receiving the proceeds and the commission and such revenue bonds shall bear such date or dates; mature at such time or times not exceeding forty years from their respective dates; be in such form either coupon or registered, with such 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 prior redemption at such prices not exceeding one hundred five per centum of the principal amount thereof; and shall have such other terms and provisions as determined by the governing board receiving the proceeds and the commission. Such revenue bonds shall be signed by the governor and by the chancellor of the commission or the chair of the governing boards authorizing the issuance thereof, under the great seal of the state, attested by the secretary of state, and the coupons attached thereto shall bear the facsimile signature of the chancellor of the commission or the chair of the appropriate governing boards. Such revenue bonds shall be sold in such manner as the commission or governing board determines is for the best interests of the state.

(h) (i) The commission or governing boards may enter into trust agreements with banks or trust companies, within or without the state, and in such trust agreements or the resolutions authorizing the issuance of such bonds may enter into valid and legally binding covenants with the holders of such revenue bonds as to the custody, safeguarding and disposition of the proceeds of such revenue bonds, the moneys in such special funds, sinking funds, reserve funds or any other moneys or funds; as to the rank and priority, if any, of different issues of revenue bonds by the commission or governing boards under the provisions of this section; as to the maintenance or revision of the amounts of such additional registration fees; as to the extent to which swap agreements, as defined in section two-h, article two-g, chapter thirteen of this code shall be used in connection with such revenue bonds, including such provisions as payment, term, security, default and remedy provisions as the commission shall consider necessary or desirable, if any, under which such additional registration fees may be reduced; and as to any other matters or provisions which are deemed considered necessary and advisable by the commission or governing boards in the best interests of the state and to enhance the marketability of such revenue bonds.

(i) (j) After the issuance of any of such revenue bonds, the additional registration fees at the state institutions of higher education pledged to the payment thereof may not be reduced as long as any of such revenue bonds are outstanding and unpaid except under such terms, provisions and conditions as shall be contained in the resolution, trust agreement or other proceedings under which such revenue bonds were issued. Such revenue bonds shall be and constitute negotiable instruments under the uniform commercial code of this state; shall, together with the interest thereon, be exempt from all taxation by the state of West Virginia, or by any county, school district, municipality or political subdivision thereof; and such revenue bonds may not be considered to be obligations or debts of the state and the credit or taxing power of the state may not be pledged therefor, but such revenue bonds shall be payable only from the revenue pledged therefor as provided in this section.

(j) (k) Additional revenue bonds may be issued by the commission or governing boards pursuant to this section and financed by additional revenues or funds dedicated from other sources. It is the intent of the Legislature to authorize over a five-year period beginning on the seventeenth first day of June July, two thousand four, additional sources of revenue and funds to effect such funding for capital improvement.

(k) (l) Funding of systemwide and campus-specific revenue bonds under any other section of this code is hereby continued and authorized pursuant to the terms of this section. Revenues of any state institution of higher education pledged to the repayment of any revenue bonds issued pursuant to this code shall remain the responsibility of that institution pledged.

(l) (m) Any revenue bonds for state institutions of higher education proposed to be issued under this section or article twelve-b, chapter eighteen other sections of this code first must be first approved by the commission.

(m) (n) Revenue bonds issued pursuant to article twelve-b, chapter eighteen of this code may be issued by the commission or governing boards, either singly or jointly.

(n) (o) Fees pledged for repayment of revenue bonds issued under this section or article twelve-b, chapter eighteen prior to the effective date of this section shall be transferred to the commission in a manner prescribed by the commission. The commission shall have the authority to transfer funds from the accounts of institutions pledged for the repayment of revenue bonds issued prior to the effective date of this section or issued subsequently by the commission upon the request of institutions, if an institution fails to transfer the pledged revenues to the commission in a timely manner.

(p) Effective the first day of July, two thousand four, the capital and auxiliary capital fees authorized by this section and section one of this article are in lieu of any other fees set out in this code for capital and auxiliary capital projects to benefit public higher education institutions. Notwithstanding any other provisions of this code to the contrary, in the event any capital, tuition, registration or auxiliary fees are pledged to the payment of any revenue bonds issued pursuant to any general bond resolutions of the commission, any of its predecessors or any institution, adopted prior to the effective date of this section, such fees shall remain in effect in amounts not less than the amounts in effect as of that date, until such time as the revenue bonds payable from any of such fees have been paid or the pledge of such fees is otherwise legally discharged.
§18B-10-9. Authority to excuse students in certain educational programs from payment of enrollment fees.

Whenever the cost of any institute, workshop, special course, or other educational program is wholly financed by a grant from any federal, state or local agency or from any foundation, corporation or other association or person, except for indirect costs of administration and other overhead expenses, such as the cost of providing classrooms and other facilities, the governing board of the state educational institution of higher education administering such the program shall have has the authority to excuse all students enrolled in such program from the payment of tuition registration and other enrollment fees.
§18B-10-11. Fees and money derived from athletic contests.

The directors of athletics at governing board of a state institutions institution of higher education may fix and charge admission fees to athletic contests at state institutions of higher education under its jurisdiction. and The governing board may enter into contracts and spend and receive money under such contracts for the student athletic teams of state the institutions of higher education to contest with other athletic teams inside or outside the state. All money received from such fees and contracts shall be deposited in to the athletic accounts of the state institutions of higher education the auxiliary operating account of the institution and expended for any purpose considered necessary and proper by the governing board.

All money derived from such fees and under such contracts shall be used to defray the cost of maintaining the athletic department and athletic program of such institutions. The operation of training camps and training tables and providing room accommodations for participants in the athletic program of such institutions shall be recognized and considered as a proper part of such maintenance, but the specific mention of training camps and training tables and providing room accommodations shall not be construed or understood to limit in any way the general power and authority otherwise granted and conferred by this section: Provided, That one percent of the total gross receipts deposited into the athletic accounts and (2) not less than twenty-five percent of the net receipts from televised athletic events, bowl games and post-season tournaments deposited into the athletic accounts shall be transferred into a separate and distinct special revenue account for each individual state institution of higher education, which special revenue account shall be designated 'athletic facilities construction, repair or replacement reserve account,' in the state treasury. Such revenues shall be used only for construction, repair or replacement of athletic facilities at the same individual state institution of higher education to which such special revenue account is credited. Notwithstanding any other provision in this section to the contrary, in the year in which they are received, no more than twenty-five percent of the net receipts from televised athletic events, bowl games and post-season tournaments deposited into athletic accounts may be transferred into other accounts of the same state institution of higher education having such receipts for the support of academic programs to meet an occasional rather than recurrent need or expense, and in accord with legislative rules promulgated by the appropriate governing board in accordance with chapter twenty-nine-a of this code, notwithstanding any other provision of this code to the contrary.
§18B-10-12. Student activities.

(a) The president or other administrative head governing board of any a state institution of higher education may authorize the collection of fees from students for the may make funds available from tuition and fees to support of extracurricular activities of the students as considered necessary. and after authorizing the collection of such fees, the president or other administrative head shall file with the state auditor and state budget director a certified detailed statement of the fees amount authorized to be collected expended and the purpose for which they are to be spent.

(b) Each institution shall maintain a level of support for extracurricular activities of the students comparable to that level supported by student activities fees previously authorized by this section.
§18B-10-13. Fees from operation of dormitories, faculty homes, dining halls and cafeterias.


The appropriate governing board of each state institution of higher education shall fix the fees to be charged students and faculty members for rooms, board and meals at the dormitories, faculty homes, dining halls and cafeterias operated by such board at the institution. Such fees shall be commensurate with the complete cost of such services.

All fees collected for such services shall be used first to meet interest, principal and sinking fund requirements due on any outstanding revenue bonds for which the receipts may have been pledged as security and to pay the operating and maintenance costs of the dormitories, faculty homes, dining halls and cafeterias. and to meet interest, principal and sinking fund requirements due on any outstanding revenue bonds for which such receipts may have been pledged as security. Any such receipts not needed for these purposes may be expended by the appropriate governing board to defray the costs in whole or in part for the construction of any such facility for any other auxiliary enterprise or educational and general instructional costs.
§18B-10-14. Bookstores.

The appropriate governing board of each state institution of higher education shall have the authority to

(a) Each governing board may establish and operate a bookstore at the institution. The bookstore shall be operated for the use of the institution itself, including each of its schools and departments, in making purchases of the institutions under its jurisdiction to sell books, stationery and other school and office supplies generally carried in college stores bookstores. and for the benefit of students and faculty members in purchasing such products for their own use, but no sales shall be made to the general public.

(b) The prices to be charged the institution, the students and the faculty for such products shall be fixed by the governing board, shall may not be less than the prices fixed by any fair trade agreements and shall, in all cases, include in addition to the purchase price paid by the bookstore a sufficient handling charge to cover all expenses incurred for personal and other services, supplies and equipment, storage and other operating expenses. to the end that the prices charged shall be commensurate with the total cost to the state of operating the bookstore

(c) Each governing board also shall also ensure that bookstores operated at institutions under its jurisdiction meet the additional objective of minimizing the costs to students of purchasing textbooks by adopting policies which may require the repurchase and resale of textbooks on an institutional or a statewide basis and provide for the use of certain basic textbooks for a reasonable number of years.
(d) All moneys derived from the operation of the store bookstore shall be paid into a special revenue fund as provided in section two, article two, chapter twelve of this code. Subject to the approval of the governor, each governing board periodically shall subject to the approval of the governor, fix and, from time to time change the amount of the revolving fund necessary for the proper and efficient operation of each bookstore.
(e) Moneys derived from the operation of the bookstore shall be used first to replenish the stock of goods and to pay the costs of operating and maintaining the store bookstore. From any balance in the Marshall university bookstore fund not needed for operation and maintenance and replenishing the stock of goods, the governing board of that institution shall have authority to expend a sum not to exceed two hundred thousand dollars for the construction of quarters to house the bookstore in the university center at Marshall university. Until such quarters for housing the bookstore are completed, the governing board of Marshall university and the governor shall take this authorization into account in fixing the amount of the revolving fund for the Marshall university bookstore. Notwithstanding any other provision of this section, any institution that has contracted with a private entity for bookstore operation shall deposit into an appropriate account all revenue generated by the operation and enuring to the benefit of the institution. The institution shall use the funds for nonathletic scholarships.
§18B-10-15. Authority of educational institutions to provide special services and programs; collection and disposition of fees therefor.

(a) The appropriate governing board of each state institution of higher education shall have authority to may provide special services and special programs at such institutions and may fix and collect special fees or charges therefor. Such special services and special programs may include, but are not limited to, any one or more of the following:
(1) The conduct of music camps and band, orchestra or voice clinics for secondary school students or other youth groups; summer tutoring programs for primary and secondary school students; speech therapy clinics and services; educational and psychological testing programs; student guidance programs; and statistical studies and calculations by an electronic computer service.
(2) Rental of lockers or other storage facilities and the maintenance and operation of parking facilities for use by students, faculty, staff and visitors.
(3) Rental of musical recordings, educational films, slides and other audiovisual aids.
(4) Microfilming or other mechanical reproduction of records and noncopyrighted library reference materials.
(5) Institutes, conferences, workshops, postgraduate and refresher noncredit courses and any other special program or special service customarily provided by institutions of higher education.
(6) Motor pools consisting of motor vehicles for the use of their employees when carrying on the business and affairs of the institutions.
(b) All fees or charges collected for any such special services or programs shall be paid into a special fund and shall be expended solely for the maintenance, operation and support of such services and programs cover the total cost of the service or program.
Whenever any such special service is provided by one school, division or department of a state institution of higher education for the benefit of any other school, division or department in the same institution, the cost shall be paid by the school, division or department requesting the service and shall be deposited and expended as provided above. Whenever a motor pool is provided by the governing board of a state institution of higher education, such board may charge any school, college, department or division of such institution for which a vehicle is used a reasonable amount for such use, which amount shall be paid by such school, college, department or division and shall be deposited and expended as above provided.
CHAPTER 18C. STUDENT LOANS; SCHOLARSHIPS AND STATE AID.

ARTICLE 3. HEALTH PROFESSIONALS STUDENT LOAN PROGRAMS.

§18C-3-1. Health education loan program; establishment; administration; eligibility and loan cancellation; required report.

(a) Legislative findings. -- The Legislature finds that there is a critical need for additional practicing health care professionals in West Virginia. Therefore, there is hereby created a health education student loan program to be administered by the senior administrator of the higher education central office. The purpose of this program is to provide a loan for tuition and fees to students enrolled in health education programs at West Virginia institutions of higher education who intend to practice their profession in underserved areas in the state following completion of their studies. The loans are not to be awarded on the basis of the financial need of the student, rather the loans are to be awarded based on the need of the state to retain all levels of health professionals in all areas of the state and where possible to complement the rural health initiative established in article sixteen, chapter eighteen-b of this code.
(a) For the purposes of this section, vice chancellor of administration means the person employed pursuant to section two, article four, chapter eighteen-b of this code.
(b) Establishment of special account. - There is hereby established continued a special revolving fund account under the board of trustees commission in the state treasury to be known as the health education student loan fund which shall be used to carry out the purposes of this section. The fund shall consist consists of:
(1) All funds on deposit in the medical student loan fund in the state treasury on the effective date of this section, or which are due or become due for deposit in the fund as obligations made under the previous enactment of this section;
(2) thirty-three percent of the annual collections from the medical education fee established by section four, article ten, chapter eighteen-b of this code, or such other percentage as may be established by the board of trustees by legislative rule subject to approval of the Legislature pursuant to the provisions of article three-a, chapter twenty-nine-a of this code;
(2) Those funds provided pursuant to the provisions of section four, article ten, chapter eighteen-b of this code;
(3) Appropriations provided by the Legislature;
(4) penalties assessed to individuals for failure to perform under the terms of a loan contract as set forth under this section, and repayment of any loans which may be made from funds in excess of those needed for loans
(4) Repayment of any loans made under this section;
(5) Amounts provided by medical associations, hospitals, or other medical provider organizations in this state, or by political subdivisions of the state, under an agreement which requires the recipient to practice his or her health profession in this state or in the political subdivision providing the funds for a predetermined period of time and in such capacity as set forth in the agreement; and
(6) Other amounts which may be available from external sources.
Balances remaining in the fund at the end of the fiscal year shall do not expire or revert. All costs associated with the administration of administering this section shall be paid from the health education student loan fund.
(c) Eligibility and forgiveness requirements for health education student loan. -- An individual is eligible for a health education student loan if the individual: (1) Is enrolled or accepted for enrollment at the West Virginia university school of medicine, Marshall university school of medicine, the West Virginia school of osteopathic medicine in a program leading to the degree of medical doctor (M.D.) or doctor of osteopathy (D.O.): Provided, That the individual has not yet received one of these degrees and is not in default of any previous student loan; (2) meets the established academic standards; and (3) signs a contract to practice his or her health profession in an underserved area of the state: Provided, however, That for every year that an individual serves in an underserved area, ten thousand dollars of the loan granted to the individual will be forgiven.
Loans shall be awarded by the senior administrator, with the advice of the board of trustees, on a priority basis from the pool of all applications with the first priority being a commitment to serve in an underserved area of the state or in a medical specialty in which there is a shortage of practitioners in the state as determined by the state division of health at the time the loan is granted.
At the end of each fiscal year, any individual who has received a health education student loan shall submit to the board of trustees a notarized, sworn statement of service on a form provided for that purpose. Upon receipt of such statement in proper form and verification that the individual has complied with the terms under which the loan was granted, the board of trustees commission shall cancel up to ten thousand dollars of the outstanding loan for every full twelve consecutive calendar months of such service.
If an individual fails to submit the required statement of service, or submits a fraudulent statement, in addition to other penalties, the individual is in breach of contract resulting in a penalty of three times the amount of the outstanding balance of the loan granted.
A loan recipient who subsequently fails to meet the academic standards necessary for completion of the course of study under which the loan was granted or who fails to complete the course of study under which the original loan was granted is liable for repayment of the loan amount under the terms for the repayment of loans established by the board of trustees at the time the loan contract was executed.
(d) Loans granted under medical student loan program. -- Any student granted a medical student loan under the provisions of this section prior to the effective date of the amendment and reenactment of this section at the second extraordinary session of the Legislature in the year one thousand nine hundred ninety-one continues to be eligible for consideration for receipt of such a loan, and/or obligated to repay such loan, as the case may be, under the prior provisions. Thereafter, the senior administrator (c) The vice chancellor for administration may utilize any funds remaining in the health education student loan fund after all loan grants have been disposed of for the purposes of the medical student loan program. The commission shall give priority for the loans to residents of this state, as defined by the commission. An individual is eligible for loan consideration if the individual:
(1) Demonstrates financial need;
(2) Meets established academic standards; and
(3) Is enrolled or accepted for enrollment at one of the aforementioned schools of medicine in a program leading to the degree of medical doctor (M.D.) or doctor of osteopathy (D.O.); Provided, That
(4) The individual has not yet received one of these the degrees provided in subdivision (3) of this subsection; and
(5) Is not in default of any previous student loan. Provided, however, That the board of trustees shall give priority for the loans to residents of this state, as defined by the board of trustees.
(d) At the end of each fiscal year, any individual who has received a medical student loan and who has actually rendered services as a medical doctor or a doctor of osteopathy in this state in a medically underserved area or in a medical specialty in which there is a shortage of physicians, as determined by the division of health at the time the loan was granted, may submit to the board of trustees commission a notarized, sworn statement of service on a form provided for that purpose. Upon receipt of such statement in proper form and verification of services rendered, the board of trustees the statement the commission shall cancel five thousand dollars of the outstanding loan or loans for every full twelve consecutive calendar months of such service.
(e) Report by senior administrator. -- No later than thirty days following the end of each fiscal year, the senior administrator vice chancellor for administration shall prepare and submit a report to the board of trustees commission for inclusion in the statewide report card required under section six eight, article two one-b, chapter eighteen-b of this code to be submitted to the legislative oversight commission on education accountability established under section eleven, article three-a, chapter twenty-nine-a of this code. At a minimum, the report of the senior administrator shall include at a minimum the following information:
(1) The number of loans awarded;
(2) The total amount of the loans awarded;
(3) The amount of any unexpended moneys in the fund; and
(4) The rate of default during the previous fiscal year on the repayment of previously awarded loans.
(f) Promulgation of rules. -- The secretary of the department of education and the arts shall promulgate rules necessary for the operation of this section."
On motion of Delegate Beach, the Committee amendment was amended on page sixty- three, line ten, preceding section §18C-3-1, by inserting a new section §18B-14-12, to read as follows:
"ARTICLE 14. MISCELLANEOUS.
§18B-14-12. Authority of West Virginia university to operate the West Virginia network for educational telecomputing.

The operation of the West Virginia network for educational telecomputing (WVNET) is transferred from the commission to West Virginia university. All employees, real and personal property, equipment, funding, employees, contracts, agreements, obligations and orders of the commission regarding WVNET are transferred to the university.

West Virginia university shall continue a computer advisory board which is representative of higher education and other WVNET users as the president of the institution considers appropriate. It is the responsibility of the computer advisory board to recommend to the president policies for a statewide shared computer system and network."

And,

By amending the enacting section to read as follows:

"That §18B-10-3, §18B-10-4a and §18B-10-10 of the code of West Virginia, 1931, as amended, be repealed; that §18B-4-7 be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-4-9; that §18B-5-4 be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-9-2a; that §18B-10-1, §18B-10-2, §18B-10-4, §18B-10-4b, §18B-10-5, §18B-10-6, §18B-10-7, §18B-10-7a, §18B-10-8, §18B-10-9, §18B-10-11, §18B-10-12, §18B-10-13, §18B-10-14 and §18B-10-15 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §18B-10-1b; that said code be amended by adding thereto a new section, designated §18B-14-12; that §18C-3-1 of said code be amended and reenacted, all to read as follows" followed by a colon.

The question now before the House being on the adoption of the Committee amendment, as amended, the same was put and prevailed.

Delegate Frich requested that the Journal record her as voting "Yea" on the amendment to the Committee amendment offered by Delegate Beach.

The bill was then ordered to third reading.
Com. Sub. for S. B. 197, Relating generally to distribution of net terminal income of racetrack video lottery terminals; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of bills on second reading.
Com. Sub. for S. B. 271, Relating to racial profiling data collection; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, after the enacting section, by striking out the remainder of the bill, 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 decent 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 corrections, 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."

The bill was then ordered to third reading.
S. B. 316, Providing procedures for determining daily cost for certain inmates; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 319, Relating to centers for housing young adult offenders; on second reading, coming up in regular order, was read a second time and ordered to third reading.

S. B. 327, Authorizing department of administration to promulgate legislative rules; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of bills on second reading.

Com. Sub. for S. B. 350, Authorizing bureau of commerce to promulgate legislative rules; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of bills on second reading.

Com. Sub. for S. B. 399, Authorizing miscellaneous boards and agencies to promulgate legislative rules; on third reading, coming up in regular order, was reported by the Clerk and, at the request of Delegate Staton, and by unanimous consent, laid at the foot of bills on second reading.
Com. Sub. for S. B. 456, Requiring state agencies administering funds or grants notify grantee in certain cases; on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 508, Relating to commission on arts; on second reading, coming up in regular order, was read a second time.

An amendment, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the bill on page two, section three, line twelve, following the word "four" and the comma, by striking out the words "no more than five voting members may be from the same congressional district" and the period and inserting in lieu thereof the following "no more than 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" and a period.

On motion of Delegates Michael, Campbell, Palumbo, Shaver and G. White, the bill was amended on page five, section three, line seventy-one, following the word "improvements", by inserting the following: "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 following the word "Provided" and the comma, by inserting the word "however" and a comma.

The bill was then ordered to third reading.
S. B. 512, Authorizing rules of higher education policy commission; on second reading, coming up in regular order, was read a second time and ordered to third reading.
S. B. 526, Making supplementary appropriation of public moneys from unappropriated surplus balance in general revenue to division of rehabilitation services; on second reading, coming up in regular order, was read a second time and ordered to third reading.


Miscellaneous Business


Delegate Ferrell announced that he was absent when the votes were taken on Roll Nos. 518 through 563, and that had he been present, he would have voted "Yea" thereon.

Delegate Schadler announced that he was absent when the vote was taken on Roll No. 572, and that had he been present, he would have voted "Nay" thereon.

Delegate Staton asked and obtained unanimous consent that the remarks of Delegate Wakim regarding H. B. 4759 be printed in the Appendix to the Journal.

At 11:57 a.m., on motion of Delegate Staton, the House of Delegates recessed until 4:30 p.m., and reconvened at that time.