sdj-50th day

WEST VIRGINIA LEGISLATURE
SENATE JOURNAL
SEVENTY-EIGHTH LEGISLATURE
REGULAR SESSION, 2008
FIFTIETH DAY
____________

Charleston, W. Va., Wednesday, February 27, 2008

The Senate met at 11 a.m.
(Senator Tomblin, Mr. President, in the Chair.)
Prayer was offered by the Reverend Richard G. Mahan, St. Timothy Lutheran Church, Charleston, West Virginia.
Pending the reading of the Journal of Tuesday, February 26, 2008,
On motion of Senator Love, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 3201--A Bill to amend and reenact §11-12-5 of the Code of West Virginia, 1931, as amended, relating to authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations; and defining alter ego.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 3204--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated section §7-1-3oo, relating to authorizing a county to hire a blasting enforcement officer.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2008, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4022--A Bill to amend and reenact §29-21-13a of said code, relating to compensation and expenses of panel attorneys providing public defender services.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4037--A Bill to amend and reenact §11-21-12 of the Code of West Virginia, 1931, as amended, relating to reducing state income tax liability for certain retired public employees; increasing the amount of retirement income received from certain state and federal retirement systems that is excluded from the calculation of income subject to state personal income taxes; and establishing an effective date for the increased exclusion.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4041--A Bill to amend and reenact §11-13A-3d and §11-13A-20a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §11-13V-4a; and to amend and reenact §31-15A-16 of said code, all relating to equalization of natural gas and coalbed methane taxation; terminating the severance and business privilege tax exemption for production of coalbed methane with certain limited exceptions; specifying that coalbed methane is taxed as natural gas for purposes of the Severance and Business Privilege Tax Act and the Workers' Compensation Debt Reduction Act with limited exceptions; authorizing Tax Commissioner to promulgate rules; requiring portion of tax be used for infrastructure projects; providing that seventy-five percent of dedicated funds be used in counties producing coalbed methane; providing that remaining twenty-five percent of dedicated funds be shared equally by counties not producing coalbed methane; and providing effective dates.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4076--A Bill to amend and reenact §4-2A-2, §4-2A-4 §4-2A-6 and §4-2A-8 of the Code of West Virginia, 1931, as amended; and to amend and reenact §5-5-2 of said code, all relating to providing employment benefits to public officials generally; increasing basic compensation and per diem expense allowance for members of the Legislature; increasing certain additional compensations for certain members of the Legislature; and increasing the annual incremental salary increase for certain eligible employees of the state.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4094--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §6C-4-1, §6C-4-2 and §6C-4-3, all relating to reimbursement of compensation paid to certain state employees for training, education and professional development; and requiring division of personnel propose rules for legislative approval.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2008, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4117--A Bill to amend and reenact §18A-4-2b of the Code of West Virginia, 1931, as amended, relating to providing the state minimum salary supplement and the reimbursement of educational expenses to school psychologists and school nurses for achieving certain national certifications; increasing the number of certificate holders who are eligible for the supplements and reimbursements each year; and requiring State Board of Education rule.
Referred to the Committee on Education; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4134--A Bill to amend and reenact §16-9A-8 of the Code of West Virginia, 1931, as amended, relating to prohibiting the sale of less than twenty packaged cigarettes; requiring warnings on cigarette packages; and providing misdemeanor penalty.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4144--A Bill to amend and reenact §30-3-16 of the Code of West Virginia, 1931, as amended, relating to physician assistants; updating language to conform to national changes; requiring supervising physicians to be fully licensed without restriction or limitation; permitting graduates of an approved program who have passed the national certifying examination for physician assistants to obtain temporary licenses; requiring a physician assistant who fails a recertifying examination to immediately notify the supervising physician and the board of Medicine and immediately cease practice and requiring automatic license expiration until passage of the examination; raising fees and adding fees for temporary license and prescriptive writing privileges.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4148--A Bill to amend and reenact §44-10-14 of the Code of West Virginia, 1931, as amended, relating to infant settlement proceedings; allowing courts to authorize the placement of infant settlement proceeds into any product that guarantees future periodic payments when the net settlement proceeds are less than twenty-five thousand dollars.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4255--A Bill to amend and reenact article 10, chapter 64 of the Code of West Virginia, 1931, as amended, all relating generally to the promulgation of administrative rules by the Department of Commerce and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; relating to authorizing the Division of Labor to promulgate a legislative rule relating to steam boiler inspection; authorizing the Division of Labor to promulgate a legislative rule relating to verifying the legal employment status of workers; authorizing the Division of Labor to promulgate a legislative rule relating to the supervision of plumbing work; authorizing the Office of Miners' Health, Safety and Training to promulgate a legislative rule relating to the criteria and standards for alternative training programs for apprentice coal mine electricians; authorizing the Division of Natural Resources to promulgate a legislative rule relating to commercial whitewater outfitters; authorizing the Division of Natural Resources to promulgate a legislative rule relating to the revocation of hunting and fishing licenses; authorizing the Division of Natural Resources to promulgate a legislative rule relating to special boating rules; authorizing the Division of Natural Resources to promulgate a legislative rule relating to conditions upon which oil and gas operators may access state forests; and authorizing the Division of Natural Resources to promulgate a legislative rule relating to wildlife scientific collection permits.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4290--A Bill to amend and reenact §12-3A-2 and §12-3A-3 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §12-3A-7, all relating to electronic commerce; granting the Auditor and Treasurer the discretion to require certain electronic filing, with waivers and exceptions; and authorizing the use of electronic commerce in the sale or disposal of property.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4296--A Bill to amend and reenact §53-4A-7 of the Code of West Virginia, 1931, as amended, relating to the rights of crime victims; requiring prosecutors to provide crime victims with notice of proceedings conducted in response to a post-conviction writ of habeas corpus; insuring that crime victims' rights of notice and participation have been afforded in conjunction with orders issued and proceedings directed as a part of any relief granted in response to a writ of habeas corpus; and requiring notice to the affected victim when petitioner is released as a result of an order of the court entered as a part of the relief granted by a post-conviction habeas petition, when otherwise required by law.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4364--A Bill to amend and reenact §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7 and §17A-6-15 of the Code of West Virginia, 1931, as amended; and to amend and reenact §17A-6E-2 of said code, all relating to motor vehicle dealers generally; allowing the Commissioner of the Division of Motor Vehicles to enter into agreements with other states to allow out-of-state dealers to issue vehicle registrations; expanding authority of dealer recovery fund control board to consider claims against the fund; increasing minimum bond requirement for certain dealers from ten thousand dollars to twenty-five thousand dollars; establishing minimum number of sales by a dealer prior to renewal of a dealer's license and opportunity for appeal; exempting salespersons employed by dealers selling commercial vehicles, financial institutions and auctions from the requirement to obtain a salesperson license; requirements for issuing temporary registration plates; and authorizing the commissioner to require participation in an electronic temporary plates or markers program as a precondition for issuance of temporary plates.
At the request of Senator Chafin, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4383--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §29-3-32, relating to awarding service revolver upon retirement to a state fire marshal, a deputy fire marshal or an assistant fire marshal.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4386--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §8-12-16a, relating to authorizing municipalities to create an annual vacant property registration; limiting the authority to class I and II municipalities; providing for registration fees; providing for appeals; and providing penalties.
Referred to the Committee on Government Organization.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4394--A Bill to amend and reenact §21-9-2 of the Code of West Virginia, 1931, as amended, relating to the restoration of the licensure exemption for certain contractors of manufactured housing installation.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4396--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-29-3, relating to retention and destruction of health care records by physicians, osteopaths and dentists.
Referred to the Committee on Health and Human Resources; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2008, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4406--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated section §18-2E-5d; and to amend and reenact §18-9D-2 and §18-9D-16 of said code, all relating to state board standards for the recommended duration of school bus transportation times for students to and from school; limiting county board authority to establish new routes for certain students to certain schools unless certain requirements met; providing for state board to permit new routes in excess of limit up to certain limit; requiring state board to provide certain technical assistance; requiring countywide comprehensive facilities plans required by School Building Authority to address providing facility infrastructure that avoids excessive transportation times; requiring guidelines for update of transportation times in approved facilities plans; prohibiting project approval by authority when transportation route times for certain students exceed limits unless state board permission is granted.
Referred to the Committee on Education; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4418--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §16-5B-17, relating to healthcare-associated infection reporting; establishing an advisory panel; establishing panel responsibilities; establishing limitations on use of information; establishing that all hospitals shall report; establishing that the Health Care Authority will make the data available to the public and to Bureau of Public Health; providing an implementation date for hospital reporting; and penalties.
Referred to the Committee on Health and Human Resources; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4421--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-12C-13; to amend and reenact §31B-1-108 of said code; to amend and reenact §59-1-2 of said code; and to amend said code by adding thereto a new section, designated §59-1-2a, all relating to the repeal of the corporate license tax; creating an annual report fee; requiring the filing of an annual report with fee payment with the Secretary of State; creating a special revenue account; providing purposes for the expenditure of certain fee collections; legislative rules; and administrative and criminal penalties.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4438--A Bill to amend and reenact §22-5-1, §22-5-11 and §22-5-14 of the Code of West Virginia, 1931, as amended; and to amend said code by adding thereto a new section, designated §22-5-11a, all relating to air pollution control; allowing for the expedited review of complete permit applications for sources other than major sources; allowing all facilities with complete applications for permission to commence construction and which have received written permission from the secretary to construct an altered or expanded source provided that operations of the altered or expanded source do not commence until its permit or permit modification is issued; setting timelines for permitting actions; making other clarifications of the secretary's duties in minor source air permitting; requiring the promulgation of legislative rules; and requiring a legislative report.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4471--A Bill to amend and reenact §15-2A-5, §15-2A-6 and §15-2A-9 of the Code of West Virginia, 1931, as amended, all relating to the West Virginia State Police Retirement System; increasing the member and state contributions to the system for a ten year period; and reducing the normal retirement age for member.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4472--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §18A-4-21, relating to school personnel; and providing that a board of education must wait ten days before posting a new job opening following the death of an employee.
Referred to the Committee on Education.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2008, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4477--A Bill to amend and reenact §18-5- 19c of the Code of West Virginia, 1931, as amended, relating to the technical and adult education services; providing legislative findings; requiring the State Board to develop a program for the payment of General Educational Development exam fees for certain individuals; requiring rulemaking; and requiring certain eligibility requirements.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4484--A Bill to amend and reenact §61-2-9a of the Code of West Virginia, 1931, as amended, all relating to the criminal offense of stalking, including penalties.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4507--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §15-1I-1, §15-1I-2, §15-1I-3, §15-1I-4 and §15-1I-5, all relating to the West Virginia Military Authority Act; authorizing the Authority to administer programs and receive funds; and giving the Authority certain powers and duties.
Referred to the Committee on Military.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4511--A Bill to amend and reenact §8A-7-7, §8A-7-8 and §8A-7-13 of the Code of West Virginia, 1931, as amended, all relating to zoning ordinance adoption by election or otherwise; reducing the threshold for triggering a zoning ordinance election by petition; setting forth procedures for amending a zoning ordinance; amending notice requirements; setting forth petition requirements; requiring specific notice requirements to affected owners of affected parcels when a proposed zoning ordinance modification would change the zoning classification of a parcel of land; clarifying the relevant notice and adoption procedures as they pertain to adoption or modification of a nontraditional zoning ordinance.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4527--A Bill to amend and reenact §8A-4-1 and §8A-4-2 of the Code of West Virginia, 1931, as amended, all relating to allowing county commissions to regulate subdivisions and land development without adopting a comprehensive plan.
Referred to the Committee on Government Organization; and then to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect from passage, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4554--A Bill to amend and reenact §18A-4-8e of the Code of West Virginia, 1931, as amended, relating to competency testing for service personnel; and establishing the testing schedule for school bus operators.
Referred to the Committee on Education.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4567--A Bill to amend and reenact §20-5-16 of the Code of West Virginia, 1931, as amended, relating to allowing the Director of the Division of Natural Resources to enter into contracts granting long-term usage and related rights and privileges to third parties sufficient to attract private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park; and directing the Director of the Division of Natural Resources to file emergency and legislative rules governing any such long-term usage contracts and related rights and privileges.
Referred to the Committee on Natural Resources; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect July 1, 2008, and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4588--A Bill to repeal §18-9A-5a, §18-9A-5b, §18-9A-10a and §18-9A-22 of the Code of West Virginia, 1931, as amended; to amend and reenact §18-1-1 of said code; to amend and reenact §18-9A-2, §18-9A-3a, §18-9A-4, §18-9A-5, §18-9A-6, §18-9A-7, §18-9A-8, §18-9A-9, §18-9A-10 and §18-9A-21 of said code; and to amend and reenact §18-20-5 of said code all relating to public school support; defining terms; eliminating adjusted enrollment and certain waiver provisions; eliminating obsolete provisions; providing alternate computation of county and total basic foundation program funding for certain years; limiting basis of foundation allowances for personnel to ceratin ratios of net student enrollment instead of adjusted enrollment; establishing different net enrollment limits on the basis of differences in students per square mile and expiring existing ratios and funding provisions; providing for certain adjustments to net enrollment for allowances in low enrollment counties; establishing minimum ratios of professional instructional personnel per students in net enrollment; establishing student density categories for determining allowance for transportation; modifying incentive for alternative fuel use and allowance for transporting students to certain multi- county centers; removing obsolete provisions for certain competitive bidding; deleting allowance for administrative costs; providing foundation allowance for professional student support personnel, including fixed charges; revising calculation of allowance for current expense; including professional student support personnel costs in determining professional substitute allowance; placing funding supplement for advanced placement and dual credit enrollment in allowance to improve instructional programs; repealing provisions for certain additional nursing positions; providing enrollment basis for alternative program funding and adding prevention programs; expiring certain provisions for funding for economies of scale in certain counties; requiring annual review and report by state superintendent on exceptional student services and accounting of services and costs; and authorizing appropriation for distribution upon application to support exceptional student services that exceed county capacity from funds available.
Referred to the Committee on Education; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4607--A Bill to amend and reenact §7-22-12 of the Code of West Virginia, 1931, as amended; to amend and reenact §8-13B-11 of said code; and to amend and reenact §8-38-12 of said code, all relating to special district excise taxes authorized for counties and municipalities; clarifying the rates of the tax; authorizing the Tax Commissioner to require the electronic filing of returns and electronic payment of the tax; and providing for the sharing of tax information and confidentiality of such information.
Referred to the Committee on Economic Development; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4608--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5A-1-12, relating to a study and investigation by the Department of Administration on the feasibility, implementation, effects and related issues in connection with creating a pilot program for child day centers operated by the State; and requiring that the Department of Administration report on same to the Joint Committee on Government and Finance prior to the first day of January, two thousand nine.
Referred to the Committee on Health and Human Resources; and then to the Committee on Rules.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4611--A Bill to amend and reenact §24-3-3b of the Code of West Virginia, 1931, as amended, relating to railroad safety; requiring the public service commission to undertake additional rulemaking pertaining the safety requirements for railway walkways.
Referred to the Committee on the Judiciary; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4616--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §5-16-28, relating to development of pilot programs by the Director of the Public Employees Insurance Agency.
Referred to the Committee on Government Organization; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4619--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §48-5A-101, §48-5A-102, §48-5A-103, §48-5A-104, §48-5A-105, §48-5A-106, §48-5A-107, §48-5A-108, §48-5A-109, §48-5A-110, §48-5A-111, §48-5A-112, §48-5A-113, §48-5A-114, §48-5A-115, §48-5A-116 and §48-5A-117, all relating to conducting certain family law proceedings under collaborative law procedures.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4623--A Bill to amend and reenact §18-23- 4a of the Code of West Virginia, 1931, as amended, relating to establishing minimum deductions; and allowing governing boards to increase their contributions to employee retirement plans to one that exceeds the contributions of employees.
Referred to the Committee on Education; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4624--A Bill to amend and reenact §9A-1-5 of the Code of West Virginia, 1931, as amended, relating to providing an expense per diem for volunteers who drive veterans to hospitals.
Referred to the Committee on Military; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body, to take effect January 1, 2009, and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4628--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §11-13Q-22, relating to providing a tax credit for new job creation by certain taxpayers.
At the request of Senator Chafin, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. Com. Sub. for House Bill No. 4637--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C-7, §31-15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12 and §31-15C-13, all relating to the deployment of broadband to the remaining unserved areas of the state; setting forth legislative findings and purpose; providing definitions; establishing the Broadband Deployment Council and its powers, duties and responsibilities; creating the Broadband Development Fund; categorizing areas of the state according to broadband access; authorizing retention of outside expert consultant to assist in categorization and other functions; providing for stimulation of demand through public outreach and education; providing funding guidelines; authorizing emergency rule-making authority; establishing project requirements and applications; requiring public notice; limiting liability; protecting confidentiality of trade secrets and proprietary business information; providing criminal penalties; and providing for expiration of the council.
Referred to the Committee on Transportation and Infrastructure; and then to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4644--A Bill to amend and reenact §62-1C-7 of the Code of West Virginia, 1931, as amended, relating to removing the provision allowing a bail posted by someone other than the person under bail to be forfeited for failure to comply with a condition of bail, other than that to appear.
Referred to the Committee on the Judiciary.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4670--A Bill to amend and reenact §5-16-18 of the Code of West Virginia, 1931, as amended, relating to authorizing the Public Employees Insurance Agency to charge interest to employers on amounts not paid timely.
Referred to the Committee on Finance.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4676--A Bill to amend and reenact §11B-2- 15 of the Code of West Virginia, 1931, as amended, relating to continuing the permissible annual appropriation of Public Employees Insurance Reserve Fund moneys for the bureau for medical services of the Department of Health and Human Resources.
At the request of Senator Chafin, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
A message from The Clerk of the House of Delegates announced the passage by that body and requested the concurrence of the Senate in the passage of
Eng. House Bill No. 4677--A Bill to amend and reenact §29-6-7 of the Code of West Virginia, 1931, as amended, relating to reducing the requirement that the Director of Personnel must have five years experience in personnel management in order to better the state's recruitment abilities for the position.
At the request of Senator Chafin, and by unanimous consent, reference of the bill to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
The Senate proceeded to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 161 (originating in the Committee on Education), Relating to payment of certain GED fees.
And reports back a committee substitute for same with the following title:
Com. Sub. for Com. Sub. for Senate Bill No. 161 (originating in the Committee on Finance)--A Bill to amend and reenact §18-5-19c of the Code of West Virginia, 1931, as amended, relating to Division of Technical and Adult Education Services; programs; legislative findings; providing payment of general educational development exam fees for certain individuals; eligibility requirements; and requiring State Board of Education rule.
With the recommendation that the committee substitute for committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 161) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Com. Sub. for Senate Bill No. 505 (originating in the Committee on Military), Creating Veterans Cemetery Fund from lottery proceeds.
And reports back a committee substitute for same with the following title:
Com. Sub. for Com. Sub. for Senate Bill No. 505 (originating in the Committee on Finance)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §9A-1-11a; and to amend and reenact §29-22-9a of said code, all relating to creating the Veterans Cemetery Fund for the construction and operation of veterans' cemeteries; and authorizing the appropriation of proceeds from the veterans instant lottery scratch-off game to the fund.
With the recommendation that the committee substitute for committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for Com. Sub. for S. B. No. 505) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 505 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Bowman--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 505) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Bowman--1.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 505) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Unger, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Bill No. 597, Creating Sesquicentennial Committee, Fund and license plate.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 597 (originating in the Committee on Transportation and Infrastructure)--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §4-13-1, §4-13-2, §4-13-3, §4-13-4, §4-13- 5, §4-13-6 and §4-13-7, all relating to establishing the West Virginia Sesquicentennial Committee and Fund; membership; meetings; compensation; powers and duties of the committee; and continuation of the committee.
And,
Senate Bill No. 658, Relating to Stop Domestic Violence license plate.
Com. Sub. for Senate Bill No. 658 (originating in the Committee on Transportation and Infrastructure)--A Bill to amend and reenact §17A-3-14 of the Code of West Virginia, 1931, as amended, relating to authorizing the Division of Motor Vehicles to create and issue a "Stop Domestic Violence" license plate, a West Virginia sesquicentennial license plate and an "In God We Trust" license plate for passenger vehicles and motorcycles.
With the recommendation that the two committee substitutes do pass; but under the original double committee references first be referred to the Committee on Finance.
Respectfully submitted,
John R. Unger II,
Chair.
The bills (Com. Sub. for S. B. Nos. 597 and 658), under the original double committee references, were then referred to the Committee on Finance.
Senator Fanning, from the Committee on Natural Resources, submitted the following report, which was received:
Your Committee on Natural Resources has had under consideration
Senate Bill No. 652, Relating to private investments for Stonewall Jackson Lake State Park.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 652 (originating in the Committee on Natural Resources)--A Bill to amend and reenact §20-5-16 of the Code of West Virginia, 1931, as amended, relating to allowing the Director of the Division of Natural Resources to enter into contracts granting long-term usage and related rights and privileges to third parties sufficient to attract private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park; and establishing requirements and restrictions regarding the development, operation and maintenance of additional lodging units and all contracts related to the development, operation and maintenance of additional lodging units.
With the recommendation that the committee substitute do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
John Pat Fanning,
Chair.
The bill (Com. Sub. for S. B. No. 652), under the original double committee reference, was then referred to the Committee on Finance.
Senator Kessler, 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 Senate Bill No. 712, Authorizing Coalbed Methane Review Board to propose legislative rules.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on February 20, 2008;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 712) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Committee Substitute for Senate Bill No. 712 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 712) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 715, Defining certain Public Employees Insurance Agency eligibility.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 715 (originating in the Committee on Finance)--A Bill to amend and reenact §5-16-2 of the Code of West Virginia, 1931, as amended, relating to the participation in the Public Employees Insurance Agency of certain retired employees; mandatory participation in Retiree Health Benefit Trust Fund; requiring written certification from nonstate employers who opt out of the other post-employment benefits plan of the fund; and providing that agency is not liable to provide benefit where employer opted out.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 715) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 715 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 715) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 715) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 736, Clarifying guardian ad litem and conservator responsibilities.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 736 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §37-1-3 of the Code of West Virginia, 1931, as amended; to amend and reenact §44A-1-8 of said code; and to amend and reenact §44A-3-5 of said code, all relating generally to persons under legal disability, including protected persons; clarifying the sale of real estate for persons under legal disability, including protected persons; clarifying when a conservator appointment is exempted; and making technical corrections.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 736) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 736 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 736) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the sixth order of business.
Senator Caruth offered the following resolution:
Senate Concurrent Resolution No. 61--Requesting the Joint Committee on Government and Finance study the effects of taxation upon energy sources used for heating homes of fixed income citizens in West Virginia.
Whereas, West Virginia has an aging population and has the oldest per capita age in the country; and
Whereas, If current trends continue, 25 percent of all West Virginians will be over the age of 65 within the next 15 years; and
Whereas, When people retire their primary source on income is a pension, social security and other fixed income sources; and
Whereas, The cost of energy sources for home heating is expected to continually rise at a rate higher than other goods and services; and
Whereas, An aging population that relies upon fixed income sources will likely be inordinately impacted by those rising fuel costs; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the effects of taxation upon energy sources used for heating homes of fixed income citizens in West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2009, 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.
Which, under the rules, lies over one day.
Senators Chafin and Fanning offered the following resolution:
Senate Concurrent Resolution No. 62--Requesting the Division of Highways name bridge number 30-119-11.68 (2892) on Route 119 south of Belo, Mingo county, the "BMC Howard W. Bannister Memorial Bridge".
Whereas, Chief Boson's Mate Howard W. Bannister was born on July 6, 1929 in Holden, Logan County, West Virginia to Herbert and Beula Pack Bannister; and
Whereas, Chief Howard W. Bannister made a career with the United States Navy, having served on active duty for more than eighteen years, rising to the rank of Chief Boson's Mate; and
Whereas, Chief Howard W. Bannister was serving on a river assault craft as a member of an elite Navy SEAL Team in Long An, South Vietnam; and
Whereas, Chief Howard W. Bannister and his team were on a covert operation when they took a hit from an enemy round on July 11, 1967, which ended his life; and
Whereas, Chief Howard W. Bannister received the Purple Heart and other service decorations; and
Whereas, Chief Howard W. Bannister left a wife, Alice Bannister and children; and
Whereas, Having given the ultimate sacrifice for his country, his state and fellow man we are compelled to ensure that future generations are aware of Chief Howard W. Bannister's commitment to the cause of freedom; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 30-119-11.68 (2892) on Route 119 south of Belo, Mingo County, the "BMC Howard W. Bannister Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "BMC Howard W. Bannister Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Chief Howard W. Bannister's widow, Alice Bannister Cline, and the Secretary of the Department of Transportation.
Which, under the rules, lies over one day.
Senators Chafin and Fanning offered the following resolution:
Senate Concurrent Resolution No. 63--Requesting the Division of Highways name bridge number 2796 which crosses Trace Creek on Corridor G north of Belo, Mingo County, the "R3C Fred Mahon Memorial Bridge".
Whereas, Radioman 3rd Class Fred Mahon was born in Mingo County, West Virginia, the son of Rush Mahon. He enlisted in the United States Navy and was serving on board ship that was sunk by enemy fire. The remains of Radioman 3rd Class Fred Mahon were never recovered and he was declared dead by the Navy; and
Whereas, Radioman 3rd Class Fred Mahon left his father and other family members. The VFW Post 8001 in Delbarton, West Virginia, was named the Fred Mahon VFW Post 8001 in his honor; and
Whereas, Radioman 3rd Class Fred Mahon made the ultimate sacrifice for his country and in the cause of freedom and it is fitting and proper that this bridge be named in his honor as a small token of appreciation and gratitude for the sacrifice Fred Mahon made; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 2796 which crosses Trace Creek on Corridor G north of Belo, Mingo County, the "R3C Fred Mahon Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "R3C Fred Mahon Memorial Bridge"; 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 Department of Transportation and to the family of Radioman 3rd Class Fred Mahon.
Which, under the rules, lies over one day.
Senator Jenkins offered the following resolution:
Senate Resolution No. 25--Urging the United States Congress provide reauthorization for the Debbie Smith DNA Backlog Grant Program.
Whereas, DNA technology is increasingly vital to ensuring accuracy and fairness in the criminal justice system, but is not yet considered a routine tool for criminal identification by law enforcement. Over 50,000 law-enforcement investigations have already been aided nationwide because of DNA matches made through the FBI's Combined DNA Index System (CODIS), bringing justice to victims and removing criminals from the streets. The Innocence Project has used DNA in over 200 cases to exonerate persons who were wrongfully convicted of crimes; and
Whereas, The State of West Virginia and other states throughout the nation have significantly expanded their DNA programs to include a growing number of convicted or arrested and convicted felons to match against unsolved crimes. The demand for DNA testing in both violent and nonviolent crimes has continued to increase as the reliability of this evidence is proven. Many laboratories still maintain DNA backlogs of six months or longer and are unable to meet the growing demand for DNA testing despite funding commitments from state and local governments; and
Whereas, The Debbie Smith DNA Backlog Grant Program has permitted state and local governments an opportunity to begin to maximize the full potential of forensic DNA through backlog reduction, but much work remains to be done; therefore, be it
Resolved by the Senate:
That the Senate hereby urges the United States Congress to reauthorize the Debbie Smith DNA Backlog Grant Program; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the presiding officer of each chamber of Congress and to each member of West Virginia's congressional delegation.
Which, under the rules, lies over one day.
Senators Tomblin (Mr. President), Boley, Deem, Bailey, Barnes, Bowman, Caruth, Chafin, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sharpe, Sprouse, Stollings, Sypolt, Unger, Wells, White and Yoder offered the following resolution:
Senate Resolution No. 26--Memorializing the life of Robert James Gould, former Senate employee, political activist and dedicated West Virginian.
Whereas, Robert James Gould was born March 2, 1958, in Brooklyn, New York, son of Virginia and Seymour Gould; and
Whereas, Robert James Gould was a graduate of Farleigh Dickenson University and Syracuse School of Law, and was a practicing attorney and the chairman of Cambridge Associates Ltd. in Charleston; and
Whereas, Robert James Gould served the West Virginia Senate as minority counsel during the 71st and 72nd Legislatures; and
Whereas, Robert James Gould was heavily involved in various economic development projects throughout West Virginia in an attempt to better the quality of life for its citizens; and
Whereas, Robert James Gould made his home in West Virginia for more than two decades where he was highly active in politics on both the federal and state level and was a respected participant in all aspects of the legislative process; and
Whereas, Robert James Gould was married to his beloved wife Denise, with whom he shared the joy of having their children Laura, Emily and Jay; and
Whereas, Sadly, Robert James Gould passed away Saturday, August 11, 2007, after a courageous battle with cancer, bringing an end to a productive life of dedication to his family, community, state and country; therefore, be it
Resolved by the Senate:
That the Senate hereby memorializes the life of James Robert Gould, former Senate employee, political activist and dedicated West Virginian; and, be it
Further Resolved, That the Senate extends its sincere sympathy at the passing of James Robert Gould; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of Robert James Gould.
At the request of Senator Boley, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Bailey, and by unanimous consent, the remarks by Senators Boley, Chafin, Helmick and Plymale were ordered printed in the Appendix to the Journal.
At the request of Senator Hunter, unanimous consent being granted, the remarks by Senators McCabe, Sprouse, Unger, Oliverio and Bailey were ordered printed in the Appendix to the Journal.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and resumed business under the sixth order.
Senators Minard, McCabe, Unger, Plymale, Jenkins and Oliverio offered the following resolution:
Senate Resolution No. 27--Designating February 27, 2008, as "West Virginia Home School Day".
Whereas, The State of West Virginia is committed to excellence in education; and
Whereas, The State of West Virginia recognizes that parental involvement and individualized attention to educational success are unique and basic components of home schooling; and
Whereas, Home-schooled students exhibit self-confidence and good citizenship and are prepared academically to meet the challenges of today's society; and
Whereas, Contemporary studies continue to confirm that children who are educated at home score exceptionally well on national achievement tests and score above the national average on SAT and ACT tests; and
Whereas, Home-schooled students have shown to be competitive with publicly and privately schooled students at the college level; therefore, be it
Resolved by the Senate:
That the Senate hereby designates February 27, 2008, as "West Virginia Home School Day"; and, be it
Further Resolved, That the Senate recognizes students, teachers and families involved with home schooling in West Virginia for their dedication to excellence in education; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the West Virginia Home Educators Association and the Christian Home Educators of West Virginia.
At the request of Senator Chafin, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
On motion of Senator Chafin, the Senate recessed for one minute.
Upon expiration of the recess, the Senate reconvened and, at the request of Senator Chafin, and by unanimous consent, returned to the fourth order of business.
Senator Plymale, from the Committee on Education, submitted the following report, which was received:
Your Committee on Education has had under consideration
Senate Concurrent Resolution No. 64 (originating in the Committee on Education)--Commending and supporting the Consortium for Internationalizing Higher Education in West Virginia and institutions of public and post-secondary education.
Whereas, International education is a crucial component of higher education in West Virginia which contributes to the economy of the State and to a diverse education environment and enhances both academic and co-curricular programs; and
Whereas, The economy of West Virginia is inextricably tied to the rest of the world and economic development depends upon a deliberate strategic development plan that includes recognition of the role of international education in all its facets. Tourism and foreign trade are key sectors for strengthening West Virginia's economic future and it is critical that this state promote mutual understanding between West Virginians and citizens of other countries through international education programs at its colleges and universities; and
Whereas, The Legislature recognizes the need to increase access to study-abroad programs that served more than seven hundred West Virginia post-secondary students in 2006-07 as well as the economic significance of more than 2500 international students enrolled at West Virginia institutions of higher education who provide an economic gain estimated at over forty-six million dollars; and
Whereas, West Virginia has the lowest number per capita of foreign born citizens of any other state in the nation, education institutions in West Virginia must rise to the challenge of providing all students with the opportunity to acquire the inter- cultural skills to interact effectively within a global environment; and
Whereas, International education includes curricular offerings that teach foreign languages, address global issues, provide in- depth understanding of other cultures, utilizes citizens of other countries in formal and informal settings as teaching resources, and recognizes that the development of new knowledge, the best research and technological breakthroughs require international collaboration; and
Whereas, Promoting international education for West Virginia's students and citizens and ensuring access to internationalized curricula and co-curricula are important components of a program to promote students' global literacy, cross-cultural awareness and understanding, and to meet the global challenges facing the state and the nation, including our national security, foreign policy, economic competitiveness and capacity for tolerance; and
Whereas, The policies and programs initiated today to make the international experience integral to higher education determine if society will have a globally literate citizenry prepared to respond to the demands of the 21st century; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby commends and supports the Consortium for Internationalizing Higher Education in West Virginia and institutions of public and post-secondary education; and, be it
Further Resolved, That the Legislature recognizes and commends the Higher Education Policy Commission (HEPC) which established the Consortium in 2006 and which provides institutional development and award grants to state universities to help internationalize their majors, core curricula and foreign language programs to prepare West Virginia students better for global competency; and, be it
Further Resolved, That the Legislature also acknowledges contributions to the internationalization of higher education in West Virginia by the Governor's Commission on International Education for internationalizing education institutions at both the K-12 and higher education levels, and the State Board of Education which has become a national leader in the Partnership for 21st Century Skills, an initiative which has a strong global awareness component; and, be it
Further Resolved, That the Legislature recognizes the impact of West Virginia EPSCoR which makes International Innovation grant awards to promote international collaboration among scientific researchers; the Cyrus Vance Awards which continue to draw attention to the outstanding work done by many educators in every part of the state to promote international education; and the Faculty and Course Development in International Studies (FACDIS), an association of more than 375 faculty members specializing in international studies and foreign languages who represent more than fifteen different disciplines; and, be it
Further Resolved, That West Virginia's colleges and universities are commended for their work and are encouraged to develop courses of study in as many fields as possible to increase students' understanding of global issues and cultural differences and further to develop courses in foreign languages to prepare students to seek careers in a global marketplace and enhance their understanding of other nations' values; and, be it
Further Resolved, That colleges and universities are encouraged to provide opportunities for students in all majors to participate in programs to study abroad to enrich their academic training, inter-cultural perspectives and personal development; and, be it
Further Resolved, That colleges and universities provide opportunities for domestic and international students to interact effectively and routinely to share their views, perceptions and experiences and develop innovative public education forums and venues to explore global issues and showcase world cultures; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the Chancellor of the West Virginia Higher Education Policy Commission, the Chancellor of the West Virginia Council for Community and Technical College Education, the President of the West Virginia Independent Colleges and Universities, Inc., and to the president of each of West Virginia's independent and public colleges and universities.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Robert H. Plymale,
Chair.
Pending announcement of a meeting of a standing committee of the Senate,
On motion of Senator Chafin, the Senate recessed until 1:30 p.m. today.
Upon expiration of the recess, the Senate reconvened.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had removed from the Senate third reading calendar, Engrossed Committee Substitute for Senate Bill No. 248 and Engrossed Committee Substitute for Senate Bill No. 758.
Senator Chafin also announced that in the same meeting, the Committee on Rules had returned to the Senate calendar, on third reading, Engrossed Committee Substitute for Senate Bill No. 239 , under rule number seventeen of the Rules of the Senate.
The Senate proceeded to the seventh order of business.
Senate Concurrent Resolution No. 59, Requesting Joint Committee on Government and Finance study simplified tax structure for communications.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Finance; and then to the Committee on Rules.
Senate Concurrent Resolution No. 60, Requesting Joint Committee on Government and Finance study armed forces retirement service credit.
On unfinished business, coming up in regular order, was reported by the Clerk and referred to the Committee on Pensions; and then to the Committee on Rules.
The Senate proceeded to the eighth order of business.
Eng. Com. Sub. for Senate Bill No. 88, Creating brownfield economic development districts.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 88) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 235, Creating Office for Oral Health.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for Senate Bill No. 239 , Creating Senior Citizen Property Tax Payment Deferment Act.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's third reading calendar .
Eng. Com. Sub. for Senate Bill No. 248, Providing state will not participate in Real ID Act of 2005.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Com. Sub. for Senate Bill No. 286, Providing adult and child protective services workers personal immunity from civil liability.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 286) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 286) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 309, Increasing Secretary of Transportation and Commissioner of Highways salary when one person serves as both.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White and Tomblin (Mr. President)--30.
The nays were: Barnes, Hunter and Yoder--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 309) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White and Tomblin (Mr. President)--30.
The nays were: Barnes, Hunter and Yoder--3.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 309) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 332, Creating Refund Anticipation Loan Disclosure Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 332) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 349, Authorizing Miscellaneous Boards and Agencies promulgate legislative rules.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 349) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 349) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 398, Authorizing Department of Health and Human Resources promulgate legislative rules.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 398) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 398) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 417, Authorizing Department of Revenue promulgate legislative rules.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Helmick, Hunter, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Stollings, Wells, White and Tomblin (Mr. President)--22.
The nays were: Barnes, Boley, Caruth, Guills, Hall, Jenkins, Prezioso, Sprouse, Sypolt, Unger and Yoder--11.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 417) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for Senate Bill No. 417--A Bill to amend and reenact article 7, chapter 64 of the Code of West Virginia, 1931 , as amended, relating generally to the promulgation of administrative rules by the Department of Revenue and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; authorizing the Alcohol Beverage Control Commission to promulgate a legislative rule relating to retail licensee operations ; authorizing the Alcohol Beverage Control Commission to promulgate a legislative rule relating to farm wineries; authorizing the Alcohol Beverage Control Commission to promulgate a legislative rule relating to the sale of wine ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to guaranteed loss ratios as applied to individual sickness and accident insurance policies ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to mental health parity ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to recognition of preferred mortality tables for use in determining minimum reserve liabilities ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to the replacement of life insurance policies and annuity contracts ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to military sales practices ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to suitability in annuity transactions ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to life insurance disclosures; authorizing the Insurance Commissioner to promulgate a legislative rule relating to life insurance illustrations ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to examiners and examinations ; authorizing the Insurance Commissioner to promulgate a legislative rule relating to the licensing and conduct of insurance producers, agencies and solicitors; authorizing the Insurance Commissioner to promulgate a legislative rule relating to fingerprinting requirements for applications for an insurance producer license; authorizing the Insurance Commissioner to promulgate a legislative rule relating to advertisement of life insurance and annuities; authorizing the Lottery Commission to promulgate a legislative rule relating to racetrack table games ; and authorizing the State Tax Division to promulgate a legislative rule relating to the exchange of information agreement between the Commissioner of the Tax Division of the Department of Revenue and the Commissioner of the Division of Labor of the Department of Commerce, the Commissioner of the Insurance Commission of the Department of Revenue, the Commissioner of the Division of Motor Vehicles of the Department of Transportation, the Commissioner of the Bureau of Employment Programs and the Office of the Governor.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--27.
The nays were: Barnes, Boley, Hall, Prezioso, Sprouse and Sypolt--6.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 417) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 473, Relating to wine sales.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Bailey, Guills, Sprouse and Unger--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 473) passed with its title.
Senator Chafin moved that the bill take effect from July 1, 2008.
On this question, the yeas were: Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Wells, White, Yoder and Tomblin (Mr. President)--29.
The nays were: Bailey, Guills, Sprouse and Unger--4.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 473) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 477, Increasing conservation officers' salaries and length of service.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 477) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 477) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 501, Transferring Stream Partners Fund from Division of Natural Resources to Department of Environmental Protection.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 501) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 504, Relating to child support enforcement.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 504) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 524, Requiring liability for manufacturing, selling or dispensing certain controlled substances causing death.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 524) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 533, Relating to motor vehicle dealer requirements.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for Senate Bill No. 553, Creating Permitting and Licensing Information Act.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 553) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 556, Relating to towing unlawfully parked vehicles.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 556) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 559, Increasing certain Cultural Facilities and Capitol Resources Matching Grant Program Fund allocations.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 559) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 559) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 574, Increasing State Police compensation.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 574) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 574) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 594, Establishing Bill of Rights and Responsibilities for Students and School Personnel.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for Senate Bill No. 650, Relating to Emergency Medical Services Retirement System.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 650) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 659, Increasing certain crime victims' benefits.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Prior to the call of the roll, Senator Fanning moved to be excused from voting under rule number forty-three of the Rules of the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Sharpe--1.
Excused from voting: Fanning--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 659) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Senate Bill No. 659--A Bill to amend and reenact §14-2A-3 and §14-2A-14 of the Code of West Virginia, 1931, as amended, all relating to crime victims' compensation; increasing the allowable expense for funerals, cremations and burials; and increasing the compensation to all claimants because of the death of the victim.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: None.
Absent: Sharpe--1.
Excused from voting: Fanning--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 659) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 666, Permitting fraternal organizations certain use of charitable raffle proceeds.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 666) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Com. Sub. for Senate Bill No. 676, Limiting certain park and recreation owners' liabilities.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 676) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 677, Modifying certain firearm use restrictions.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 677) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 680, Relating to corporate net income tax and business franchise tax.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator McCabe, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's third reading calendar, following consideration of Engrossed Committee Substitute for Senate Bill No. 239, already placed in that position.
Eng. Com. Sub. for Senate Bill No. 681, Creating Beckley-Raleigh County Building Code Authority.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 681) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 681) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 696, Providing appraisal methods for certain multifamily rental properties.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 696) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 696) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 702, Providing Economic Opportunity Tax Credit to certain businesses.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Senate Bill No. 706, Providing for liner placement through mined-out coal horizons.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 706) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 740, Reforming Berkeley County commission.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 740) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 740) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 758, Specifying certain terms of Public Employees Insurance Agency participation.
Having been removed from the Senate third reading calendar in earlier proceedings today, no further action thereon was taken.
Eng. Senate Bill No. 767, Reducing Director of Personnel's experience requirements.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Com. Sub. for Senate Bill No. 770, Reducing certain landfill solid waste assessment fees.
On third reading, coming up in regular order, with the right having been granted on yesterday, Tuesday, February 26, 2008, for amendments to be received on third reading, was reported by the Clerk.
On motion of Senator White, the following amendments to the bill were reported by the Clerk and considered simultaneously:
On page three, section eleven, line eleven, by striking out the word "three" and inserting in lieu thereof the word "nine";
On page three, section eleven, line fourteen, by striking out the words "five hundred seventy" and inserting in lieu thereof the words "one thousand eight hundred";
On page three, section eleven, line fifteen, by striking out
the word "three-month" and inserting in lieu thereof the word "nine-month";
On page fifteen, section nineteen, line eleven, by striking out the word "three" and inserting in lieu thereof the word "nine";
On page fifteen, section nineteen, line fourteen, by striking out the words "five hundred seventy" and inserting in lieu thereof the words "one thousand eight hundred";
On page fifteen, section nineteen, line fifteen, by striking out the word "three-month" and inserting in lieu thereof the word "nine-month";
On page twenty-five, section four, line twelve, by striking out the word "three" and inserting in lieu thereof the word "nine";
On page twenty-five, section four, line fifteen, by striking out the words "five hundred seventy" and inserting in lieu thereof the words "one thousand eight hundred";
On page twenty-five, section four, line sixteen, by striking out the word "three-month" and inserting in lieu thereof the word "nine-month";
On page thirty-five, section thirty, line twelve, by striking out the word "three" and inserting in lieu thereof the word "nine";
On page thirty-five, section thirty, lines fourteen and fifteen, by striking out the words "five hundred seventy" and inserting in lieu thereof the words "one thousand eight hundred";
And,
On page thirty-five, section thirty, line sixteen, by striking out the word "three-month" and inserting in lieu thereof the word "nine-month".
Following discussion,
The question being on the adoption of Senator White's amendments to the bill (Com. Sub. for S. B. No. 770), the same was put and did not prevail.
The bill was ordered to engrossment.
Engrossed Committee Substitute for Senate Bill No. 770 was then read a third time and put upon its passage.
Pending extended discussion,
Senator Wells moved the previous question, which motion prevailed.
The previous question having been ordered, that being on the passage of Engrossed Committee Substitute for Senate Bill No. 770.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt and Tomblin (Mr. President)--26.
The nays were: Green, Hunter, McKenzie, Unger, Wells, White and Yoder--7.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 770) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 777, Authorizing Marshall University and West Virginia University to manage certain real property.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 777) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 778, Relating to veterans' benefits.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 778) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for Senate Bill No. 781, Relating to service of suggestee execution and notice.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 781) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 786, Authorizing Department of Administration's Real Estate Division to acquire real property.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 786) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 787, Authorizing mini-trucks' registration.
On third reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Kessler, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator Kessler, the following amendment to the bill was reported by the Clerk and adopted:
On page eleven, section one, line one hundred eighty-seven, after the word "control" by inserting the words "or an all-terrain utility vehicle (UTV) designed for off-highway use having a bench or bucket seat and a steering wheel".
The bill, as just amended, was again ordered to engrossment.
Engrossed Senate Bill No. 787 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 787) passed.
On motion of Senator Kessler, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Senate Bill No. 787--A Bill to amend and reenact §17A-1-1 of the Code of West Virginia, 1931, as amended; to amend and reenact §17A-3-4 and §17A-3-7 of said code; to amend and reenact §17A-3A-2 and §17A-3A-3 of said code; to amend and reenact §17A-4-3 of said code; and to amend said code by adding thereto a new section, designated §17A-10-1a, all relating to registering and operation of mini-trucks; and defining terms.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Chafin, the Senate recessed until 5:30 p.m. today.
Upon expiration of the recess, the Senate reconvened.
Senator Chafin announced that in the meeting of the Committee on Rules previously held, the committee, in accordance with rule number seventeen of the Rules of the Senate, had returned to the Senate calendar on third reading, Engrossed Committee Substitute for Senate Bill No. 248.
The Senate resumed consideration of its third reading calendar, the next bill coming up in numerical sequence being
Eng. Com. Sub. for Senate Bill No. 248, Providing state will not participate in Real ID Act of 2005 .
On third reading, coming up in regular order, was read a third time and put upon its passage.
Pending discussion,
At the request of Senator Deem, unanimous consent being granted, further consideration of the bill was deferred until the conclusion of bills on today's second reading calendar.
Thereafter, at the request of Senator Love, and by unanimous consent, the remarks by Senator Barnes regarding the passage of Engrossed Committee Substitute for Senate Bill No. 248 were ordered printed in the Appendix to the Journal.
The end of today's third reading calendar having been reached, the Senate returned to the consideration of
Eng. Com. Sub. for Senate Bill No. 239, Creating Senior Citizen Property Tax Payment Deferment Act.
On third reading, coming up in deferred order, was again reported by the Clerk.
At the request of Senator Unger, unanimous consent was granted to offer amendments to the bill on third reading.
Thereupon, on motions of Senators Unger and Boley, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
B y striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §11-6H-1, §11-6H-2, §11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H- 9, §11-6H-10, §11-6H-11 and §11-6H-12; and that said code be amended by adding thereto a new section, designated §11-21-24, all to read as follows:
ARTICLE 6H. SENIOR CITIZEN PROPERTY TAX PAYMENT DEFERMENT ACT.

§11-6H-1. Short title.
This article shall be known as the "Senior Citizen Property Tax Payment Deferment Act".
§11-6H-2. Definitions.
As used in this article, the following terms shall have the meaning ascribed to them in this section, unless the context in which the term is used clearly requires a different meaning or a specific different definition is provided:
(1) "Assessed value" means the value of property as determined under article three of this chapter.
(2) "Deferment" means a delay or postponement.
(3) "Homestead" means a homestead qualified for the homestead property tax exemption authorized in article six-b of this chapter, but limited to a single family residential house, including a mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of the single family residential house, including a mobile or manufactured or modular home; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned by another.
(4) "Owner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.
(5) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
(6) "Tax increment" means the increase of ad valorem taxes assessed on the homestead, determined as the difference between the ad valorem taxes assessed on the homestead for the current tax year and the ad valorem taxes assessed on the homestead for the tax year immediately preceding the tax year for which the taxpayer's application for property tax deferment specified in this article is approved by the assessor, or otherwise finally approved in accordance with the provisions of this article.
(7) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that subsequent to making application for deferment, the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use.
(8) "Tax year" means the calendar year following the July first assessment day.
§11-6H-3. Property tax payment rebate.
(a) The following homesteads shall qualify for the rebate provided in subsection (b) of this section:
(1) Any homestead owned by an owner who is:
(A) Sixty-five years of age or older; and
(B) Used and occupied exclusively for residential purposes by such owner; and
(C)Receiving less than twenty-five thousand dollars in annual income in the aggregate between the owner and his/her spouse : Provided, That this amount shall be adjusted annually to account for inflation by using the consumer price index.
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who lives in the home, or as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility; and
(B) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes; and
(D) Is owned by an individual who receives less than twenty- five thousand dollars in annual income in the aggregate between the owner and his/her spouse : Provided, That this amount shall be adjusted annually to account for inflation by using the consumer price index.
(b) For tax years commencing on or after the first day of January, two thousand nine, the owner of a homestead meeting the qualifications set forth in subsection (a) of this section shall qualify for a rebate in the amount above and beyond the amount paid by the owner in the taxable year of their sixty-fifth birthday for the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead: Provided, That the tax year used to determine eligibility for the rebate provided in subsection (b) of this section shall be tax year two thousand nine or any tax year subsequent to tax year two thousand nine, if the owner of the homestead qualifies for the rebate in a subsequent tax year: Provided further, That the rebate may be authorized only when the tax increment is the greater of three hundred dollars or ten percent or more.
§11-6H-4. Property tax payment deferment.
(a) The following homesteads shall qualify for the deferment provided in subsection (b) of this section:
(1) Any homestead owned by an owner sixty-five years of age or older and used and occupied exclusively for residential purposes by such owner; and
(2) Any homestead that:
(A) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility;
(B) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and
(C) Has been retained by the owner for noncommercial purposes.
(b) (1) For tax years commencing on or after the first day of January, two thousand nine, the owner of a homestead meeting the qualifications set forth in subsection (a) of this section may apply for a deferment in the payment of the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead: Provided, That the deferment may be authorized only when the tax increment is the greater of three hundred dollars or ten percent or more.
(2) In lieu of the deferment of the tax increment authorized pursuant to this article, a Taxpayer entitled to such deferment may elect to instead apply the Senior Citizen Property Tax Relief Credit authorized under section twenty-four, article twenty one of this chapter. Any Taxpayer making such election shall be fully subject to the terms and limitations set forth in section twenty four, article twenty-one of this chapter.
§11-6H-5. Application for deferment; renewals; waiver of deferment.

(a) General. -- No deferment may be allowed under this article unless an application for deferment is filed with the assessor of the county in which the homestead is located, on or before the first day of November following mailing of the tax ticket in which the tax increment that is the subject of the application is contained, such tax ticket being mailed pursuant to section eight, article one, chapter eleven-a of this code. In the case of sickness, absence or other disability of the owner, the application may be filed by the owner or his or her duly authorized agent.
(b) Renewals. -- After the owner has filed an application for deferment with his or her assessor, there shall be no need for that owner to refile an application for the taxes so deferred.
(c) Waiver of deferment. -- Any person otherwise qualified who does not apply for deferment from payment of a tax increment on or before the first day of November as specified in this article, is considered to have waived his or her right to apply for deferment from such payment for that tax year.
§11-6H-6. Determination; notice of denial of application for deferment.

(a) The assessor shall, as soon as practicable after an application for deferment is filed, review that application and either approve or deny it. The assessor shall approve or disapprove an application for deferment within thirty days of receipt. Any application not approved or denied within thirty days is deemed approved. If the application is denied, the assessor shall promptly, but not later than the first day of January, serve the owner with written notice explaining why the application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The notice required or authorized by this section shall be served on the owner or his or her authorized representative either by personal service or by certified mail.
(b) In the event that the assessor has information sufficient to form a reasonable belief that an owner, after having been originally granted a deferment, is no longer eligible for the deferment, he or she shall, within thirty days after forming this reasonable belief, revoke the deferment and serve the owner with written notice explaining the reasons for the revocation and furnish a form for filing with the county commission should the owner desire to take an appeal.
§11-6H-7. Appeals procedure.
(a) Notice of appeal; thirty days. -- Any owner aggrieved by the denial of his or her claim for application for deferment or the revocation of a previously approved deferment may appeal to the county commission of the county within which the property is situated. All such appeals shall be filed within thirty days after the owner's receipt of written notice of the denial of an application or the revocation of a previously approved deferment, as applicable, pursuant to section five of this article.
(b) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February following the tax year for which the deferment was first sought. In conducting its review, the county commission may hold a hearing on the application. The assessor or the owner may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter.
§11-6H-8. Termination of deferment.
Any deferment approved in accordance with the provisions of section five of this article shall terminate immediately when any of the following events occur:
(1) The death of the owner of the property for which the deferment was authorized;
(2) The sale of the property for which the deferment was approved;
(3) A determination by the assessor that the property for which the deferment was approved no longer qualifies for the deferment in accordance with the provisions of this article;
(4) The owner of the property for which the deferment was approved fails to maintain a fire insurance policy on the property that, if the property is destroyed, is sufficient to pay all debts for which the property is used as collateral and all tax increments that have been deferred, including accrued interest and other charges provided by law;
(5) The owner of the property for which the deferment was approved fails to maintain a flood insurance policy that, if the property is destroyed, is sufficient to pay all debts for which the property is used as collateral and all tax increments that have been deferred, including accrued interest and other charges provided by law: Provided, That the provisions of this subdivision shall apply only to the following property: (A) Property within a flood elevation that has a one percent chance of being equaled or exceeded each year, as determined by the federal Emergency Management Agency; (B) property within a one hundred year floodplain as designated by the federal Emergency Management Agency; or (C) property within a special flood hazard area as determined by the federal Emergency Management Agency or as shown on the most current National Flood Insurance Program flood hazard boundary map, flood insurance rate map, or flood boundary and floodway map; or
(6) The tax increments deferred from payment, including any accrued interest and other charges provided by law, are paid in full.
§11-6H-9. Property tax books; lien on property.
(a) Property book entry. -- The amount deferred from payment of the tax increment shall be shown and continued on the property books until paid.
(b) Lien; statement to homestead owner. -- The amount of the tax increment deferred from payment, and the interest thereon and other charges as provided by law, shall be a lien on the real property for which the tax was assessed that continues until paid in full, and is not subject to the requirements for the collection of taxes provided in chapter eleven-a of this code. For purposes of this article, the interest to be charged shall be at the interest rate specified in subsection (a), section three, article one, chapter eleven-a of this code.
(c) When lien is to be paid. -- The lien required by this section shall be paid no later than ninety days following the occurrence of any one of the events set forth in section seven of this article.
(d) Limitation on execution on lien and limitation on transfer of lien. No county or levying body nor any official, agent or representative thereof, shall execute upon, or collect upon any lien created pursuant to this article, until one of the conditions for termination of deferment set forth in section seven of this article has occurred. No county or levying body nor any official, agent or representative thereof, shall assign, or transfer any right to execute upon or collect upon any such lien to any other person or entity until one of the conditions for termination of deferment set forth in section seven of this article has occurred.
§11-6H-10. Forms, instructions and regulations.
The Tax Commissioner shall prescribe and supply all necessary instructions and forms for administration of this article. Additionally, the Tax Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, as the Tax Commissioner considers necessary for the implementation of this article.
§11-6H-11. Criminal penalties; restitution.
(a) False or fraudulent claim for deferment. -- Any owner who willfully files a fraudulent application for deferment, and any person who knowingly assisted in the preparation or filing of such fraudulent application for deferment or who knowingly supplied information upon which the fraudulent application for deferment was prepared or allowed, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty nor more than five hundred dollars, or imprisoned in jail for not more than one year, or both fined and imprisoned.
(b) Failure to notify assessor. -- Any owner or his or her legal representative who, prior to the next first day of July, fails to notify the assessor of the county wherein property subject to the tax increment deferment is located, that title to that property or a portion thereof was transferred by deed, grant, sale, gift, will or by the laws of this state regulating descent and distribution, or that the property is no longer used and occupied for residential purposes exclusively by the owner, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than one thousand dollars or imprisoned in jail for not more than one year or both fined and imprisoned.
(c) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto the county for all taxes not paid due to an improper deferment, or continuation of a deferment, for the owner and interest thereon at the legal rate until paid.
§11-6H-12. Severability.
If any provision of this article or the application thereof to any person or circumstance is held unconstitutional or invalid, such unconstitutionality or invalidity does not affect, impair or invalidate other provisions or applications of the article, and to this end the provisions of this article are declared to be severable.
§11-21-24. Senior Citizen Property Tax Relief Credit.
(a) Definitions. -- As used in this section, the following terms shall have the meaning ascribed to them in this subsection, unless the context in which the term is used clearly requires a different meaning or a specific different definition is provided:
(1) "Assessed value" means the value of property as determined under article three of this chapter.
(2) Real Property taxes paid" -- For the tax years beginning before the first day January, two thousand nine, "real property taxes paid" means the aggregate of regular levies, excess levies and bond levies extended against the homestead that are paid during the calendar year and determined after any application of any discount for early payment of taxes but before application of any penalty or interest for late payment of property taxes for property tax years that begin on or after the first day of January, two thousand nine.
(3) "Senior citizen property tax relief tax credit" means the tax credit authorized under this section.
(4) "Gross household income" means gross household income as defined in section twenty-three of this article.
~~(4)~~ (5) "Homestead" means a homestead qualified for the homestead property tax exemption authorized in article six-b of this chapter, but limited to a single family residential house, including a mobile or manufactured or modular home, and the land, not exceeding one acre, surrounding such structure that is owned by the owner of the single family residential house, including a mobile or manufactured or modular home; or a mobile or manufactured or modular home regardless of whether the land upon which such mobile or manufactured or modular home is situated is owned by another.
~~(5)~~ (6) "Owner" or "homeowner" means the person who is possessed of the homestead, whether in fee or for life. A person seized or entitled in fee subject to a mortgage or deed of trust shall be considered the owner. A person who has an equitable estate of freehold, or is a purchaser of a freehold estate who is in possession before transfer of legal title shall also be considered the owner. Personal property mortgaged or pledged shall, for the purpose of taxation, be considered the property of the party in possession.
~~(6)~~ (7) "Sixty-five years of age or older" includes a person who attains the age of sixty-five on or before the thirtieth day of June following the July first assessment day.
~~(7)~~ (8) "Tax increment" means the increase of ad valorem taxes assessed on the homestead, determined as the difference between the ad valorem taxes assessed on the homestead for the current tax year and the ad valorem taxes assessed on the homestead for the tax year immediately preceding the tax year for which the taxpayer's application for tax credit specified in this section is approved by the assessor, or otherwise finally approved in accordance with the provisions of this article.
~~(8)~~ (9) "Tax year" means the property tax calendar year following the July first assessment day.
~~(9)~~ (10) "Used and occupied exclusively for residential purposes" means that the property is used as an abode, dwelling or habitat for more than six consecutive months of the calendar year prior to the date of application by the owner thereof; and that subsequent to making application for tax credit, the property is used only as an abode, dwelling or habitat to the exclusion of any commercial use.
(b) Refundable credit. -- Subject to the requirements and limitations of this section, for the tax years beginning on or after the first day of January, two thousand nine, any homeowner having a gross household income equal to or less than twenty-five thousand dollars for the tax year, living in his or her homestead shall be allowed a refundable credit against the taxes imposed by this article equal to amount of real property taxes paid that are attributable to the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead. Provided, that gross household income shall be adjusted annually in accordance with the consumer price index. The credit shall be applied against the personal income tax in the personal income tax year of the Taxpayer when the property tax increment was actually paid.
(1) Due to the administrative cost of processing, the refundable credit authorized by this section may not be refunded if less than ten dollars.
(2) The credit for each property tax year shall be claimed by filing a claim for refund within twelve months after the real property taxes are paid on the homestead.
(3) Notwithstanding the provisions of section twenty-one of this article or section twenty-three, for property tax years that begin on or after the first day of January, two thousand nine, a homeowner is eligible to benefit from this section or section twenty-one of this article, or section twenty three of this article, whichever section provides the most benefit as determined by the homeowner. No homeowner may receive benefits under more than one of the specified sections during the same taxable year. Nothing in this section shall be interpreted to deny any lawfully entitled taxpayer of the homestead exemption provided in section three, article six-b of this chapter.
(c) Qualification for credit. --
(1) The following homesteads shall qualify for the tax credit provided in this section:
(A) Any homestead owned by an owner sixty-five years of age or older and used and occupied exclusively for residential purposes by such owner; and
(B) Any homestead that:
(i) Is owned by an owner sixty-five years of age or older who, as a result of illness, accident or infirmity, is residing with a family member or is a resident of a nursing home, personal care home, rehabilitation center or similar facility;
(ii) Was most recently used and occupied exclusively for residential purposes by the owner or the owner's spouse; and
(iii) Has been retained by the owner for noncommercial purposes.
(2) (A) For tax years commencing on or after the first day of January, two thousand nine, the owner of a homestead meeting the qualifications set forth in subdivision (1) of this subsection may apply for a tax credit in the amount of the tax increment of ad valorem taxes assessed under the authority of article three of this chapter on the homestead, subject to the limitations set forth in this section: Provided, That the tax credit may be authorized only when the tax increment is the greater of three hundred dollars or ten percent or more.
(B) In lieu of the tax credit authorized under this section, a Taxpayer entitled to such credit may elect to instead apply the deferment of the tax increment authorized pursuant to article six-I of this chapter. Any Taxpayer making such election shall be fully subject to the terms and limitations set forth in article six-I of this chapter.
(d) Application for tax credit; renewals; waiver of tax credit. --
(1) General. -- No tax credit may be allowed under this section unless an application for tax credit is filed with the assessor of the county in which the homestead is located, on or before the first day of November following mailing of the tax ticket in which the tax increment that is the subject of the application is contained, such tax ticket being mailed pursuant to section eight, article one, chapter eleven-a of this code. In the case of sickness, absence or other disability of the owner, the application may be filed by the owner or his or her duly authorized agent.
(2) Renewals. -- After the owner has filed an application for tax credit with his or her assessor, there shall be no need for that owner to refile an application for the tax credit. However, the Taxpayer shall in all cases be required to file a personal income tax return in order to claim the credit in any tax year.
(e) Determination; notice of denial of application for tax credit. --
(1) The assessor shall, as soon as practicable after an application for tax credit is filed, review that application and either approve or deny it. If the application is denied, the assessor shall promptly, but not later than the first day of January, serve the owner with written notice explaining why the application was denied and furnish a form for filing with the county commission, should the owner desire to take an appeal. The notice required or authorized by this section shall be served on the owner or his or her authorized representative either by personal service or by certified mail. The assessor shall approve or disapprove an application for tax credit within thirty days of receipt. Any application not approved or denied within thirty days is deemed approved.
(2) In the event that the assessor has information sufficient to form a reasonable belief that an owner, after having been originally granted a tax credit, is no longer eligible for the tax credit, he or she shall, within thirty days after forming this reasonable belief, revoke the tax credit and serve the owner with written notice explaining the reasons for the revocation and furnish a form for filing with the county commission should the owner desire to take an appeal.
(f) Appeals procedure. --
(1) Notice of appeal; thirty days. -- Any owner aggrieved by the denial of his or her claim for application for tax credit or the revocation of a previously approved tax credit may appeal to the county commission of the county within which the property is situated. All such appeals shall be filed within thirty days after the owner's receipt of written notice of the denial of an application or the revocation of a previously approved tax credit, as applicable, pursuant to subsection (e) of this section.
(2) Review; determination; appeal. -- The county commission shall complete its review and issue its determination as soon as practicable after receipt of the notice of appeal, but in no event later than the twenty-eighth day of February following the tax year for which the tax credit was first sought. In conducting its review, the county commission may hold a hearing on the application. The assessor or the owner may apply to the circuit court of the county for review of the determination of the county commission in the same manner as is provided for appeals from the county commission in section twenty-five, article three of this chapter.
(g) Termination of tax credit. --
(1) Any tax credit approved in accordance with the provisions of this section shall terminate immediately when any of the following events occur:
(A) The death of the owner of the property for which the tax credit was authorized;
(B) The sale of the property for which the tax credit was approved;
(C) A determination by the assessor that the property for which the tax credit was approved no longer qualifies for the tax credit in accordance with the provisions of this section;
(h) Forms, instructions and regulations. -- The Tax Commissioner shall prescribe and supply all necessary instructions and forms for administration of this section. Additionally, the Tax Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty- nine-a of this code, as the Tax Commissioner considers necessary for the implementation of this section.
(i) Criminal penalties; restitution. --
(1) False or fraudulent claim for tax credit. -- Any owner who willfully files a fraudulent application for tax credit, and any person who knowingly assisted in the preparation or filing of such fraudulent application for tax credit or who knowingly supplied information upon which the fraudulent application for tax credit was prepared or allowed, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than two hundred fifty nor more than five hundred dollars, or imprisoned in jail for not more than one year, or both fined and imprisoned.
(2) In addition to the criminal penalties provided above, upon conviction of any of the above offenses, the court shall order that the defendant make restitution unto this state for all taxes not paid due to an improper tax credit, or continuation of a tax credit, for the owner and interest thereon at the legal rate until paid.
(j) Rules. -- The Tax Commissioner may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, as the Tax Commissioner considers necessary for the implementation of this section.
The bill, as just amended, was again ordered to engrossment.
Engrossed Committee Substitute for Senate Bill No. 239 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 239) passed.
On motions of Senators Unger and Boley, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for Senate Bill No. 239--A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-6H-1, §11-6H-2, §11-6H-3, §11-6H-4, §11-6H- 5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-9, §11-6H-10, §11-6H-11 and §11-6H-12, all relating to the Senior Citizen Property Tax Payment Deferment and Rebate Act; providing definitions; providing deferment for payment of certain property tax increments; providing tax rebate payments to certain qualifying senior citizens; requiring application for the deferment; providing for deferment renewal and waiver of deferment; providing procedures for the review and approval of application by the assessor; providing an appeals procedure; authorizing creation of a lien on property for which deferment is approved; specifying conditions for liens and lien payment and termination; requiring the Tax Commissioner to prescribe necessary forms and instructions; authorizing the Tax Commissioner to propose legislative rules; establishing criminal penalties; and authorizing severability of provisions of the article.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 239) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Action as to Engrossed Committee Substitute for Senate Bill No. 239 having been concluded, the Senate proceeded to the consideration of
Eng. Com. Sub. for Senate Bill No. 680, Relating to corporate net income tax and business franchise tax.
On third reading, coming up in deferred order, was again reported by the Clerk.
At the request of Senator McCabe, unanimous consent was granted to offer an amendment to the bill on third reading.
Thereupon, on motion of Senator McCabe, the following amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §11-23-5b of the Code of West Virginia, 1931, as amended, be repealed; that §11-13S-4 of said code be amended and reenacted; that §11-23-5a of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-23-17b; that §11-24-3a, §11-24-4, §11-24-7, §11-24-7b, §11-24-13a, §11-24-13c, §11-24-13d, §11-24-13f and §11-24-42 of said code be amended and reenacted; and that said code be amended by adding thereto two new sections, designated §11-24-3b and §11- 24-9b, all to read as follows:
ARTICLE 13S. MANUFACTURING INVESTMENT TAX CREDIT.
§11-13S-4. Amount of credit allowed for manufacturing investment.
(a) Credit allowed. -- There is allowed to eligible taxpayers and to persons described in subdivision (5), subsection (b) of this section a credit against the taxes imposed by articles thirteen-a, twenty-three and twenty-four of this chapter. The amount of credit shall be determined as hereinafter provided in this section.
(b) Amount of credit allowable. -- The amount of allowable credit under this article is equal to five percent of the qualified manufacturing investment (as determined in section five of this article) and shall reduce the severance tax, imposed under article thirteen-a of this chapter, the business franchise tax imposed under article twenty-three of this chapter and the corporation net income tax imposed under article twenty-four of this chapter, in that order, subject to the following conditions and limitations:
(1) The amount of credit allowable is applied over a ten-year period, at the rate of one-tenth thereof per taxable year, beginning with the taxable year in which the property purchased for manufacturing investment is first placed in service or use in this state;
(2) Severance tax. -- The credit is applied to reduce the severance tax imposed under article thirteen-a of this chapter (determined before application of the credit allowed by section three, article twelve-b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen-a of this chapter). The amount of annual credit allowed may not reduce the severance tax, imposed under article thirteen-a of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after the first day of January, two thousand nine, the amount of annual credit allowed may not reduce the severance tax, imposed under article thirteen-a of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax, imposed under article thirteen-a of this chapter, below fifty percent of the amount which would be imposed for such taxable year (determined before application of the credit allowed by section three, article twelve-b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen-a of this chapter): Provided, however, That when in any taxable year beginning on and after the first day of January, two thousand nine, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the severance tax, imposed under article thirteen-a of this chapter, below forty percent of the amount which would be imposed for such taxable year as determined before application of the credit allowed by section three, article twelve-b of this chapter and before any other allowable credits against tax and before application of the annual exemption allowed by section ten, article thirteen-a of this chapter;
(3) Business franchise tax. --
After application of subdivision (2) of this subsection, any unused credit is next applied to reduce the business franchise tax imposed under article twenty-three of this chapter (determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty-three of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after the first day of January, two thousand nine, the amount of annual credit allowed will not reduce the business franchise tax, imposed under article twenty-three of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the amount of the business franchise tax, imposed under article twenty-three of this chapter, below fifty percent of the amount which would be imposed for the taxable year (determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after the first day of January, two thousand nine, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the amount of the business franchise tax, imposed under article twenty-three of this chapter, below forty percent of the amount which would be imposed for the taxable year as determined after application of the credits against tax provided in section seventeen, article twenty-three of this chapter, but before application of any other allowable credits against tax;
(4) Corporation net income tax. --
After application of subdivision (3) of this subsection, any unused credit is next applied to reduce the corporation net income tax imposed under article twenty-four of this chapter (determined before application of any other allowable credits against tax). The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax: Provided, That for tax years beginning on and after the first day of January, two thousand nine, the amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below forty percent of the amount which would be imposed for such taxable year in the absence of this credit against tax. When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed for the taxable year (determined before application of any other allowable credits against tax): Provided, however, That when in any taxable year beginning on and after the first day of January, two thousand nine, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year may not reduce the amount of the corporation net income tax, imposed under article twenty-four of this chapter, below forty percent of the amount which would be imposed for the taxable year as determined before application of any other allowable credits against tax;
(5) Pass-through entities. --
(A) If the eligible taxpayer is a limited liability company, small business corporation or a partnership, then any unused credit (after application of subdivisions (2), (3) and (4) of this subsection) is allowed as a credit against the taxes imposed by article twenty-four of this chapter on owners of the eligible taxpayer on the conduit income directly derived from the eligible taxpayer by its owners. Only those portions of the tax imposed by article twenty-four of this chapter that are imposed on income directly derived by the owner from the eligible taxpayer are subject to offset by this credit.
(B) The amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below fifty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes (determined before application of any other allowable credits against tax): Provided, That for tax years beginning on and after the first day of January, two thousand nine, the amount of annual credit allowed will not reduce corporation net income tax, imposed under article twenty-four of this chapter, below forty percent of the amount which would be imposed on the conduit income directly derived from the eligible taxpayer by each owner for such taxable year in the absence of this credit against the taxes as determined before application of any other allowable credits against tax.
(C) When in any taxable year the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below fifty percent of the amount that would be imposed for such taxable year on the conduit income (determined before application of any other allowable credits against tax): Provided, That when in any taxable year beginning on and after the first day of January, two thousand nine, the taxpayer is entitled to claim credit under this article and article thirteen-d of this chapter, the total amount of all credits allowable for the taxable year will not reduce the corporation net income tax imposed on the conduit income directly derived from the eligible taxpayer by each owner below forty percent of the amount that would be imposed for such taxable year on the conduit income as determined before application of any other allowable credits against tax;
(6) Small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate any unused credit after application of subdivisions (2), (3) and (4) of this subsection among their members in the same manner as profits and losses are allocated for the taxable year; and
(7) No credit is allowed under this article against any tax imposed by article twenty-one of this chapter.
(c) No carryover to a subsequent taxable year or carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance. ~~Such~~ Any unused credit is forfeited.
(d) Application for credit required. --
(1) Application required. -- Notwithstanding any provision of this article to the contrary, no credit is allowed or may be applied under this article for any qualified investment property placed in service or use until the person claiming the credit makes written application to the Tax Commissioner for allowance of credit as provided in this section. This application shall be in the form prescribed by the Tax Commissioner and shall provide the number and type of jobs created, if any, by the manufacturing investment, the average wage rates and benefits paid to employees filling the new jobs and any other information the Tax Commissioner may require. This application shall be filed with the Tax Commissioner no later than the last day for filing the annual return, determined by including any authorized extension of time for filing the return, required under article twenty-one or twenty-four of this chapter for the taxable year in which the property to which the credit relates is placed in service or use.
(2) Failure to file. -- The failure to timely apply the application for credit under this section results in forfeiture of fifty percent of the annual credit allowance otherwise allowable under this article. This penalty applies annually until ~~such~~ the application is filed.
ARTICLE 23. BUSINESS FRANCHISE TAX.
§11-23-5a. Special apportionment rules - financial organizations.
(a) General. -- The Legislature hereby finds that the general formula set forth in section five of this article for apportioning the tax base of corporations and partnerships taxable in this state as well as in another state is inappropriate for use by financial organizations due to the particular characteristics of those organizations and the manner in which their business is conducted. Accordingly, the general formula set forth in section five of this article may not be used to apportion the tax base of ~~such~~ financial organizations which shall use only the apportionment formula and methods set forth in this section.
(b) West Virginia financial organizations taxable in another state. -- A financial organization that has its commercial domicile in this state and which is taxable in another state may not apportion its tax base as provided in section five of this article, but shall ~~allocate all of its tax base to West Virginia without apportionment:~~ apportion its tax base to this state by multiplying it by the special gross receipts factor calculated as provided in subsection (f) of this section. The product of this multiplication is the portion of its tax base that is attributable to business activity in this state. ~~Provided,~~ ~~That such financial organization shall be allowed as a credit against its tax liability under this article the credit described in section twenty-seven of this article~~
(c) Out-of-state financial organizations with business activities in this state. -- A financial organization that does not have its commercial domicile in this state and which regularly engages in business in this state shall apportion its tax base to this state by multiplying it by the special gross receipts factor calculated as provided in subsection (f) of this section. The product of this multiplication is the portion of its tax base that is attributable to business activity in this state.
(d) Engaging in business -- nexus presumptions and exclusions. -- A financial organization that has its commercial domicile in another state is presumed to be regularly engaging in business in this state if during any year it obtains or solicits business with twenty or more persons within this state, or if the sum of the value of its gross receipts attributable to sources in this state equals or exceeds one hundred thousand dollars. However, gross receipts from the following types of property, as well as those contacts with this state reasonably and exclusively required to evaluate and complete the acquisition or disposition of the property, the servicing of the property or the income from it, the collection of income from the property or the acquisition or liquidation of collateral relating to the property shall not be a factor in determining whether the owner is engaging in business in this state:
(1) An interest in a real estate mortgage investment conduit, a real estate investment trust or a regulated investment company;
(2) An interest in a loan backed security representing ownership or participation in a pool of promissory notes or certificates of interest that provide for payments in relation to payments or reasonable projections of payments on the notes or certificates;
(3) An interest in a loan or other asset from which the interest is attributed to a consumer loan, a commercial loan or a secured commercial loan and in which the payment obligations were solicited and entered into by a person that is independent, and not acting on behalf, of the owner;
(4) An interest in the right to service or collect income from a loan or other asset from which interest on the loan is attributed as a loan described in the previous paragraph and in which the payment obligations were solicited and entered into by a person that is independent, and not acting on behalf, of the owner; ~~and~~ or
(5) Any amounts held in an escrow or trust account with respect to property described above.
(e) Definitions. -- For purposes of this section:
(1) "Commercial domicile" ~~See~~ means the same as that term is defined in section three of this article.
(2) "Deposit" means: (A) The unpaid balance of money or its equivalent received or held by a financial organization in the usual course of business and for which it has given or it is obligated to give credit, either conditionally or unconditionally, to a commercial, checking, savings, time or thrift account whether or not advance notice is required to withdraw the credit funds, or which is evidenced by a certificate of deposit, thrift certificate, investment certificate or certificate of indebtedness, or other similar name, or a check or draft drawn against a deposit account and certified by the financial organization, or a letter of credit or a traveler's check on which the financial organization is primarily liable: Provided, That without limiting the generality of the term "money or its equivalent", any ~~such~~ account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any ~~such~~ credit or instrument is primarily or secondarily liable or for a charge against a deposit account or in settlement of checks, drafts or other instruments forwarded to ~~such~~ the bank for collection;
(B) Trust funds received or held by ~~such~~ a financial organization, whether held in the trust department or held or deposited in any other department of ~~such~~ the financial organization;
(C) Money received or held by a financial organization or the credit given for money or its equivalent received or held by a financial organization in the usual course of business for a special or specific purpose, regardless of the legal relationship thereby established, including, without being limited to, escrow funds, funds held as security for an obligation due the financial organization or other, including funds held as dealers' reserves, or for securities loaned by the financial organization, funds deposited by a debtor to meet maturing obligations, funds deposited as advance payment on subscriptions to United States government securities, funds held for distribution or purchase of securities, funds held to meet its acceptances or letters of credit and withheld taxes: Provided, That there shall not be included funds which are received by the financial organization for immediate application to the reduction of an indebtedness to the receiving financial organization or under condition that the receipt thereof immediately reduces or extinguishes ~~such~~ an indebtedness;
(D) Outstanding drafts, including advice or authorization to charge a financial organization's balance in another ~~such~~ organization, cashier's checks, money orders or other officer's checks issued in the usual course of business for any purpose, but not including those issued in payment for services, dividends or purchases or other costs or expenses of the financial organization itself; and
(E) Money or its equivalent held as a credit balance by a financial organization on behalf of its customer if ~~such~~ the entity is engaged in soliciting and holding ~~such~~ balances in the regular course of its business.
(3) "Financial organization" means a financial organization as defined in subdivision (13), subsection (b), section three of this article, as well as a partnership which derives more than fifty percent of its gross business income from one or more of the activities enumerated in subparagraphs (1) through (6), inclusive, paragraph (C) of said subdivision.
(4) "Sales" means: For purposes of apportionment under this section, the gross receipts of a financial organization included in the gross receipts factor described in subsection (f) of this section, regardless of their source.
(f) Special gross receipts factor. -- The gross receipts factor is a fraction, the numerator of which is the total gross receipts of the taxpayer from sources within this state during the taxable year and the denominator of which is the total gross receipts of the taxpayer wherever earned during the taxable year: Provided, That neither the numerator nor the denominator of the gross receipts factor shall include receipts from obligations described in paragraphs (A), (B), (C) and (D), subdivision (1), subsection (f), section six, article twenty-four of this chapter.
(1) Numerator. -- The numerator of the gross receipts factor shall include, in addition to items otherwise includable in the sales factor under section five of this article, the following:
(A) Gross receipts from the lease or rental of real or tangible personal property, whether as the economic equivalent of an extension of credit or otherwise if the property is located in this state;
(B) Interest income and other receipts from assets in the nature of loans which are secured primarily by real estate or tangible personal property if ~~such~~ the security property is located in the state. In the event that ~~such~~ the security property is also located in one or more other states, ~~such~~ receipts shall be presumed to be from sources within this state, subject to rebuttal based upon factors described in rules to be promulgated by the Tax Commissioner, including the factor that the proceeds of any ~~such~~ loans were applied and used by the borrower entirely outside of this state;
(C) Interest income and other receipts from consumer loans which are unsecured or are secured by intangible property that are made to residents of this state, whether at a place of business, by traveling loan officer, by mail, by telephone or other electronic means or otherwise;
(D) Interest income and other receipts from commercial loans and installment obligations which are unsecured or are secured by intangible property if and to the extent that the borrower or debtor is a resident of or is domiciled in this state: Provided, That ~~such~~ receipts are presumed to be from sources in this state and ~~such~~ the presumption may be overcome by reference to factors described in rules to be promulgated by the Tax Commissioner, including the factor that the proceeds of any ~~such~~ loans were applied and used by the borrower entirely outside of this state;
(E) Interest income and other receipts from a financial organization's syndication and participation in loans, under the rules set forth in paragraphs (A) through (D), inclusive, of this subdivision;
(F) Interest income and other receipts, including service charges, from financial institution credit card and travel and entertainment credit card receivables and credit card holders' fees if the borrower or debtor is a resident of this state or if the billings for any ~~such~~ receipts are regularly sent to an address in this state;
(G) Merchant discount income derived from financial institution credit card holder transactions with a merchant located in this state. In the case of merchants located within and without this state, only receipts from merchant discounts attributable to sales made from locations within this state shall be attributed to this state. It shall be presumed, subject to rebuttal, that the location of a merchant is the address shown on the invoice submitted by the merchant to the taxpayer;
(H) Gross receipts from the performance of services are attributed to this state if:
(i) The service receipts are loan-related fees, including loan servicing fees, and the borrower resides in this state, except that, at the taxpayer's election, receipts from loan-related fees which are either: (I) "Pooled" or aggregated for collective financial accounting treatment; or (II) manually written as nonrecurring extraordinary charges to be processed directly to the general ledger may either be attributed to a state based upon the borrowers' residences or upon the ratio that total interest sourced to that state bears to total interest from all sources;
(ii) The service receipts are deposit-related fees and the depositor resides in this state, except that, at the taxpayer's election, receipts from deposit-related fees which are either: (I) "Pooled" or aggregated for collective financial accounting treatment; or (II) manually written as nonrecurring extraordinary charges to be processed directly to the general ledger may either be attributed to a state based upon the depositors' residences or upon the ratio that total deposits sourced to that state bears to total deposits from all sources;
(iii) The service receipt is a brokerage fee and the account holder is a resident of this state;
(iv) The service receipts are fees related to estate or trust services and the estate's decedent was a resident of this state immediately before death or the grantor who either funded or established the trust is a resident of this state; or
(v) The service receipt is associated with the performance of any other service not identified above and the service is performed for an individual resident of, or for a corporation or other business domiciled in, this state and the economic benefit of ~~such~~ service is received in this state;
(I) Gross receipts from the issuance of travelers' checks and money orders if ~~such~~ checks and money orders are purchased in this state; and
(J) All other receipts not attributed by this rule to a state in which the taxpayer is taxable shall be attributed pursuant to the laws of the state of the taxpayer's commercial domicile.
(2) Denominator. -- The denominator of the gross receipts factor shall include all of the taxpayer's gross receipts from transactions of the kind included in the numerator, but without regard to their source or situs.
(g) Effective date. -- The provisions of this section enacted in chapter one hundred sixty-seven, Acts of the Legislature, one thousand nine hundred ninety-one, shall apply to all taxable years beginning on or after the first day of January, one thousand nine hundred ninety-one. The amendments to this section, enacted in the year one thousand nine hundred ninety-six, shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-five. The amendments to this section, enacted in the year two thousand eight, shall apply to taxable years beginning after the thirty-first day of December, two thousand eight.
§11-23-17b. Application of tax credits.
Except where otherwise provided, no tax credit earned by one member of the combined group, but not fully used by or allowed to that member, may be used, in whole or in part, by another member of the group or applied, in whole or in part, against the tax of another member of the combined group; and a tax credit carried over into a subsequent year as to the member that incurred it, and available as a credit to that member in a subsequent year, will be considered in the computation of the capital of that member in the subsequent year regardless of the composition of that capital as apportioned, allocated or wholly within this state: Provided, That unused and unexpired economic development tax credits that were earned during a tax year in which the taxpayer filed a consolidated return under this article may, if otherwise allowed within the statutory limitations applicable to the tax credit, be used, in whole or in part, or applied, in whole or in part, against the taxes imposed by this article on any member of the taxpayer's combined group to the extent the credits would have been allowed had the taxpayer continued to file a consolidated return. For purposes of this section the term economic development tax credit means and is limited to a tax credit asserted on a tax return under article thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-j, thirteen-q, thirteen-r or thirteen-s of this chapter or under article one, chapter five-e of this code.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-3a. Specific terms defined.
For purposes of this article:
(1) Business income. -- The term "business income" means income arising from transactions and activity in the regular course of the taxpayer's trade or business and includes income from tangible and intangible property if the acquisition, management and disposition of the property or the rendering of services in connection therewith constitute integral parts of the taxpayer's regular trade or business operations and includes all income which is apportionable under the Constitution of the United States. (2) "Combined group" means the group of all persons whose income and apportionment factors are required to be taken into account pursuant to subsection (a) or (b), section thirteen-a of this article in determining the taxpayer's share of the net business income or loss apportionable to this state.
(3) Commercial domicile. -- The term "commercial domicile" means the principal place from which the trade or business of the taxpayer is directed or managed: Provided, That the commercial domicile of a financial organization, which is subject to regulation as such, shall be at the place designated as its principal office with its regulating authority.
(4) Compensation. -- The term "compensation" means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.
(5) Corporation. -- "Corporation" means any corporation as defined by the laws of this state or organization of any kind treated as a corporation for tax purposes under the laws of this state, wherever located, which if it were doing business in this state would be ~~a "taxpayer"~~ subject to the tax imposed by this article. The business conducted by a partnership which is directly or indirectly held by a corporation shall be considered the business of the corporation to the extent of the corporation's distributive share of the partnership income, inclusive of guaranteed payments to the extent prescribed by regulation. The term "corporation" includes a joint-stock company and any association or other organization which is taxable as a corporation under the federal income tax law.
(6) Delegate. -- The term "delegate" in the phrase "or his or her delegate", when used in reference to the Tax Commissioner, means any officer or employee of the State Tax Department duly authorized by the Tax Commissioner directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this article or regulations promulgated thereunder.
(7) Domestic corporation. -- The term "domestic corporation" means any corporation organized under the laws of West Virginia and certain corporations organized under the laws of the State of Virginia before the twentieth day of June, one thousand eight hundred sixty-three. Every other corporation is a foreign corporation.
(8) Engaging in business. -- The term "engaging in business" or "doing business" means any activity of a corporation which enjoys the benefits and protection of government and laws in this state.
(9) Federal Form 1120. -- The term "Federal Form 1120" means the annual federal income tax return of any corporation made pursuant to the United States Internal Revenue Code of 1986, as amended, or in successor provisions of the laws of the United States, in respect to the federal taxable income of a corporation, and filed with the federal Internal Revenue Service. In the case of a corporation that elects to file a federal income tax return as part of an affiliated group, but files as a separate corporation under this article, then as to such corporation Federal Form 1120 means its pro forma Federal Form 1120.
(10) Fiduciary. -- The term "fiduciary" means, and includes, a guardian, trustee, executor, administrator, receiver, conservator or any person acting in any fiduciary capacity for any person.
(11) Financial organization. -- The term "financial organization" means:
(A) A holding company or a subsidiary thereof. As used in this section "holding company" means a corporation registered under the federal Bank Holding Company Act of 1956 or registered as a savings and loan holding company other than a diversified savings and loan holding company as defined in Section 408(a)(1)(F) of the federal National Housing Act, 12 U. S. C. §1730(a)(1)(F);
(B) A regulated financial corporation or a subsidiary thereof. As used in this section "regulated financial corporation" means:
(i) An institution, the deposits, shares or accounts of which are insured under the Federal Deposit Insurance Act or by the federal Savings and Loan Insurance Corporation;
(ii) An institution that is a member of a federal home loan bank;
(iii) Any other bank or thrift institution incorporated or organized under the laws of a state that is engaged in the business of receiving deposits;
(iv) A credit union incorporated and organized under the laws of this state;
(v) A production credit association organized under 12 U. S. C. §2071;
(vi) A corporation organized under 12 U. S. C. §611 through §631 (an Edge Act corporation); or
(vii) A federal or state agency or branch of a foreign bank as defined in 12 U. S. C. §3101; or
(C) A corporation which derives more than fifty percent of its gross business income from one or more of the following activities:
(i) Making, acquiring, selling or servicing loans or extensions of credit. Loans and extensions of credit include:
(I) Secured or unsecured consumer loans;
(II) Installment obligations;
(III) Mortgages or other loans secured by real estate or tangible personal property;
(IV) Credit card loans;
(V) Secured and unsecured commercial loans of any type; and
(VI) Loans arising in factoring.
(ii) Leasing or acting as an agent, broker or advisor in connection with leasing real and personal property that is the economic equivalent of an extension of credit as defined by the Federal Reserve Board in 12 CFR 225.25(b)(5).
(iii) Operating a credit card business.
(iv) Rendering estate or trust services.
(v) Receiving, maintaining or otherwise handling deposits.
(vi) Engaging in any other activity with an economic effect comparable to those activities described in subparagraph (i), (ii), (iii), (iv) or (v) of this paragraph.
(12) Fiscal year. -- The term "fiscal year" means an accounting period of twelve months ending on any day other than the last day of December and on the basis of which the taxpayer is required to report for federal income tax purposes.
(13) Includes and including. -- The terms "includes" and "including", when used in a definition contained in this article, ~~shall not be deemed to~~ do not exclude other things otherwise within the meaning of the term being defined.
(14) Insurance company. -- The term "insurance company" means any corporation subject to taxation under section twenty-two, article three, chapter twenty-nine of this code or chapter thirty- three of this code or an insurance carrier subject to the surcharge imposed by subdivision (1) or (3), subsection (f), section three, article two-c, chapter twenty-three of this code or any corporation that would be subject to taxation under any of those provisions were its business transacted in this state.
~~(14)~~ (15) "Internal Revenue Code" means ~~Title 26 of the United States Code, as amended,~~ the Internal Revenue Code as defined in section three of this article, without regard to application of federal treaties unless expressly made applicable to states of the United States.
~~(15)~~ (16) Nonbusiness income. -- The term "nonbusiness income" means all income other than business income.
~~(16)~~ (17) "Partnership" means a general or limited partnership or organization of any kind treated as a partnership for tax purposes under the laws of this state.
~~(17)~~ (18) Person. -- The term "person" is ~~to be deemed~~ considered interchangeable with the term "corporation" in this section. The term "person" means any individual, firm, partnership, general partner of a partnership, limited liability company, registered limited liability partnership, foreign limited liability partnership, association, corporation whether or not the corporation is, or would be if doing business in this state, subject to the tax imposed by this article, company, syndicate, estate, trust, business trust, trustee, trustee in bankruptcy, receiver, executor, administrator, assignee or organization of any kind.
~~(18)~~ (19) Pro forma return. -- The term "pro forma return" when used in this article means the return which the taxpayer would have filed with the Internal Revenue Service had it not elected to file federally as part of an affiliated group.
~~(19)~~ (20) Public utility. -- The term "public utility" means any business activity to which the jurisdiction of the Public Service Commission of West Virginia extends under section one, article two, chapter twenty-four of this code.
~~(20)~~ (21) Sales. -- The term "sales" means all gross receipts of the taxpayer that are "business income" as defined in this section.
~~(21)~~ (22) State. -- The term "state" means any state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, any territory or possession of the United States and any foreign country or political subdivision thereof.
~~(22)~~ (23) Taxable year, tax year. -- The term "taxable year" or "tax year" means the taxable year for which the taxable income of the taxpayer is computed under the federal income tax law.
~~(23)~~ (24) Tax. -- The term "tax" includes, within its meaning, interest and additions to tax, unless the intention to give it a more limited meaning is disclosed by the context.
~~(24)~~ (25) Tax Commissioner. -- The term "Tax Commissioner" means the Tax Commissioner of the State of West Virginia or his or her delegate.
~~(25)~~ (26) "Tax haven" means a jurisdiction that, for a particular tax year in question: (A) Is identified by the Organization for Economic Cooperation and Development as a tax haven or as having a harmful preferential tax regime; or (B) a jurisdiction that has no, or nominal, effective tax on the relevant income and: (i) That has laws or practices that prevent effective exchange of information for tax purposes with other governments regarding taxpayers subject to, or benefitting from, the tax regime; (ii) that lacks transparency, for purposes of this definition, a tax regime lacks transparency if the details of legislative, legal or administrative provisions are not open to public scrutiny and apparent or are not consistently applied among similarly situated taxpayers; (iii) facilitates the establishment of foreign-owned entities without the need for a local substantive presence or prohibits these entities from having any commercial impact on the local economy; (iv) explicitly or implicitly excludes the jurisdiction's resident taxpayers from taking advantage of the tax regime's benefits or prohibits enterprises that benefit from the regime from operating in the jurisdiction's domestic market; or (v) has created a tax regime which is favorable for tax avoidance, based upon an overall assessment of relevant factors, including whether the jurisdiction has a significant untaxed offshore financial or other services sector relative to its overall economy. For purposes of this definition, the phrase "tax regime" means a set or system of rules, laws, regulations or practices by which taxes are imposed on any person, corporation or entity, or on any income, property, incident, indicia or activity pursuant to governmental authority.
~~(26)~~ (27) Taxpayer. -- The term "taxpayer" means any person subject to the tax imposed by this article.
~~(27)~~ (28) This code. -- The term "this code" means the Code of West Virginia, one thousand nine hundred thirty-one, as amended.
~~(28)~~ (29) This state. -- The term "this state" means the State of West Virginia.
~~(29)~~ (30) "United States" means the United States of America and includes all of the states of the United States, the District of Columbia and United States territories and possessions.
~~(30)~~ (31) "Unitary business" means a single economic enterprise that is made up either of separate parts of a single business entity or of a commonly controlled group of business entities that are sufficiently interdependent, integrated and interrelated through their activities so as to provide a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts. For purposes of this article and article twenty-three of this chapter, any business conducted by a partnership shall be treated as conducted by its partners, whether directly held or indirectly held through a series of partnerships, to the extent of the partner's distributive share of the partnership's income, regardless of the percentage of the partner's ownership interest or the percentage of its distributive or any other share of partnership income. A business conducted directly or indirectly by one corporation through its direct or indirect interest in a partnership is unitary with that portion of a business conducted by one or more other corporations through their direct or indirect interest in a partnership if there is a synergy and mutual benefit that produces a sharing or exchange of value among them and a significant flow of value to the separate parts and the corporations are members of the same commonly controlled group.
~~(31)~~ (32) West Virginia taxable income. -- The term "West Virginia taxable income" means the taxable income of a corporation as defined by the laws of the United States for federal income tax purposes, adjusted, as provided in this article: Provided, That in the case of a corporation having income from business activity which is taxable without this state, its "West Virginia taxable income" shall be ~~such~~ the portion of its taxable income as so defined and adjusted as is allocated or apportioned to this state under the provisions of this article.

§11-24-3b. General meaning of definition of the term tax haven for specified jurisdictions.

(a) General. -- For purposes of this article and article twenty-three of this chapter, a jurisdiction that, for a particular tax year in question is identified by the Organization for Economic Cooperation and Development as a tax haven or as having a harmful preferential tax regime means and includes any and all jurisdictions so identified as of the most recent list or compilation of jurisdictions issued, published or adopted by the Organization for Economic Cooperation and Development on or before the effective date of this section.
(b) Effective date. -- This section as enacted in the year two thousand eight shall be effective on passage.
§11-24-4. Imposition of primary tax and rate thereof; effective and termination dates.

Primary tax. -- (1) In the case of taxable periods beginning after the thirtieth day of June, one thousand nine hundred sixty-seven, and ending prior to the first day of January, one thousand nine hundred eighty-three, a tax is hereby imposed for each taxable year at the rate of six percent per annum on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five.
(2) In the case of taxable periods beginning on or after the first day of January, one thousand nine hundred eighty-three, and ending prior to the first day of July, one thousand nine hundred eighty-seven, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, and any banks, banking associations or corporations, trust companies, building and loan associations and savings and loan associations, at the rates which follow:
(A) On taxable income not in excess of fifty thousand dollars, the rate of six percent; and
(B) On taxable income in excess of fifty thousand dollars, the rate of seven percent.
(3) In the case of taxable periods beginning on or after the first day of July, one thousand nine hundred eighty-seven, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of nine and three-quarters percent. Beginning the first day of July, one thousand nine hundred eighty-eight, and on each first day of July thereafter for four successive calendar years, the rate shall be reduced by fifteen one hundredths of one percent per year, with such rate to be nine percent on and after the first day of July, one thousand nine hundred ninety-two.
(4) In the case of taxable periods beginning on or after the first day of January, two thousand seven, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of eight and three-quarters percent.
(5) In the case of taxable periods beginning on or after the first day of January, two thousand nine, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of eight percent.
(6) In the case of taxable periods beginning on or after the first day of January, two thousand ten, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of seven and one-half percent.
(7) In the case of taxable periods beginning on or after the first day of January, two thousand eleven, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of seven percent.
(8) In the case of taxable periods beginning on or after the first day of January, two thousand twelve, a tax is hereby imposed for each taxable year on the West Virginia taxable income of every domestic or foreign corporation engaging in business in this state or deriving income from property, activity or other sources in this state, except corporations exempt under section five of this article, at the rate of six and one-half percent.
§11-24-7. Allocation and apportionment.
(a) General. -- Any taxpayer having income from business activity which is taxable both in this state and in another state shall allocate and apportion its net income as provided in this section. For purposes of this section, the term "net income" means the taxpayer's federal taxable income adjusted as provided in section six of this article.
(b) "Taxable in another state" defined. -- For purposes of allocation and apportionment of net income under this section, a taxpayer is taxable in another state if:
(1) In that state the taxpayer is subject to a net income tax, a franchise tax measured by net income, a franchise tax for the privilege of doing business or a corporation stock tax; or
(2) That state has jurisdiction to subject the taxpayer to a net income tax, regardless of whether, in fact, that state does or does not subject the taxpayer to the tax.
(c) Business activities entirely within West Virginia. -- If the business activities of a taxpayer take place entirely within this state, the entire net income of the taxpayer is subject to the tax imposed by this article. The business activities of a taxpayer are considered to have taken place in their entirety within this state if the taxpayer is not "taxable in another state": Provided, That for tax years beginning before the first day of January, two thousand nine, the business activities of a financial organization having its commercial domicile in this state are considered to take place entirely in this state, notwithstanding that the organization may be "taxable in another state": Provided, however, That for tax years beginning ~~before~~ on or after the first day of January, two thousand nine, the income from the business activities of a financial organization ~~not having its commercial domicile in this state~~ that are taxable in another state shall be apportioned according to the applicable provisions of this article.
(d) Business activities partially within and partially without West Virginia; allocation of nonbusiness income. -- If the business activities of a taxpayer take place partially within and partially without this state and the taxpayer is also taxable in another state, rents and royalties from real or tangible personal property, capital gains, interest, dividends or patent or copyright royalties, to the extent that they constitute nonbusiness income of the taxpayer, shall be allocated as provided in subdivisions (1) through (4), inclusive, of this subsection: Provided, That to the extent the items constitute business income of the taxpayer, they may not be so allocated but they shall be apportioned to this state according to the provisions of subsection (e) of this section and to the applicable provisions of section seven-b of this article.
(1) Net rents and royalties. --
(A) Net rents and royalties from real property located in this state are allocable to this state.
(B) Net rents and royalties from tangible personal property are allocable to this state:
(i) If and to the extent that the property is utilized in this state; or
(ii) In their entirety if the taxpayer's commercial domicile is in this state and the taxpayer is not organized under the laws of or taxable in the state in which the property is utilized.
(C) The extent of utilization of tangible personal property in a state is determined by multiplying the rents and royalties by a fraction, the numerator of which is the number of days of physical location of the property in the state during the rental or royalty period in the taxable year and the denominator of which is the number of days of physical location of the property everywhere during all rental or royalty periods in the taxable year. If the physical location of the property during the rental or royalty period is unknown or unascertainable by the taxpayer, tangible personal property is utilized in the state in which the property was located at the time the rental or royalty payer obtained possession.
(2) Capital gains. --
(A) Capital gains and losses from sales of real property located in this state are allocable to this state.
(B) Capital gains and losses from sales of tangible personal property are allocable to this state if:
(i) The property had a situs in this state at the time of the sale; or
(ii) The taxpayer's commercial domicile is in this state and the taxpayer is not taxable in the state in which the property had a situs.
(C) Capital gains and losses from sales of intangible personal property are allocable to this state if the taxpayer's commercial domicile is in this state.
(D) Gains pursuant to Section 631 (a) and (b) of the Internal Revenue Code of 1986, as amended, from sales of natural resources severed in this state shall be allocated to this state if they are nonbusiness income.
(3) Interest and dividends are allocable to this state if the taxpayer's commercial domicile is in this state. --
(4) Patent and copyright royalties. --
(A) Patent and copyright royalties are allocable to this state:
(i) If and to the extent that the patent or copyright is utilized by the payer in this state; or
(ii) If and to the extent that the patent or copyright is utilized by the payer in a state in which the taxpayer is not taxable and the taxpayer's commercial domicile is in this state.
(B) A patent is utilized in a state to the extent that it is employed in production, fabrication, manufacturing or other processing in the state or to the extent that a patented product is produced in the state. If the basis of receipts from patent royalties does not permit allocation to states or if the accounting procedures do not reflect states of utilization, the patent is utilized in the state in which the taxpayer's commercial domicile is located.
(C) A copyright is utilized in a state to the extent that printing or other publication originates in the state. If the basis of receipts from copyright royalties does not permit allocation to states or if the accounting procedures do not reflect states of utilization, the copyright is utilized in the state in which the taxpayer's commercial domicile is located.
(5) Corporate partner's distributive share. --
(A) Persons carrying on business as partners in a partnership, as defined in Section 761 of the Internal Revenue Code of 1986, as amended, are liable for income tax only in their separate or individual capacities.
(B) A corporate partner's distributive share of income, gain, loss, deduction or credit of a partnership shall be modified as provided in section six of this article for each partnership. For taxable years beginning on or after the thirty-first day of December, one thousand nine hundred ninety-eight, the distributive share shall then be allocated and apportioned as provided in this section using the partnership's property, payroll and sales factors. The sum of that portion of the distributive share allocated and apportioned to this state shall then be treated as distributive share allocated to this state; and that portion of distributive share allocated or apportioned outside this state shall be treated as distributive share allocated outside this state, unless the taxpayer requests or the Tax Commissioner, under subsection (h) of this section requires that the distributive share be treated differently.
(C) This subdivision shall be null and void and of no force or effect for tax years beginning on or after the first day of January, two thousand nine.
(e) Business activities partially within and partially without this state; apportionment of business income. -- All net income, after deducting those items specifically allocated under subsection (d) of this section, shall be apportioned to this state by multiplying the net income by a fraction, the numerator of which is the property factor plus the payroll factor plus two times the sales factor and the denominator of which is four, reduced by the number of factors, if any, having no denominator.
(1) Property factor. -- The property factor is a fraction, the numerator of which is the average value of the taxpayer's real and tangible personal property owned or rented and used by it in this state during the taxable year and the denominator of which is the average value of all the taxpayer's real and tangible personal property owned or rented and used by the taxpayer during the taxable year, which is reported on Schedule L Federal Form 1120, plus the average value of all real and tangible personal property leased and used by the taxpayer during the taxable year.
(2) Value of property. -- Property owned by the taxpayer shall be valued at its original cost, adjusted by subsequent capital additions or improvements thereto and partial disposition thereof, by reason of sale, exchange, abandonment, etc.: Provided, That where records of original cost are unavailable or cannot be obtained without unreasonable expense, property shall be valued at original cost as determined under rules of the Tax Commissioner. Property rented by the taxpayer from others shall be valued at eight times the annual rental rate. The term "net annual rental rate" is the annual rental paid, directly or indirectly, by the taxpayer, or for its benefit, in money or other consideration for the use of property and includes:
(A) Any amount payable for the use of real or tangible personal property, or any part of the property, whether designated as a fixed sum of money or as a percentage of sales, profits or otherwise.
(B) Any amount payable as additional rent or in lieu of rents, such as interest, taxes, insurance, repairs or any other items which are required to be paid by the terms of the lease or other arrangement, not including amounts paid as service charges, such as utilities, janitor services, etc. If a payment includes rent and other charges unsegregated, the amount of rent shall be determined by consideration of the relative values of the rent and the other items.
(3) Movable property. -- The value of movable tangible personal property used both within and without this state shall be included in the numerator to the extent of its utilization in this state. The extent of the utilization shall be determined by multiplying the original cost of the property by a fraction, the numerator of which is the number of days of physical location of the property in this state during the taxable period and the denominator of which is the number of days of physical location of the property everywhere during the taxable year. The number of days of physical location of the property may be determined on a statistical basis or by other reasonable method acceptable to the Tax Commissioner.
(4) Leasehold improvements. -- Leasehold improvements shall, for purposes of the property factor, be treated as property owned by the taxpayer regardless of whether the taxpayer is entitled to remove the improvements or the improvements revert to the lessor upon expiration of the lease. Leasehold improvements shall be included in the property factor at their original cost.
(5) Average value of property. -- The average value of property shall be determined by averaging the values at the beginning and ending of the taxable year: Provided, That the Tax Commissioner may require the averaging of monthly values during the taxable year if substantial fluctuations in the values of the property exist during the taxable year, or where property is acquired after the beginning of the taxable year, or is disposed of, or whose rental contract ceases, before the end of the taxable year.
(6) Payroll factor. -- The payroll factor is a fraction, the numerator of which is the total compensation paid in this state during the taxable year by the taxpayer for compensation and the denominator of which is the total compensation paid by the taxpayer during the taxable year, as shown on the taxpayer's federal income tax return as filed with the Internal Revenue Service, as reflected in the schedule of wages and salaries and that portion of cost of goods sold which reflects compensation or as shown on a pro forma return.
(7) Compensation. -- The term "compensation" means wages, salaries, commissions and any other form of remuneration paid to employees for personal services. Payments made to an independent contractor or to any other person not properly classifiable as an employee shall be excluded. Only amounts paid directly to employees are included in the payroll factor. Amounts considered as paid directly to employees include the value of board, rent, housing, lodging and other benefits or services furnished to employees by the taxpayer in return for personal services, provided the amounts constitute income to the recipient for federal income tax purposes.
(8) Employee. -- The term "employee" means:
(A) Any officer of a corporation; or
(B) Any individual who, under the usual common-law rule applicable in determining the employer-employee relationship, has the status of an employee.
(9) Compensation. -- Compensation is paid or accrued in this state if:
(A) The employee's service is performed entirely within this state; or
(B) The employee's service is performed both within and without this state, but the service performed without the state is incidental to the individual's service within this state. The word "incidental" means any service which is temporary or transitory in nature or which is rendered in connection with an isolated transaction; or
(C) Some of the service is performed in this state and:
(i) The employee's base of operations or, if there is no base of operations, the place from which the service is directed or controlled is in the state; or
(ii) The base of operations or the place from which the service is directed or controlled is not in any state in which some part of the service is performed, but the employee's residence is in this state.
The term "base of operations" is the place of more or less permanent nature from which the employee starts his or her work and to which he or she customarily returns in order to receive instructions from the taxpayer or communications from his or her customers or other persons or to replenish stock or other materials, repair equipment or perform any other functions necessary to the exercise of his or her trade or profession at some other point or points. The term "place from which the service is directed or controlled" refers to the place from which the power to direct or control is exercised by the taxpayer.
(10) Sales factor. -- The sales factor is a fraction, the numerator of which is the gross receipts of the taxpayer derived from transactions and activity in the regular course of its trade or business in this state during the taxable year (business income), less returns and allowances. The denominator of the fraction is the total gross receipts derived by the taxpayer from transactions and activity in the regular course of its trade or business during the taxable year (business income) and reflected in its gross income reported and as appearing on the taxpayer's Federal Form 1120 and consisting of those certain pertinent portions of the (gross income) elements set forth: Provided, That if either the numerator or the denominator includes interest or dividends from obligations of the United States government which are exempt from taxation by this state, the amount of such interest and dividends, if any, shall be subtracted from the numerator or denominator in which it is included.
(11) Allocation of sales of tangible personal property. --
(A) Sales of tangible personal property are in this state if:
(i) The property is received in this state by the purchaser, other than the United States government, regardless of the f.o.b. point or other conditions of the sale. In the case of delivery by common carrier or other means of transportation, the place at which the property is ultimately received after all transportation has been completed is the place at which the property is received by the purchaser. Direct delivery in this state, other than for purposes of transportation, to a person or firm designated by the purchaser, is delivery to the purchaser in this state and direct delivery outside this state to a person or firm designated by the purchaser is not delivery to the purchaser in this state, regardless of where title passes or other conditions of sale; or
(ii) The property is shipped from an office, store, warehouse, factory or other place of storage in this state and the purchaser is the United States government.
(B) All other sales of tangible personal property delivered or shipped to a purchaser within a state in which the taxpayer is not taxed, as defined in subsection (b) of this section, shall be excluded from the denominator of the sales factor.
(12) Allocation of other sales. -- Sales, other than sales of tangible personal property, are in this state if:
(A) The income-producing activity is performed in this state; or
(B) The income-producing activity is performed both in and outside this state and a greater proportion of the income-producing activity is performed in this state than in any other state, based on costs of performance; or
(C) The sale constitutes business income to the taxpayer, or the taxpayer is a financial organization not having its commercial domicile in this state, and in either case the sale is a receipt described as attributable to this state in subsection (b), section seven-b of this article.
(13) Financial organizations and other taxpayers with business activities partially within and partially without this state. -- Notwithstanding anything contained in this section to the contrary, in the case of financial organizations and other taxpayers, not having their commercial domicile in this state, the rules of this subsection apply to the apportionment of income from their business activities except as expressly otherwise provided in subsection (b), section seven-b of this article.
(f) Income-producing activity. -- The term "income-producing activity" applies to each separate item of income and means the transactions and activity directly engaged in by the taxpayer in the regular course of its trade or business for the ultimate purpose of obtaining gain or profit. The activity does not include transactions and activities performed on behalf of the taxpayer, such as those conducted on its behalf by an independent contractor. "Income-producing activity" includes, but is not limited to, the following:
(1) The rendering of personal services by employees with utilization of tangible and intangible property by the taxpayer in performing a service;
(2) The sale, rental, leasing, licensing or other use of real property;
(3) The sale, rental, leasing, licensing or other use of tangible personal property; or
(4) The sale, licensing or other use of intangible personal property.
The mere holding of intangible personal property is not, in itself, an income-producing activity: Provided, That the conduct of the business of a financial organization is an income-producing activity.
(g) Cost of performance. -- The term "cost of performance" means direct costs determined in a manner consistent with generally accepted accounting principles and in accordance with accepted conditions or practices in the trade or business of the taxpayer.
(h) Other methods of allocation and apportionment. --
(1) General. -- If the allocation and apportionment provisions of subsections (d) and (e) of this section do not fairly represent the extent of the taxpayer's business activities in this state, the taxpayer may petition for or the Tax Commissioner may require, in respect to all or any part of the taxpayer's business activities, if reasonable:
(A) Separate accounting;
(B) The exclusion of one or more of the factors;
(C) The inclusion of one or more additional factors which will fairly represent the taxpayer's business activity in this state; or
(D) The employment of any other method to effectuate an equitable allocation or apportionment of the taxpayer's income. The petition shall be filed no later than the due date of the annual return for the taxable year for which the alternative method is requested, determined without regard to any extension of time for filing the return and the petition shall include a statement of the petitioner's objections and of the alternative method of allocation or apportionment as it believes to be proper under the circumstances with ~~such~~ detail and proof as the Tax Commissioner ~~may require~~ requires.
(2) Alternative method for public utilities. -- If the taxpayer is a public utility and if the allocation and apportionment provisions of subsections (d) and (e) of this section do not fairly represent the taxpayer's business activities in this state, the taxpayer may petition for, or the Tax Commissioner may require, as an alternative to the other methods provided ~~for~~ in subdivision (1) of this subsection, the allocation and apportionment of the taxpayer's net income in accordance with any system of accounts prescribed by the Public Service Commission of this state pursuant to the provisions of section eight, article two, chapter twenty-four of this code: Provided, That the allocation and apportionment provisions of the system of accounts fairly represent the extent of the taxpayer's business activities in this state for the purposes of the tax imposed by this article.
(3) Burden of proof. -- In any proceeding before the Tax Commissioner or in any court in which employment of one of the methods of allocation or apportionment provided ~~for~~ in subdivision (1) or (2) of this subsection is sought, on the grounds that the allocation and apportionment provisions of subsections (d) and (e) of this section do not fairly represent the extent of the taxpayer's business activities in this state, the burden of proof is:
(A) If the Tax Commissioner seeks employment of one of the methods, on the Tax Commissioner; or
(B) If the taxpayer seeks employment of one of the other methods, on the taxpayer.
~~(4) For tax years beginning on or after the first day of January, two thousand nine, the provisions of sections seven-a and seven-b of this article shall be null and void and of no force or effect.~~
§11-24-7b. Special apportionment rules - financial organizations.
(a) General. -- The Legislature hereby finds that the general formula set forth in section seven of this article for apportioning the business income of corporations taxable in this state as well as in another state is inappropriate for use by financial organizations due to the particular characteristics of those organizations and the manner in which their business is conducted. Accordingly, the general formula set forth in section seven of this article may not be used to apportion the business income of ~~such~~ financial organizations, which shall use only the apportionment formula and methods set forth in this section.
(b) West Virginia financial organizations taxable in another state. -- The West Virginia taxable income of a financial organization that has its commercial domicile in this state and which is taxable in another state shall be the sum of: (1) The nonbusiness income component of its adjusted federal taxable income for the taxable year which is allocated to this state as provided in subsection (d), section seven of this article; plus (2) the ~~total amount of the business income component of its adjusted federal taxable income for the taxable year, without apportionment, regardless of where such business income was derived~~ business income component of its adjusted federal taxable income for the taxable year which is apportioned to this state as provided in this section. ~~Provided,~~ ~~That such financial organization shall be allowed as a credit against its tax liability under this article the credit described in section twenty-four of this article~~
(c) Out-of-state financial organizations with business activities in this state. -- The West Virginia taxable income of a financial organization that does not have its commercial domicile in this state but which regularly engages in business in this state shall be the sum of: (1) The nonbusiness income component of its adjusted federal taxable income for the taxable year which is allocated to this state as provided in subsection (d), section seven of this article; plus (2) the business income component of its adjusted federal taxable income for the taxable year which is apportioned to this state as provided in this section.
(d) Engaging in business - nexus presumptions and exclusions. -- A financial organization that has its commercial domicile in another state is presumed to be regularly engaging in business in this state if during any year it obtains or solicits business with twenty or more persons within this state, or if the sum of the value of its gross receipts attributable to sources in this state equals or exceeds one hundred thousand dollars. However, gross receipts from the following types of property, as well as those contacts with this state reasonably and exclusively required to evaluate and complete the acquisition or disposition of the property, the servicing of the property or the income from it, the collection of income from the property or the acquisition or liquidation of collateral relating to the property shall not be a factor in determining whether the owner is engaging in business in this state:
(1) An interest in a real estate mortgage investment conduit, a real estate investment trust or a regulated investment company;
(2) An interest in a loan backed security representing ownership or participation in a pool of promissory notes or certificates of interest that provide for payments in relation to payments or reasonable projections of payments on the notes or certificates;
(3) An interest in a loan or other asset from which the interest is attributed to a consumer loan, a commercial loan or a secured commercial loan and in which the payment obligations were solicited and entered into by a person that is independent, and not acting on behalf, of the owner;
(4) An interest in the right to service or collect income from a loan or other asset from which interest on the loan is attributed as a loan described in the previous paragraph and in which the payment obligations were solicited and entered into by a person that is independent, and not acting on behalf, of the owner; ~~and~~ or
(5) Any amounts held in an escrow or trust account with respect to property described above.
(e) Definitions. -- For purposes of this section:
(1) "Commercial domicile" ~~See~~ has same meaning as that term is defined in section three-a of this article.
(2) "Deposit" means:
(A) The unpaid balance of money or its equivalent received or held by a financial organization in the usual course of business and for which it has given or it is obligated to give credit, either conditionally or unconditionally, to a commercial, checking, savings, time or thrift account whether or not advance notice is required to withdraw the credit funds, or which is evidenced by a certificate of deposit, thrift certificate, investment certificate or certificate of indebtedness, or other similar name, or a check or draft drawn against a deposit account and certified by the financial organization, or a letter of credit or a traveler's check on which the financial organization is primarily liable: Provided, That without limiting the generality of the term "money or its equivalent", any ~~such~~ account or instrument must be regarded as evidencing the receipt of the equivalent of money when credited or issued in exchange for checks or drafts or for a promissory note upon which the person obtaining any ~~such~~ credit or instrument is primarily or secondarily liable or for a charge against a deposit account or in settlement of checks, drafts or other instruments forwarded to ~~such~~ the bank for collection;
(B) Trust funds received or held by ~~such~~ the financial organization, whether held in the trust department or held or deposited in any other department of ~~such~~ the financial organization;
(C) Money received or held by a financial organization or the credit given for money or its equivalent received or held by a financial organization in the usual course of business for a special or specific purpose, regardless of the legal relationship thereby established, including, without being limited to, escrow funds, funds held as security for an obligation due the financial organization or other, including funds held as dealers' reserves or for securities loaned by the financial organization, funds deposited by a debtor to meet maturing obligations, funds deposited as advance payment on subscriptions to United States government securities, funds held for distribution or purchase of securities, funds held to meet its acceptances or letters of credit, and withheld taxes: Provided, That there shall not be included funds which are received by the financial organization for immediate application to the reduction of an indebtedness to the receiving financial organization, or under condition that the receipt thereof immediately reduces or extinguishes ~~such~~ an indebtedness;
(D) Outstanding drafts, including advice or authorization to charge a financial organization's balance in another ~~such~~ organization, cashier's checks, money orders or other officer's checks issued in the usual course of business for any purpose, but not including those issued in payment for services, dividends or purchases or other costs or expenses of the financial organization itself; and
(E) Money or its equivalent held as a credit balance by a financial organization on behalf of its customer if ~~such~~ the entity is engaged in soliciting and holding ~~such~~ balances in the regular course of its business.
(3) "Financial organization" ~~See~~ has the same meaning as that term is defined in section three-a of this article~~; and~~.
(4) "Sales" means, for purposes of apportionment under this section, the gross receipts of a financial organization included in the gross receipts factor described in subsection (g) of this section, regardless of their source.
(f) Apportionment rules. -- A financial organization ~~not having its commercial domicile in this state~~ which regularly engages in business both within and without this state shall apportion the business income component of its federal taxable income, after adjustment as provided in section six of this article, by multiplying the amount thereof by the special gross receipts factor determined as provided in subsection (g) of this section.
(g) Special gross receipts factor. -- The gross receipts factor is a fraction, the numerator of which is the total gross receipts of the taxpayer from sources within this state during the taxable year and the denominator of which is the total gross receipts of the taxpayer wherever earned during the taxable year: Provided, That neither the numerator nor the denominator of the gross receipts factor shall include receipts from obligations described in paragraphs (A), (B), (C) and (D), subdivision (1), subsection (f), section six of this article.
(1) Numerator. -- The numerator of the gross receipts factor shall include, in addition to items otherwise includable in the sales factor under section seven of this article, the following:
(A) Receipts from the lease or rental of real or tangible personal property whether as the economic equivalent of an extension of credit or otherwise if the property is located in this state;
(B) Interest income and other receipts from assets in the nature of loans which are secured primarily by real estate or tangible personal property if ~~such~~ the security property is located in the state. In the event that ~~such~~ the security property is also located in one or more other states, ~~such~~ receipts shall be presumed to be from sources within this state, subject to rebuttal based upon factors described in rules to be ~~promulgated~~ proposed by the Tax Commissioner, including the factor that the proceeds of any ~~such~~ loans were applied and used by the borrower entirely outside of this state;
(C) Interest income and other receipts from consumer loans which are unsecured or are secured by intangible property that are made to residents of this state, whether at a place of business, by traveling loan officer, by mail, by telephone or other electronic means or otherwise;
(D) Interest income and other receipts from commercial loans and installment obligations which are unsecured or are secured by intangible property if and to the extent that the borrower or debtor is a resident of or is domiciled in this state: Provided, That ~~such~~ receipts are presumed to be from sources in this state and ~~such~~ the presumption may be overcome by reference to factors described in rules to be ~~promulgated~~ proposed by the Tax Commissioner, including the factor that the proceeds of any ~~such~~ loans were applied and used by the borrower entirely outside of this state;
(E) Interest income and other receipts from a financial organization's syndication and participation in loans, under the rules set forth in ~~items~~ paragraphs (A) through (D),inclusive, ~~above~~ of this subdivision;
(F) Interest income and other receipts, including service charges, from financial institution credit card and travel and entertainment credit card receivables and credit card holders' fees if the borrower or debtor is a resident of this state or if the billings for any ~~such~~ receipts are regularly sent to an address in this state;
(G) Merchant discount income derived from financial institution credit card holder transactions with a merchant located in this state. In the case of merchants located within and without this state, only receipts from merchant discounts attributable to sales made from locations within this state shall be attributed to this state. It shall be presumed, subject to rebuttal, that the location of a merchant is the address shown on the invoice submitted by the merchant to the taxpayer;
(H) Gross receipts from the performance of services are attributed to this state if:
(i) The service receipts are loan-related fees, including loan servicing fees, and the borrower resides in this state, except that, at the taxpayer's election, receipts from loan-related fees which are either: (I) "Pooled" or aggregated for collective financial accounting treatment; or (II) manually written as nonrecurring extraordinary charges to be processed directly to the general ledger may either be attributed to a state based upon the borrowers' residences or upon the ratio that total interest sourced to that state bears to total interest from all sources;
(ii) The service receipts are deposit-related fees and the depositor resides in this state, except that, at the taxpayer's election, receipts from deposit-related fees which are either: (I) "Pooled" or aggregated for collective financial accounting treatment; or (II) manually written as nonrecurring extraordinary charges to be processed directly to the general ledger may either be attributed to a state based upon the depositors' residences or upon the ratio that total deposits sourced to that state bears to total deposits from all sources;
(iii) The service receipt is a brokerage fee and the account holder is a resident of this state;
(iv) The service receipts are fees related to estate or trust services and the estate's decedent was a resident of this state immediately before death or the grantor who either funded or established the trust is a resident of this state; or
(v) The service receipt is associated with the performance of any other service not identified above and the service is performed for an individual resident of, or for a corporation or other business domiciled in, this state and the economic benefit of ~~such~~ service is received in this state;
(I) Gross receipts from the issuance of travelers' checks and money orders if ~~such~~ the checks and money orders are purchased in this state; and
(J) All other receipts not attributed by this rule to a state in which the taxpayer is taxable shall be attributed pursuant to the laws of the state of the taxpayer's commercial domicile.
(2) Denominator. -- The denominator of the gross receipts factor shall include all of the taxpayer's gross receipts from transactions of the kind included in the numerator, but without regard to their source or situs.
(h) Effective date. -- The provisions of this section enacted as chapter one hundred sixty-seven, Acts of the Legislature, one thousand nine hundred ninety-one, shall apply to all taxable years beginning on or after the first day of January, one thousand nine hundred ninety-one. Amendments to this section enacted in the year one thousand nine hundred ninety-six shall apply to taxable years beginning after the thirty-first day of December, one thousand nine hundred ninety-five. The amendments to this section, enacted in the year two thousand eight, shall apply to taxable years beginning after the thirty-first day of December, two thousand eight.
§11-24-9b. Limited tax credits - Financial organizations.
(a) Definitions.
For purposes of this section:
(1) "Adjusted base year tax liability" means the taxpayer's corporation net income tax liability under this article, for the tax year ending immediately on or before the thirty first day of December, two thousand eight, before application of any surtax, alternative minimum tax or credit allowed, authorized or imposed under this chapter, adjusted by:
(A) Adding the base year liabilities, if any, of affiliates, subsidiaries and related entities that are included in the taxpayer's current year combined report, but which were not included in the taxpayer's base year filing configuration, and
(B) Subtracting the base year liabilities, if any, of affiliates, subsidiaries and related entities that were included in the taxpayer's base year filing configuration, but that are not included in the taxpayer's current year combined report.
(2) "Adjusted primary tax liability" means the current year's liability of the taxpayer under this article before application of any surtax, alternative minimum tax or credit allowed, authorized or imposed under this chapter for the current tax year:
(3) "Financial organization" means a financial organization as defined in section three-a of this article.
(b) Credit authorized. -- A credit shall be allowed against the adjusted primary tax liability of every financial organization under this article, in an amount equal to a portion of the increase in the adjusted primary tax liability of the financial organization under this article for the taxable year, over the amount of the adjusted primary tax liability of the financial organization under this article for the taxable year beginning immediately on or after the first day of January, two thousand eight. The portion of the increase in the adjusted primary tax liability under this article that shall be allowed as a credit under this section is eighty percent for taxable years beginning on an after the first day of January, two thousand nine; sixty percent for taxable years beginning on and after the first day of January, two thousand ten; forty percent for taxable years beginning on and after the first day of January, two thousand eleven; twenty percent for taxable years beginning on and after the first day of January, two thousand twelve; ten percent for taxable years beginning on and after the first day of January, two thousand thirteen; and zero percent for taxable years beginning on and after the first day of January, two thousand fourteen; Provided, that the credit allowed by this section may not be used to reduce the adjusted primary tax liability of any financial organization under this article in any taxable year below one million dollars.
§11-24-13a. Method of filing for business taxes.
(a) Privilege to file consolidated return. --
(1) An affiliated group of corporations as defined for purposes of filing a consolidated federal income tax return shall, subject to the provisions of this section and in accordance with any regulations prescribed by the Tax Commissioner, have the privilege of filing a consolidated return with respect to the tax imposed by this article for the taxable year in lieu of filing separate returns. The making of a consolidated return shall be upon the condition that all corporations which at any time during the taxable year have been members of the affiliated group are included in ~~such~~ the return and consent to the filing of ~~such~~ the return. The filing of a consolidated return ~~shall be~~ is considered ~~as such~~ consent. When a corporation is a member of an affiliated group for a fractional part of the year, the consolidated return shall include the income of ~~such~~ the corporation for that part of the year during which it is a member of the affiliated group.
(2) For tax years beginning on and after the first day of January, two thousand nine, the provisions of this subsection are null and void and of no further force or effect.
(b) Election binding. --
(1) If an affiliated group of corporations elects to file a consolidated return under this article for any taxable year ending after the thirtieth day of June, one thousand nine hundred eighty-seven, ~~such~~ the election once made shall not be revoked for any subsequent taxable year without the written approval of the Tax Commissioner consenting to the revocation.
(2) For tax years beginning on and after the first day of January, two thousand nine, the provisions of this subsection are null and void and of no further force or effect.
(c) Consolidated return - financial organizations. --
An affiliated group that includes one or more financial organizations may elect under this section to file a consolidated return when that affiliated group complies with all of the following rules:
(1) The affiliated group of which the financial organization is a member must file a federal consolidated income tax return for the taxable year.
(2) All members of the affiliated group included in the federal consolidated return must consent to being included in the consolidated return filed under this article. The filing of a consolidated return under this article is conclusive proof of ~~such~~ consent.
(3) The West Virginia taxable income of the affiliated group shall be the sum of:
(A) The pro forma West Virginia taxable income of all financial organizations having their commercial domicile in this state that are included in the federal consolidated return, as shown on a combined pro forma West Virginia return prepared for ~~such~~ the financial organizations; plus
(B) The pro forma West Virginia taxable income of all financial organizations not having their commercial domicile in this state that are included in the federal consolidated return, as shown on a combined pro forma West Virginia return prepared for ~~such~~ the financial organizations; plus
(C) The pro forma West Virginia taxable income of all other members included in the federal consolidated income tax return, as shown on a combined pro forma West Virginia return prepared for all ~~such~~ nonfinancial organization members, except that income, income adjustments and exclusions, apportionment factors and other items considered when determining tax liability shall not be included in the pro forma return prepared under this paragraph for a member that is totally exempt from tax under section five of this article or for a member that is subject to a different special industry apportionment rule provided ~~for~~ in this article. When a different special industry apportionment rule applies, the West Virginia taxable income of a ~~member(s)~~ member subject to that special industry apportionment rule ~~shall be~~ is determined on a separate pro forma West Virginia return for the ~~member(s)~~ member subject to that special industry rule and the West Virginia taxable income so determined shall be included in the consolidated return.
(4) The West Virginia consolidated return is prepared in accordance with regulations of the Tax Commissioner promulgated as provided in article three, chapter twenty-nine-a of this code.
(5) The filing of a consolidated return does not distort taxable income. In any proceeding, the burden of proof that taxpayer's method of filing does not distort taxable income shall be upon the taxpayer.
(6) For tax years beginning on and after the first day of January, two thousand nine, the provisions of this subsection are null and void and of no further force or effect.
(d) Combined return. --
(1) A combined return may be filed under this article by a unitary group, including a unitary group that includes one or more financial organizations, only pursuant to the prior written approval of the Tax Commissioner. A request for permission to file a combined return must be filed on or before the statutory due date of the return, determined without inclusion of any extension of time to file the return. Permission to file a combined return may be granted by the Tax Commissioner only when taxpayer submits evidence that conclusively establishes that failure to allow the filing of a combined return will result in an unconstitutional distortion of taxable income. When permission to file a combined return is granted, combined filing will be allowed for the tax years stated in the Tax Commissioner's letter. The combined return must be filed in accordance with regulations of the Tax Commissioner promulgated in accordance with article three, chapter twenty-nine-a of this code.
(2) For tax years beginning on and after the first day of January, two thousand nine, the provisions of this subsection are null and void and of no further force or effect.
(e) Method of filing under this article deemed controlling for purposes of other business taxes articles. --
Notwithstanding the provisions of section nine-a, article twenty-three of this chapter or any other provision of this code to the contrary, the taxpayer shall file on the same basis under article twenty-three of this chapter as ~~such~~ the taxpayer files under this article for the taxable year.
(f) Regulations. --
The Tax Commissioner shall prescribe ~~such~~ regulations as he ~~may deem~~ or she considers necessary in order that the tax liability of any affiliated group or combined group of corporations filing a consolidated return, or of any unitary group of corporations filing a combined return, and of each corporation in the affiliated or unitary group, both during and after the period of affiliation, may be returned, determined, computed, assessed, collected and adjusted in ~~such~~ a manner as the Tax Commissioner ~~deems~~ considers necessary to clearly reflect the income tax liability and the income factors necessary for the determination of ~~such~~ liability and in order to prevent avoidance of ~~such~~ tax liability.
(g) Computation and payment of tax. --
In any case in which a consolidated or combined return is filed, or required to be filed, the tax due under this article from the affiliated, combined or unitary group shall be determined, computed, assessed, collected and adjusted in accordance with regulations prescribed by the Tax Commissioner, in effect on the last day prescribed by section thirteen of this article for the filing of ~~such~~ the return, and such affiliated, combined or unitary group, as the case may be, shall be treated as the taxpayer. However, when any member of an affiliated, combined or unitary group that files a consolidated or combined return under this article is allowed to claim credit against its tax liability under this article for payment of any other tax, the amount of credit allowed may not exceed that member's proportionate share of the affiliated, combined or unitary group's precredit tax liability under this article, as shown on its pro forma return.
(h) Consolidated or combined return may be required. --
The Tax Commissioner may require any person or corporation to make and file a separate return or to make and file a composite, unitary, consolidated or combined return, as the case may be, in order to clearly reflect the taxable income of such corporations.
(i) Effective date. --
The amendments to this section made by chapter one hundred seventy-nine, Acts of the Legislature in the year one thousand nine hundred ninety, shall apply to all taxable years ending after the eighth day of March, one thousand nine hundred ninety. Amendments to this article enacted by this act in the year one thousand nine hundred ninety-six shall apply to taxable years beginning on or after the first day of January, one thousand nine hundred ninety-six, except that financial organizations that are part of an affiliated group may elect, after the effective date of this act, to file a consolidated return prepared in accordance with the provisions of this section, as amended, and subject to applicable statutes of limitation, for taxable years beginning on or after the first day of January, one thousand nine hundred ninety-one, but before the first day of January, one thousand nine hundred ninety-six, notwithstanding provisions then in effect prohibiting out-of-state financial organizations from filing consolidated returns for those years: Provided, That when the statute of limitation on filing an amended return for any of those years expires before the first day of July, one thousand nine hundred ninety-six, the consolidated return for ~~such~~ that year, if filed, must be filed by said first day of July.
(j) Combined reporting required. --
For tax years beginning on and after the first day of January, two thousand nine, and notwithstanding the provisions of section nine-a, article twenty-three of this chapter or any other provision of this code to the contrary, any taxpayer engaged in a unitary business with one or more other corporations shall file a combined report which includes the income, determined under section thirteen-c or thirteen-d of this article, and the allocation and apportionment of income provisions of this article, of all corporations that are members of the unitary business, and ~~such~~ other information as ~~may be~~ required by the Tax Commissioner. Notwithstanding any provision to the contrary in this article, the income of an insurance company, the allocation or apportionment of income related thereto and the apportionment factors of an insurance company shall not be included in a combined report filed under this article unless specifically required to be included by the Tax Commissioner.
(k) Combined reporting at Tax Commissioner's discretion. --
(1) The Tax Commissioner may require the combined report to include the income and associated apportionment factors of any persons that are not included pursuant to subsection (j) of this section, but that are members of a unitary business, in order to reflect proper apportionment of income of the entire unitary businesses. ~~The Tax Commissioner may require combination of persons that are not or would not be doing business in this state pursuant to this section.~~
(2) If the Tax Commissioner determines that the reported income or loss of a taxpayer engaged in a unitary business with any person not included pursuant to subsection (j) of this section represents an avoidance or evasion of tax by ~~such~~ the taxpayer, the Tax Commissioner may, on a case-by-case basis, require all or any part of the income and associated apportionment factors ~~of such person~~ be included in the taxpayer's combined report.
(3) With respect to inclusion of associated apportionment factors pursuant to this section, the Tax Commissioner may require the exclusion of any one or more of the factors, the inclusion of one or more additional factors which will fairly represent the taxpayer's business activity in this state, or the employment of any other method to effectuate a proper reflection of the total amount of income subject to apportionment and an equitable allocation and apportionment of the taxpayer's income.

§11-24-13c. Determination of taxable income or loss using combined report.

(a) The use of a combined report does not disregard the separate identities of the taxpayer members of the combined group. Each taxpayer member is responsible for tax based on its taxable income or loss apportioned or allocated to this state, which shall include, in addition to other types of income, the taxpayer member's apportioned share of business income of the combined group, where business income of the combined group is calculated as a summation of the individual net business incomes of all members of the combined group. A member's net business income is determined by removing all but business income, expense and loss from that member's total income, as provided in this section and section thirteen-d of this article.
(b) Components of income subject to tax in this state; application of tax credits and post-apportionment deductions. --
(1) Each taxpayer member is responsible for tax based on its taxable income or loss apportioned or allocated to this state, which shall include:
(A) Its share of any business income apportionable to this state of each of the combined groups of which it is a member, determined under subsection (c) of this section;
(B) Its share of any business income apportionable to this state of a distinct business activity conducted within and without the state wholly by the taxpayer member, determined under the provisions for apportionment of business income set forth in this article;
(C) Its income from a business conducted wholly by the taxpayer member entirely within the state;
(D) Its income sourced to this state from the sale or exchange of capital or assets, and from involuntary conversions, as determined under subsection (g), section thirteen-d of this article;
(E) Its nonbusiness income or loss allocable to this state, determined under the provisions for allocation of nonbusiness income set forth in this article;
(F) Its income or loss allocated or apportioned in an earlier year, required to be taken into account as state source income during the income year, other than a net operating loss; and
(G) Its net operating loss carryover. If the taxable income computed pursuant to this section and section thirteen-d of this article results in a loss for a taxpayer member of the combined group, that taxpayer member has a West Virginia net operating loss, subject to the net operating loss limitations, and carryover provisions of this article. This West Virginia net operating loss is applied as a deduction in a prior or subsequent year only if that taxpayer has West Virginia source positive net income, whether or not the taxpayer is or was a member of a combined reporting group in the prior or subsequent year: Provided, That net operating loss carryovers that were earned during a tax year in which the taxpayer filed a consolidated return under this article may be applied as a deduction from the West Virginia taxable income of any member of the taxpayer's controlled group until the net operating loss carryover is used or expires pursuant to the net operating loss provisions of this article.
(2) Except where otherwise provided, no tax credit or post-apportionment deduction earned by one member of the group, but not fully used by or allowed to that member, may be used, in whole or in part, by another member of the group or applied, in whole or in part, against the total income of the combined group; and a post-apportionment deduction carried over into a subsequent year as to the member that incurred it, and available as a deduction to that member in a subsequent year, will be considered in the computation of the income of that member in the subsequent year regardless of the composition of that income as apportioned, allocated or wholly within this state: Provided, That unused and unexpired economic development tax credits that were earned during a tax year in which the taxpayer filed a consolidated return under this article may, if otherwise allowed within the statutory limitations applicable to the tax credit, be used, in whole or in part, against taxes imposed by this article on any member of the taxpayer's combined group to the extent the credits would have been allowed had the taxpayer continued to file a consolidated return. For purposes of this section the term "economic development tax credit" means, and is limited to, a tax credit asserted on a tax return under article thirteen-c, thirteen-d, thirteen-e, thirteen-f, thirteen-g, thirteen-j, thirteen-q, thirteen-r or thirteen-s of this chapter or under article one, chapter five-e of this code.
(c) Determination of taxpayer's share of the business income of a combined group apportionable to this state. --
The taxpayer's share of the business income apportionable to this state of each combined group of which it is a member shall be the product of:
(1) The business income of the combined group, determined under section thirteen-d of this article; and
(2) The taxpayer member's apportionment percentage, determined in accordance with this article, including in the property, payroll and sales factor numerators the taxpayer's property, payroll and sales, respectively, associated with the combined group's unitary business in this state and including in the denominator the property, payroll and sales of all members of the combined group, including the taxpayer, which property, payroll and sales are associated with the combined group's unitary business wherever located.
The property, payroll and sales of a partnership shall be included in the determination of the partner's apportionment percentage in proportion to a ratio the numerator of which is the amount of the partner's distributive share of partnership's unitary income included in the income of the combined group in accordance with section thirteen-d of this article and the denominator of which is the amount of the partnership's total unitary income.

§11-24-13d. Determination of the business income of the combined group.

The business income of a combined group is determined as follows:
(a) From the total income of the combined group, determined under subsection (b) of this section, subtract any income and add any expense or loss, other than the business income, expense or loss of the combined group.
(b) Except as otherwise provided, the total income of the combined group is the sum of the income of each member of the combined group determined under federal income tax laws, as adjusted for state purposes, as if the member were not consolidated for federal purposes. The income of each member of the combined group shall be determined as follows:
(1) For any member incorporated in the United States, or included in a consolidated federal corporate income tax return, the income to be included in the total income of the combined group shall be the taxable income for the corporation after making allowable adjustments under this article.
(2) For any member not included in subdivision (1) of this subsection, the income to be included in the total income of the combined group shall be determined as follows:
(A) A profit and loss statement shall be prepared for each foreign branch or corporation in the currency in which the books of account of the branch or corporation are regularly maintained.
(B) Adjustments shall be made to the profit and loss statement to conform it to the accounting principles generally accepted in the United States for the preparation of such statements except as modified by this regulation.
(C) Adjustments shall be made to the profit and loss statement to conform it to the tax accounting standards required by this article.
(D) Except as otherwise provided by regulation, the profit and loss statement of each member of the combined group, and the apportionment factors related thereto, whether United States or foreign, shall be translated into the currency in which the parent company maintains its books and records.
(E) Income apportioned to this state shall be expressed in United States dollars.
(3) In lieu of the procedures set forth in subdivision (2) of this subsection, and subject to the determination of the Tax Commissioner that it reasonably approximates income as determined under this article, any member not included in subdivision (1) of this subsection may determine its income on the basis of the consolidated profit and loss statement which includes the member and which is prepared for filing with the Securities and Exchange Commission by related corporations. If the member is not required to file with the Securities and Exchange Commission, the Tax Commissioner may allow the use of the consolidated profit and loss statement prepared for reporting to shareholders and subject to review by an independent auditor. If above statements do not reasonably approximate income as determined under this article, the Tax Commissioner may accept those statements with appropriate adjustments to approximate that income.
(c) If a unitary business includes income from a partnership, the income to be included in the total income of the combined group shall be the member of the combined group's direct and indirect distributive share of the partnership's unitary business income.
(d) All dividends paid by one to another of the members of the combined group shall, to the extent those dividends are paid out of the earnings and profits of the unitary business included in the combined report, in the current or an earlier year, be eliminated from the income of the recipient. Except as otherwise provided, this provision shall not apply to dividends received from members of the unitary business which are not a part of the combined group. Except when specifically required by the Tax Commissioner to be included, all dividends paid by an insurance company directly or indirectly to a corporation that is part of a unitary business with the insurance company shall be deducted or eliminated from the income of the recipient of the dividend.
(e) Except as otherwise provided by regulation, business income from an intercompany transaction between members of the same combined group shall be deferred in a manner similar to 26 C. F. R. 1.1502-13. Upon the occurrence of any of the following events, deferred business income resulting from an intercompany transaction between members of a combined group shall be restored to the income of the seller and shall be apportioned as business income earned immediately before the event:
(1) The object of a deferred intercompany transaction is:
(A) Resold by the buyer to an entity that is not a member of the combined group;
(B) Resold by the buyer to an entity that is a member of the combined group for use outside the unitary business in which the buyer and seller are engaged; or
(C) Converted by the buyer to a use outside the unitary business in which the buyer and seller are engaged; or
(2) The buyer and seller are no longer members of the same combined group, regardless of whether the members remain unitary.
(f) A charitable expense incurred by a member of a combined group shall, to the extent allowable as a deduction pursuant to Internal Revenue Code Section 170, be subtracted first from the business income of the combined group, subject to the income limitations of that section applied to the entire business income of the group and any remaining amount shall then be treated as a nonbusiness expense allocable to the member that incurred the expense, subject to the income limitations of that section applied to the nonbusiness income of that specific member. Any charitable deduction disallowed under the foregoing rule, but allowed as a carryover deduction in a subsequent year, shall be treated as originally incurred in the subsequent year by the same member and the rules of this section shall apply in the subsequent year in determining the allowable deduction in that year.
(g) Gain or loss from the sale or exchange of capital assets, property described by Internal Revenue Code Section 1231(a)(3) and property subject to an involuntary conversion shall be removed from the total separate net income of each member of a combined group and shall be apportioned and allocated as follows:
(1) For each class of gain or loss (short term capital, long term capital, Internal Revenue Code Section 1231 and involuntary conversions) all members' business gain and loss for the class shall be combined without netting between ~~such~~ classes and each class of net business gain or loss separately apportioned to each member using the member's apportionment percentage determined under subsection (c), section thirteen-c of this article.
(2) Each taxpayer member shall then net its apportioned business gain or loss for all classes, including any such apportioned business gain and loss from other combined groups, against the taxpayer member's nonbusiness gain and loss for all classes allocated to this state, using the rules of Internal Revenue Code Sections 1222 and 1231, without regard to any of the taxpayer member's gains or losses from the sale or exchange of capital assets, Section 1231 property and involuntary conversions which are nonbusiness items allocated to another state.
(3) Any resulting state source income or loss, if the loss is not subject to the limitations of Internal Revenue Code Section 1211 of a taxpayer member produced by the application of the preceding subsections shall then be applied to all other state source income or loss of that member.
(4) Any resulting state source loss of a member that is subject to the limitations of Section 1211 shall be carried over by that member and shall be treated as state source short-term capital loss incurred by that member for the year for which the carryover applies.
(h) Any expense of one member of the unitary group which is directly or indirectly attributable to the nonbusiness or exempt income of another member of the unitary group shall be allocated to that other member as corresponding nonbusiness or exempt expense, as appropriate.

§11-24-13f. Water's-edge reporting mandated absent affirmative election to report based on worldwide unitary combined reporting basis; initiation and withdrawal of worldwide combined reporting election.

(a) Water's-edge ~~election~~ reporting. --
~~Taxpayer members of a unitary group that meet the requirements of~~ Absent an election under subsection (b) of this section ~~may elect~~ to report based upon a worldwide unitary combined reporting basis, taxpayer members of a unitary group shall determine each of their apportioned shares of the net business income or loss of the combined group ~~pursuant to~~ on a water's-edge ~~election~~ unitary combined reporting basis. ~~Under such election~~ In determining tax under this article and article twenty-three of this chapter on a water's-edge unitary combined reporting basis, taxpayer members shall take into account all or a portion of the income and apportionment factors of only the following members otherwise included in the combined group pursuant to section thirteen-a of this article:
(1) The entire income and apportionment factors of any member incorporated in the United States or formed under the laws of any state, the District of Columbia or any territory or possession of the United States;
(2) The entire income and apportionment factors of any member, regardless of the place incorporated or formed, if the average of its property, payroll and sales factors within the United States is twenty percent or more;
(3) The entire income and apportionment factors of any member which is a domestic international sales corporation as described in Internal Revenue Code Sections 991 to 994, inclusive; a foreign sales corporation as described in Internal Revenue Code Sections 921 to 927, inclusive; or any member which is an export trade corporation, as described in Internal Revenue Code Sections 970 to 971, inclusive;
(4) Any member not described in subdivision (1), (2) or (3) of this subsection shall include the portion of its income derived from or attributable to sources within the United States, as determined under the Internal Revenue Code without regard to federal treaties, and its apportionment factors related thereto; its business income which is effectively connected, or treated as effectively connected under the provisions of the Internal Revenue Code, with the conduct of a trade or business within the United States and, for that reason, subject to federal income tax;
(5) Any member that is a "controlled foreign corporation", as defined in Internal Revenue Code Section 957, to the extent of the income of that member that is defined in Section 952 of Subpart F of the Internal Revenue Code (Subpart F income) not excluding lower-tier subsidiaries' distributions of such income which were previously taxed, determined without regard to federal treaties, and the apportionment factors related to that income; any item of income received by a controlled foreign corporation shall be excluded if such income was subject to an effective rate of income tax imposed by a foreign country greater than ninety percent of the maximum rate of tax specified in Internal Revenue Code Section 11;
(6) Any member that earns more than twenty percent of its income, directly or indirectly, from intangible property or service-related activities that are deductible against the business income of other members of the ~~combined~~ water's-edge group, to the extent of that income and the apportionment factors related thereto; and
(7) The entire income and apportionment factors of any member that is doing business in a tax haven ~~where "doing business in a tax haven" is~~ defined as being engaged in activity sufficient for that tax haven jurisdiction to impose a tax under United States constitutional standards. If the member's business activity within a tax haven is entirely outside the scope of the laws, provisions and practices that cause the jurisdiction to meet the criteria set forth in the definition of a tax haven, the activity of the member shall be treated as not having been conducted in a tax haven.
(b) Initiation and withdrawal of election to report based on worldwide unitary combined reporting. --
(1) ~~A water's-edge election~~ An election to report West Virginia tax based on worldwide unitary combined reporting is effective only if made on a timely filed, original return for a tax year by every member of the unitary business subject to tax under this article. The Tax Commissioner shall develop rules and regulations governing the impact, if any, on the scope or application of a ~~water's-edge~~ worldwide unitary combined reporting election, including termination or deemed election, resulting from a change in the composition of the unitary group, the combined group, the taxpayer members and any other similar change.
(2) ~~Such~~ The election shall constitute consent to the reasonable production of documents and taking of depositions in accordance with the provisions of this code.
(3) In the discretion of the Tax Commissioner, a ~~water's-edge~~ worldwide unitary combined reporting election may be disregarded, in part or in whole, and the income and apportionment factors of any member of the taxpayer's unitary group may be included in or excluded from the combined report without regard to the provisions of this section, if any member of the unitary group fails to comply with any provision of this article. ~~or if a person otherwise not included in the water's-edge combined group was availed of with a substantial objective of avoiding state income tax~~
(4) In the discretion of the Tax Commissioner, the Tax Commissioner may mandate worldwide unitary combined reporting, in part or in whole, and the income and apportionment factors of any member of the taxpayer's unitary group may be included in or excluded from the combined report without regard to the provisions of this section, if any member of the unitary group fails to comply with any provision of this article or if a person otherwise not included in the water's-edge combined group was availed of with a substantial objective of avoiding state income tax.
~~(4)~~ (5) ~~A water's-edge~~ A worldwide unitary combined reporting election is binding for and applicable to the tax year it is made and all tax years thereafter for a period of ten years. It may be withdrawn or reinstituted after withdrawal, prior to the expiration of the ten-year period, only upon written request for reasonable cause based on extraordinary hardship due to unforeseen changes in state tax statutes, law or policy and only with the written permission of the Tax Commissioner. If the Tax Commissioner grants a withdrawal of election, he or she shall impose reasonable conditions as necessary to prevent the evasion of tax or to clearly reflect income for the election period prior to or after the withdrawal. Upon the expiration of the ten-year period, a taxpayer may withdraw from the ~~water's-edge~~ worldwide unitary combined reporting election. ~~Such withdrawal~~ Withdrawal must be made in writing within one year of the expiration of the election and is binding for a period of ten years, subject to the same conditions as applied to the original election. If no withdrawal is properly made, the ~~water's-edge~~ worldwide unitary combined reporting election shall be in place for an additional ten-year period, subject to the same conditions as applied to the original election.
(c) For purposes of determining the tax imposed by article twenty-three of this chapter, the term "income", as used in this section, shall be interpreted to mean the tax base or capital, as applicable, for purposes of the tax imposed under article twenty- three of this chapter.
§11-24-42. Effective date.
The provisions of this article as amended or added by this act enacted in the year two thousand eight shall ~~take effect on the first day of July, one thousand nine hundred eighty-eight, and~~ apply to all taxable years ~~ending after that date~~ beginning after the thirty-first day of December, two thousand eight: Provided, That if an effective date is expressly provided in ~~such~~ any provision, that specific effective date shall control in lieu of this general effective date provision.
The bill, as just amended, was again ordered to engrossment.
Engrossed Committee Substitute for Senate Bill No. 680 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 680) passed.
On motion of Senator McCabe, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for Senate Bill No. 680-- A Bill to repeal §11- 23-5b of the Code of West Virginia, 1931, as amended; to amend and reenact §11-13S-4 of said code; to amend and reenact §11-23-5a of said code; to amend said code by adding thereto a new section, designated §11-23-17b; to amend and reenact §11-24-3a, §11-24-4, §11-24-7, §11-24-7b, §11-24-13a, §11-24-13c, §11-24-13d, §11-24-13f and §11-24-42 of said code; and to amend said code by adding thereto two new sections, designated §11-24-3b and §11-24-9b, all relating to corporate net income tax and business franchise tax and combined reporting; specifying percentage of taxes subject to offset by manufacturing investment tax credit; providing definitions; providing for eligibility of financial organizations for tax credits; specifying amount of credit allowed; defining terms; specifying general meaning relating to the term "tax haven"; specifying imposition of tax and rates; specifying reductions of corporation net income tax rate; specifying nullity for designated provisions; specifying removal of nullity for designated provisions; specifying apportionment rules for financial organizations; specifying treatment of insurance companies; specifying method of filing; specifying application of designated net operating losses; specifying treatment of designated dividends; mandating reporting on water's-edge unitary basis; specifying election to report based on worldwide unitary basis; specifying authority of Tax Commissioner to prescribe reporting basis; and specifying effective dates.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 680) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Com. Sub. for Senate Bill No. 251, Relating to land surveyors' licensing.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Committee Substitute for Senate Bill No. 251 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 251) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 253, Defining "survey foot".
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Senate Bill No. 253 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 253) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Com. Sub. for Senate Bill No. 492, Eliminating part-time prosecutors.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White and Tomblin (Mr. President)--32.
The nays were: Yoder--1.
Absent: Sharpe--1.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 492 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Barnes, McKenzie and Sypolt--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 492) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Barnes, McKenzie and Sypolt--3.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 492) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 499, Eliminating timber severance tax.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Finance, were reported by the Clerk, considered simultaneously, and adopted:
On page three, section three-b, line twenty-four, after the word "the" by inserting the word "tax";
And,
On page three, section three-b, line twenty-five, by striking out the word "subsequent" and inserting in lieu thereof the words "continuing for three consecutive tax".
The bill (S. B. No. 499), as amended, was then ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Hunter--1.
Absent: Sharpe--1.
Engrossed Senate Bill No. 499 was then read a third time and put upon its passage.
Pending discussion,
The question being "Shall Engrossed Senate Bill No. 499 pass?" On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Hunter--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 499) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Senate Bill No. 499--A Bill to amend and reenact §11-13A- 3b of the Code of West Virginia, 1931, as amended, relating to eliminating the severance tax on timber for three years.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Bill No. 520, Authorizing municipalities' assessment and collection of delinquent service fees.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Senate Bill No. 520 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Sypolt--1.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 520) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Com. Sub. for Senate Bill No. 535, Modifying certain penalties for DUI.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 535 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 535) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Com. Sub. for Senate Bill No. 622, Creating Voluntary Rural and Outdoor Heritage Conservation Act.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Committee Substitute for Committee Substitute for Senate Bill No. 622 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Facemyer, Hall and Sypolt--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for Com. Sub. for S. B. No. 622) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Senate Bill No. 645, Exempting city and county hospitals from certain audit requirements.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Committee Substitute for Senate Bill No. 645 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 645) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Senate Bill No. 693, Creating senior resident lifetime hunting, fishing and trapping license.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Boley, Facemyer and Sprouse--3.
Absent: Sharpe--1.
Engrossed Committee Substitute for Senate Bill No. 693 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Prezioso, Stollings, Wells, White and Tomblin (Mr. President)--24.
The nays were: Boley, Facemyer, Guills, Hall, Plymale, Sprouse, Sypolt, Unger and Yoder--9.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 693) passed with its title.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Barnes, Bowman, Caruth, Chafin, Deem, Edgell, Fanning, Foster, Green, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Prezioso, Stollings, Wells, White and Tomblin (Mr. President)--24.
The nays were: Boley, Facemyer, Guills, Hall, Plymale, Sprouse, Sypolt, Unger and Yoder--9.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 693) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Com. Sub. for Senate Bill No. 746, Establishing recycling recovery program for electronics.
On second reading, coming up in regular order, was read a second time and ordered to engrossment and third reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
Engrossed Committee Substitute for Senate Bill No. 746 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 746) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 4074, Creating an Office for Oral Health under the Bureau for Public Health and authorizing a full time director.
On second reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for House Bill No. 4368, Reducing acts of student violence and disruptive behavior and increasing penalties for chronically disruptive students.
On second reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Chafin, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
Eng. Com. Sub. for Senate Bill No. 248, Providing state will not participate in Real ID Act of 2005.
Having been read a third time in earlier proceedings today, and now coming up in deferred order, was again reported by the Clerk.
The question being "Shall Engrossed Committee Substitute for Senate Bill No. 248 pass?"
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Edgell, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Deem, Facemyer and McCabe--3.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 248) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Edgell, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--30.
The nays were: Deem, Facemyer and McCabe--3.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 248) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
At the request of Senator Chafin, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 735, Dedicating parts of certain severance taxes to counties and municipalities.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (S. B. No. 735) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Senate Bill No. 735 was then read a third time and put upon its passage.
Pending extended discussion,
Senator Plymale moved the previous question, which motion prevailed.
The previous question having been ordered, that being on the passage of Engrossed Senate Bill No. 735.
On the passage of the bill, the yeas were: Bailey, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Love, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, White and Tomblin (Mr. President)--23.
The nays were: Barnes, Boley, Bowman, Hunter, Kessler, McCabe, McKenzie, Unger, Wells and Yoder--10.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. S. B. No. 735) passed.
The following amendment to the title of the bill, from the Committee on Finance, was reported by the Clerk and adopted:
Eng. Senate Bill No. 735--A Bill to amend and reenact §11-13A- 5a of the Code of West Virginia, 1931, as amended, relating to dedicating a portion of revenue generated from severance taxes for the benefit of counties and municipalities; creating fund; and providing permissible uses for fund.
Senator Chafin moved that the bill take effect July 1, 2008.
On this question, the yeas were: Bailey, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Love, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, White and Tomblin (Mr. President)--23.
The nays were: Barnes, Boley, Bowman, Hunter, Kessler, McCabe, McKenzie, Unger, Wells and Yoder--10.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. S. B. No. 735) takes effect July 1, 2008.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 751, Relating to Surface Coal Mining and Reclamation Act.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 751 (originating in the Committee on Finance)--A Bill to amend and reenact §22-3-11 of the Code of West Virginia, 1931, as amended, relating generally to the special reclamation tax; continuing the Special Reclamation Fund; establishing the Special Reclamation Water Trust Fund; continuing and reimposing a tax on clean coal mined for deposit into both funds; providing for the investment of moneys thereby deposited; requiring the secretary to look at alternative programs; and authorizing secretary to promulgate legislative rules implementing the alternative programs.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 751) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 751 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Hall, Love, Sprouse, Sypolt and Yoder--7.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 751) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Helmick, Hunter, Jenkins, Kessler, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Stollings, Unger, Wells, White and Tomblin (Mr. President)--26.
The nays were: Barnes, Boley, Hall, Love, Sprouse, Sypolt and Yoder--7.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 751) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 456, Authorizing Department of Environmental Protection promulgate legislative rule relating to antidegradation implementation procedures.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 456 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §64-3-4 of the Code of West Virginia, 1931, as amended, relating to authorizing the Department of Environmental Protection to promulgate a legislative rule relating to antidegradation implementation procedures.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 456) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
The bill (Com. Sub. for S. B. No. 456) was then read a second time.
On motions of Senators Kessler and Minard, the following amendment to the bill was reported by the Clerk and adopted:
On page two, section four, line three, after the word "below:" by striking out the remainder of the bill and inserting in lieu thereof the following:
On page two, subsection 3.2., by striking out the words "Tier 2.5 or";
On page three, by striking out subdivision 3.5.a. in its entirety and by renumbering the remaining subdivisions;
On page three, new subdivision 3.5.d., by striking out the words "Tier 2.5 or";
On page three, subsection 3.7., by striking out the words "Tier 2.5 or";
On page four, subsection 3.8., by striking out the words "Tier 2.5 or";
On pages nine through eleven, by striking out section six in its entirety and renumbering the remaining sections;
On page eleven, subsection 7.2., by striking out "47CSR2- 4.1.d." and inserting in lieu thereof "47CSR2-4.1.c.";
On page thirteen, by striking out the section caption and inserting in lieu thereof a new section caption, to read as follows:
§60-5-8. Designation of Tier 3 Waters.;
On pages thirteen and fourteen, by striking out section 8.1. in its entirety and renumbering the remaining subsection;
On page fifteen, subsection 9.3., by striking out "2.5,";
On page fifteen, subsection 9.6., after the word "Board" by striking out the colon and the remainder of the subsection;
On pages sixteen through twenty-one, by striking out Appendix A in its entirety;
And,
On page twenty-two, by striking out the caption and inserting in lieu thereof the caption "APPENDIX A".
The bill (Com. Sub. for S. B. No. 456), as amended, was ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 456 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells, Yoder and Tomblin (Mr. President)--29.
The nays were: Hunter, Sypolt, Unger and White--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 456) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Wells, Yoder and Tomblin (Mr. President)--29.
The nays were: Hunter, Sypolt, Unger and White--4.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 456) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 390, Authorizing Department of Environmental Protection promulgate legislative rule relating to requirements governing water quality standards.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 390 (originating in the Committee on the Judiciary)--A Bill to amend and reenact §64-3-3 of the Code of West Virginia, 1931, as amended, relating to authorizing the Department of Environmental Protection to promulgate a legislative rule relating to requirements governing water quality standards.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 390) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells, Yoder and Tomblin (Mr. President)--30.
The nays were: Hunter, Unger and White--3.
Absent: Sharpe--1.
The bill (Com. Sub. for S. B. No. 390) was then read a second time.
On motion of Senator Kessler, the following amendment to the bill was reported by the Clerk and adopted:
On page two, section three, line one, by striking out the word "amendment:" and inserting in lieu thereof the following: amendments:
On page four, by striking out subdivision 4.1.c. in its entirety and renumbering the remaining subdivisions;
And,
On page four, newly designated 4.1.c., after the word "State" by changing the period to a comma and adding the following: all Federally designated rivers under the "Wild and Scenic Rivers Act", 16 U. S. C., all naturally reproducing trout streams; all streams and other bodies of water in State and National Forests and Recreation Areas and National Rivers in the "National Parks and Recreation Act of 1978", as amended.
The bill (Com. Sub. for S. B. No. 390), as amended, was ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 390 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells and Tomblin (Mr. President)--29.
The nays were: Hunter, Unger, White and Yoder--4.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 390) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Wells and Tomblin (Mr. President)--29.
The nays were: Hunter, Unger, White and Yoder--4.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 390) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senator Helmick, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 4076, Relating to the compensation and expenses of legislators.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Walt Helmick,
Chair.
At the request of Senator Helmick, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 4076) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Kessler, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Senate Bill No. 373, Authorizing Miscellaneous Boards and Agencies promulgate legislative rules.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 373 (originating in the Committee on the Judiciary)--A Bill to amend and reenact article 3, chapter 64 of the Code of West Virginia, 1931, as amended, all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; continuing rules previously promulgated by state agencies and boards; legislative mandate or authorization for the promulgation of certain legislative rules; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the State Register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the Legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the Legislative Rule-Making Review Committee and as amended by the Legislature; authorizing the Department of Environmental Protection to promulgate legislative rules relating to emission standards for hazardous air pollutants; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to standards of performance for new stationary sources; authorizing the Department of Environmental Protection to repeal a legislative rule relating to the ambient air quality standard for nitrogen dioxide; authorizing the Department of Environmental Protection to repeal a legislative rule relating to emission standards for hazardous air pollutants pursuant to 40 CFR Part 61; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of air pollution from combustion of solid waste; authorizing the Department of Environmental Protection to repeal a legislative rule relating to the prevention and control of emissions from hospital/medical/infectious waste incinerators; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of air pollution from hazardous waste treatment, storage and disposal facilities; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of annual nitrogen oxides emissions; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of ozone season nitrogen oxides emissions; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of annual sulfur dioxide emissions; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to greenhouse gas emissions inventory program; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the control of air pollution from combustion of refuse; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to ambient air quality standards; authorizing the Department of Environmental Protection to repeal a legislative rule relating to ambient air quality standards for carbon monoxide and ozone; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to surface mining blasting; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to surface mining reclamation; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to voluntary remediation and development; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to environmental excellence program; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to standards for the beneficial use of filtrate from water treatment plants; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the Recycling Assistance Grant Program; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the hazardous waste management system; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to underground storage tanks; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to the National Pollutant Discharge Elimination System (NPDES) Program; authorizing the Department of Environmental Protection to promulgate a legislative rule relating to WV/NPDES rules for coal mining facilities; and authorizing the Solid Waste Management Board to promulgate a legislative rule relating to performance measures and review standards for solid waste authorities operating commercial solid waste facilities.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator Kessler, unanimous consent being granted, the bill (Com. Sub. for S. B. No. 373) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
On motion of Senator Chafin, the constitutional rule requiring a bill to be read on three separate days was suspended by a vote of four fifths of the members present, taken by yeas and nays.
On suspending the constitutional rule, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--32.
The nays were: Hunter--1.
Absent: Sharpe--1.
The bill was read a second time and ordered to engrossment and third reading.
Engrossed Committee Substitute for Senate Bill No. 373 was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 373) passed with its title.
Senator Chafin moved that the bill take effect from passage.
On this question, the yeas were: Bailey, Barnes, Boley, Bowman, Caruth, Chafin, Deem, Edgell, Facemyer, Fanning, Foster, Green, Guills, Hall, Helmick, Hunter, Jenkins, Kessler, Love, McCabe, McKenzie, Minard, Oliverio, Plymale, Prezioso, Sprouse, Stollings, Sypolt, Unger, Wells, White, Yoder and Tomblin (Mr. President)--33.
The nays were: None.
Absent: Sharpe--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. Com. Sub. for S. B. No. 373) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
On motion of Senator Chafin, a leave of absence for the day was granted Senator Sharpe.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Chafin, the Senate adjourned until tomorrow, Thursday, February 28, 2008, at 11 a.m.
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