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Monday, March 7, 2016

FIFTY-FIFTH DAY

[MR. SPEAKER, MR. ARMSTEAD, IN THE CHAIR]

 

 

            The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Tim Armstead, Speaker.

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

            The Clerk proceeded to read the Journal of Saturday, March 5, 2016, being the first order of business, when the further reading thereof was dispensed with and the same approved.

            At the request of Delegate Cowles, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introduction and consideration of a resolution.

Resolutions Introduced

            Delegates Ambler, Anderson, Arvon, Atkinson, Azinger, Bates, Blackwell, Blair, Boggs, Border, Butler, Byrd, Cadle, Campbell, Canterbury, Caputo, Cooper, Cowles, Deem, Duke, Eldridge, Ellington, Espinosa, A. Evans, Faircloth, Fast, Ferro, Flanigan, Fleischauer, Fluharty, Folk, Foster, Frich, Gearheart, Guthrie, Hamilton, Hamrick, Hanshaw, Hartman, Hicks, Hill, Hornbuckle, Householder, Howell, Ihle, Ireland, Kelly, Kessinger, Kurcaba, Lane, Longstreth, Manchin, Marcum, McCuskey, McGeehan, Miley, Miller, Moffatt, Moore, Morgan, Moye, Mr. Speaker (Mr. Armstead), E. Nelson, J. Nelson, O’Neal, Overington, Perdue, Perry, D. Evans, Lynch, Pethtel, Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Romine, Rowan, Rowe, Shaffer, Shott, Skinner, P. Smith, R. Smith, Sobonya, Sponaugle, Stansbury, Statler, Storch, Summers, Trecost, Upson, Wagner, Walters, Waxman, Weld, Westfall, B. White, P. White and Zatezalo offered the following resolution, which was read by the Clerk, as follows:

H. R. 18 - “Honoring and memorializing the life of Phyllis J. Rutledge who served for ten years in the West Virginia Legislature.”

Whereas, In 1960, when hearing John F. Kennedy say, “Ask not what your country can do for you; ask what you can do for your country,” Phyllis J. Rutledge felt he was speaking to her, thus beginning a long political career; and

Whereas, Phyllis J. Rutledge was first elected to the West Virginia House of Delegates in 1968 and served until 1972, and serving again from 1988-1994; and

Whereas, Phyllis J. Rutledge served as Speaker Pro Tempore during the 71st Legislature and was the first woman to do so; and

Whereas, Phyllis J. Rutledge served as Chairwoman of the Banking Committee during the 70th Legislature. She also served on the Banking and Insurance, Health and Welfare and Finance Committees, as well as many other committees; and

Whereas, While serving her second stint as a legislator, many members were taken under her wing and “taught the ropes”. Phyllis J. Rutledge was one of the most respected members, and it was said that when Phyllis J. Rutledge spoke, everybody listened: and

Whereas, Phyllis J. Rutledge was the first woman to be elected as the Kanawha County Circuit Clerk, serving from 1972 through 1984. As the Circuit Clerk, she was responsible for greatly reducing the backlog of old civil cases and modernizing the record system into the computer age; and

Whereas, Another of Phyllis J. Rutledge’s proud accomplishments was being the Kanawha County Coordinator for Hillary Clinton’s presidential campaign. She was responsible for orchestrating the now famous “Honk and Wave” campaign which helped give Hillary her victory in West Virginia; and

Whereas, Phyllis J. Rutledge was the recipient of the West Virginia Humanitarian of the Year in 1994, and is on the list of Famous West Virginians due to her many accomplishments for the people of West Virginia; and

Whereas, Phyllis J. Rutledge also served as a lobbyist to the West Virginia Legislature where she represented such groups as the American Cancer Society and the West Virginia Society for Respiratory Care; and

Whereas, Phyllis was the mother of son, James, and daughter, Jeannie, grandmother of four and great-grandmother of four; and

Whereas, Following a long and illustrious life and career in politics the Honorable Phyllis J. Rutledge passed away at Dunbar Health Care on May 1, 2015 ,therefore, be it

Resolved by the House of Delegates:

That the House of Delegates hereby honors one of its own, Phyllis J. Rutledge who most ably served for ten years in the West Virginia Legislature; and, be it

Further Resolved, That the House of Delegates memorializes the life of Phyllis J. Rutledge, a unique and singular individual who devoted her life to better the lives of the citizens of Kanawha County as well as all West Virginians; and, be it

Further Resolved, That the Clerk of the House of Delegates prepare a copy of this resolution for the members of the West Virginia House of Delegates, the Governor, and her children, Jeannie Scheirman of Mt. Pleasant, South Carolina and James Rutledge of Charleston West Virginia.

At the respective requests of Delegate Cowles, and by unanimous consent, reference of the resolution (H. R. 18) to a committee was dispensed with, and it was taken up for immediate consideration.

            The question now being on the adoption of the resolution, the yeas and nays were demanded, which demand was sustained.

            The yeas and nays having been ordered, they were taken (Roll No. 389), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:

Absent and Not Voting: Blair, Cadle, Canterbury, McCuskey, Morgan, Rohrbach and Storch.

So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the resolution (H. R. 18) adopted.

Committee Reports

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 545, Relating to asbestos abatement on oil and gas pipelines,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 691, Modifying certain air pollution standards,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

S. B. 516, Relating to registration for selective service,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

S. B. 384, Requiring Bureau for Medical Services seek federal waiver for 30-day waiting period for tubal ligation,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

 Com. Sub. for S. B. 634, Creating William R. Laird IV Second Chance Driver's License Act,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 625, Revising exceptions from FOIA provided for in Aboveground Storage Tank Act,

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

            Delegate McCuskey, Chair of the Joint Committee on Enrolled Bills, submitted the following report, which was received:

            Your Joint Committee on Enrolled Bills has examined, found truly enrolled and, on the 4th day of March, 2016, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:

(Com. Sub. for H. B. 2800), Adding law-enforcement officers’ contact information and names of family members to the list of exemptions from public records requests,

(Second Enrollment Com. Sub. for H. B. 4007), Relating generally to appointment of attorneys to assist the Attorney General,

And,

(Com. Sub. for H. B. 4163), Providing the authority and procedure for municipalities to give notice to, and publish the names of, entities delinquent in paying business and occupation taxes.

Delegate Walters, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:

Your Committee on Banking and Insurance has had under consideration:

Com. Sub. for S. B. 468, Allowing lender charge and receive interest on rescindable loan during rescission period,

And,

S. B. 613, Defining total capital for purposes of calculating state-chartered bank's lending limit,

And reports the same back, with the recommendation that they each do pass, but that they first be referred to the Committee on the Judiciary.

            In accordance with the former direction of the Speaker, the bills (Com. Sub. for S. B. 468 and S. B. 613) were each referred to the Committee on the Judiciary.

Delegate McCuskey, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:

Your Committee on Banking and Insurance has had under consideration:

Com. Sub. for S. B. 525, Relating to WV Insurance Guaranty Association Act,

And reports the same back, with amendment, with the recommendation that it do pass, as amended, but that it first be referred to the Committee on the Judiciary.

            In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 525) was referred to the Committee on the Judiciary.

Delegate McCuskey, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:

Your Committee on Banking and Insurance has had under consideration:

Com. Sub. for S. B. 270, Repealing code relating to insurance policies,

Com. Sub. for S. B. 278, Clarifying physicians' mutual insurance company is not state or quasi-state actor,

And,

Com. Sub. for S. B. 501, Relating to trusts,

And reports the same back, with the recommendation that they each do pass, but that they first be referred to the Committee on the Judiciary.

            In accordance with the former direction of the Speaker, the bills (Com. Sub. for S. B. 270, Com. Sub. for S. B. 278 and Com. Sub. for S. B. 501) were each referred to the Committee on the Judiciary.

Delegate McCuskey, Chair of the Committee on Banking and Insurance, submitted the following report, which was received:

Your Committee on Banking and Insurance has had under consideration:

Com. Sub. for S. B. 517, Clarifying PEIA plans that are exempt from regulation by Insurance Commissioner,

And reports the same back, with the recommendation that it do pass, but that it first be referred to the Committee on Finance.

            In accordance with the former direction of the Speaker, the bill (Com. Sub. for S. B. 517) was referred to the Committee on Finance.

Delegate Evans, Chair of the Committee on Agriculture and Natural Resources, submitted the following report, which was received:

Your Committee on Agriculture and Natural Resources has had under consideration:

            Com. Sub. for S. J. R. 14, “Right to Farm and Ranch Amendment”,

And reports the same back with the recommendation that it be adopted, but that it first be referred to the Committee on the Judiciary.

In accordance with the former direction of the Speaker, the resolution (Com. Sub. for S. J. R. 14) was referred to the Committee on the Judiciary.

Messages from the Senate

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to

            Com. Sub. for S. B. 13, Increasing penalties for overtaking and passing stopped school buses.

            On motion of Delegate Cowles, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

            Whereupon,

            The Speaker appointed as conferees on the part of the House of Delegates the following:

            Delegates Hanshaw, Ireland and Byrd.

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

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the title amendment of the House and the passage, as amended, of

            S. B. 27, Permitting county commissions hire outside attorneys for collection of taxes through courts.

            A message from the Senate, by

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

Com. Sub. for S. B. 254, Not allowing county park commissions to prohibit firearms in facilities.

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to

Com. Sub. for S. B. 283, Creating crime when fire is caused by operation of a clandestine drug laboratory.

            On motion of Delegate Cowles, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.

            Whereupon,

            The Speaker appointed as conferees on the part of the House of Delegates the following:

            Delegates Weld, Sobonya and Shaffer.

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

A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the title amendment of the House and the passage, as amended, of

Com. Sub. for S. B. 582, Providing refundable tax credit for motor fuel sold for use or consumed in railroad diesel locomotives.

Special Calendar

Unfinished Business

            The following resolutions, coming up as unfinished business, were reported by the Clerk:

H. R. 6, Honoring the town of Piedmont’s 160th anniversary,

            H. R. 9, Recognizing March as self-care month in West Virginia,

            H. R. 10, Creating support services and programs for childhood cancer patients and families,

            H. R. 11, Enhancing hunting, fishing, recreational shooting and other outdoor recreational opportunities as well as strengthen conservation efforts nationwide,

            H. R. 13, Designating that March 2016 be proclaimed as Healthy Bodies Healthy Spirits Month,

            H. R. 15, Self Injury Awareness Day,

            S. C. R. 21, US Army S/SGT Delmer R. Jones Memorial Bridge,

            S. C. R. 23, Johnny Mack Bryant Memorial Bridge,

            S. C. R. 25, US Army PFC Cornelius Vance Memorial Bridge,

            S. C. R. 28, US Marine Corps CPL Ronald “Duke” Varney Memorial Bridge,

            S. C. R. 29, US Army SSG Landon Clair Ray and US Army SPC4 Garry Dwight Haynes Memorial Bridge,

            S. C. R. 31, US Air Force Staff Sgt Bethel Howard McNeely and US Marine Staff Sgt Clyde Elmo Bryant Bridge,

            S. C. R. 42, US Navy LCDR Helen Elizabeth Peck Memorial Bridge,

            Com. Sub. for H. C. R. 3, North River Mills Historic Trace,

            H. C. R. 4, CSA LTG Thomas J. “Stonewall” Jackson Bridge,

            H. C. R. 8, Harry Ripley Memorial Bridge,

            H. C. R. 11, World Autism Awareness Day,

            Com. Sub. for H. C. R. 12, Cheat Mountain Salamander as the State symbol of conservation,

            Com. Sub. for H. C. R. 13, U.S. Army SPC 4 Everette R. Johnson Memorial Bridge,

            H. C. R. 20, Funding for the West Virginia National Guard,

            Com. Sub. for H. C. R. 34, U.S. Marine Corps PFC Billy Joe Vickers Memorial Bridge,

            H. C. R. 47, U.S. Army SFC Jesse Muncy Memorial Bridge,

            Com. Sub. for H. C. R. 51, U.S. Army PFC Danny Mire Stoneking Memorial Bridge,

            Com. Sub. for H. C. R. 54, Byron 'Bray' Kelley Memorial Bridge,

            Com. Sub. for H. C. R. 56, U.S. Army CPL Robert Eugene Jackson Memorial Bridge,

            Com. Sub. for H. C. R. 57, U.S. Army PVT Leander Reel Memorial Bridge,

            Com. Sub. for H. C. R. 72, Max G. Parkinson Memorial Bridge,

            H. C. R. 78, Requesting the Joint Committee on Government and Finance study professional and occupational licensing boards,

            H. C. R. 86, Designating April 16, 2016 as World Voice Day,

            H. C. R. 93, Requesting the Joint Committee on Government and Finance study the motor vehicle code,

            And,

            H. C. R. 94, Requesting the Joint Committee on Government and Finance study the holdings of public property by departments, agencies, commissions, bureaus and boards of the state.

            On motion of Delegate Cowles, H. R. 6, H. C. 9, H. R. 10, H. R. 11, H. R. 13, H. R. 15, S. C. R. 21, S. C. R. 23, S. C. R. 25, S. C. R. 28, S. C. R. 29, S. C. R. 31, S. C. R. 42, Com. Sub. for H. C. R. 3, H. C. R. 4, H. C. R. 8, H. C. R. 11, Com. Sub. for H. C. R. 13, H. C. R. 20, Com. Sub. for H. C. R. 34, H. C. R. 47, Com. Sub. for H. C. R. 51, Com. Sub. for H. C. R. 54, Com. Sub. for H. C. R. 56, Com. Sub. for H. C. R. 57, Com. Sub. for H. C. R. 72, H. C. R. 78, H. C. R. 86, H. C. R. 93 and H. C. R. 94 were each taken up for immediate consideration and adopted.

            On motion of Delegate Cowles, Com. Sub. for H. C. R. 12 was taken up for immediate consideration.

            An amendment, recommended by the Committee on Rules, was reported by the Clerk and adopted, amending Com. Sub. for H. C. R. 12 on page one, line one, by striking out everything and inserting in lieu thereof the following:

Com. Sub. for H. C. R. 12- “Requesting the Division of Natural Resources to designate the Cheat Mountain Salamander as the State symbol of environmental stewardship.

Whereas, The 4th Grade Extended Studies students of Jennings Randolph Elementary School have completed an extensive study of the various West Virginia state symbols. These symbols were used by the students to learn about the history, culture, geography, and ecology of West Virginia which led them to discover that no state, including West Virginia, has a symbol of environmental stewardship. This led to many discussions among the students and resulted in them deciding that West Virginia should have a symbol of environmental stewardship; and

Whereas, From their research, the students learned about the Cheat Mountain salamander (Plethodon netting), a species of small, woodland salamander found only on Cheat Mountain and a few nearby mountains in the eastern highlands of West Virginia. They also learned that the Cheat Mountain salamander has decreased in population due to the destruction of its original red spruce forest habitat that, in the highest elevations, once covered the mountain tops in portions of Grant, Tucker, Randolph, Pendleton, Pocahontas, Greenbrier, Nicholas, and Webster Counties. Other factors such as pollution, drought, forest storm damage, and competition with other salamanders, especially its relative, the red-backed salamander, have also led to the Cheat Mountain salamander population reduction; and

Whereas, The 4th Grade Extended Studies students believe the story of the Cheat Mountain salamander speaks volumes about the state’s rich history in practicing environmental stewardship and can help teach how important conservation is in designated areas; therefore, be it

Resolved by the Legislature of West Virginia:

That the Division of Natural Resources is requested to designate the Cheat Mountain salamander as the state symbol of environmental stewardship; and be it

Further Resolved, That the Clerk of the House of Delegates forward a certified copy of this resolution to the 4th Grade Extended Studies students and teachers of Jennings Randolph Elementary School.”

The resolution, as amended, was then adopted.

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

Third Reading

            Com. Sub. for S. B. 591, Relating to voter registration list maintenance and combined voter registration and driver licensing fund; on third reading, coming up in regular order, was, on motion of Delegate Cowles, postponed one day.

            S. B. 658, Allowing licensed professionals donate time to care of indigent and needy in clinical setting; on third reading, coming up in regular order, was read a third time.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 390), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:

Absent and Not Voting: Blair, Cadle and McCuskey.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 658) passed.

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

Second Reading

            Com. Sub. for S. B. 39, Regulating off-road motorcycles within Hatfield-McCoy Recreation Area; on second reading, coming up in regular order, was read a second time and ordered to third reading.

 

            S. B. 47, Rewriting licensing requirements for practice of medicine and surgery and podiatry; on second reading, coming up in regular order, was read a second time. 

            An amendment, recommended by the Committee on Health and Human Resources, was reported by the Clerk and adopted, amending the bill on page three, line sixty-eight, after the word, “members”, by inserting “band member, cheerleader, mascot” and a comma.

And,

On page four, line ninety-four, after the word “facility”, by striking the comma and inserting “for not less than one year nor more than five years”.

The bill was then ordered to third reading.

            S. B. 94, Designating State Police Superintendent as administrator and enforcer of motor vehicle inspection program; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 104, Classifying Marshall University Forensic Science Center as a criminal justice agency; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page two, section twenty-four-c, line fifteen, by striking out all of subsection (e).

            The bill was then ordered to third reading.

            S. B. 306, Permitting sale of county or district property online; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on Government Organization, was reported by the Clerk on page one, section three, line five, following the word “sold” by inserting the word “either”.

On page one, section three, line six, following the word “Internet-based”, by inserting the words “public auction”.

And,

On page one, section three, line nine, following the word “Internet-based”, by inserting the words “public auction”.

Delegate Ireland requested to be excused from voting on questions relating to S. B. 306 under the provisions of House Rule 49.

            The Speaker replied that any impact on the Delegate would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Member from voting.

            The amendment offered by the Committee on Government Organization was then adopted.

The bill was then ordered to third reading.

            S. B. 323, Correcting statute subsection designations regarding trespassing on property; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 329, Eliminating sunset provision for commission to study residential placement of children; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 334, Identifying coyote as fur-bearing animal and woodchuck as game animal; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page two, section two, line twenty-three, before the words “the coyote”, by adding the words “canis latrans var., more commonly known as”.

            And,

On page two, line twenty-eight, before the word “woodchuck”, by adding the words “marmota monax, more commonly known as”.

The bill was then ordered to third reading.

            Com. Sub. for S. B. 343, Authorizing prosecuting attorneys designate law-enforcement officers and investigators as custodians of records; on second reading, coming up in regular order, was read a second time.

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

“That the Code of West Virginia, 1931, as amended, be amended by adding thereto a

new section, designated §52-2-11, to read as follows:

ARTICLE 2. GRAND JURIES.

§52-2-11. Materials subpoenaed by grand jury; authorizing custodian possession and use thereof.

(a) For purposes of this section:

 (1) ‘Prosecuting attorney’ means a prosecuting attorney, assistant prosecuting attorney or duly appointed special prosecuting attorney.

 (2) ‘Investigator’ means an investigator employed by a prosecuting attorney’s office or an employee of a state agency authorized by the provisions of this code to perform criminal investigations.

 (b) Notwithstanding any provision of this code to the contrary, records, items or other evidence subpoenaed, received and ratified by a grand jury may, in the discretion of the prosecuting attorney, be permitted to be delivered to a designated law-enforcement officer or investigator who may serve as the custodian of the records, items or other evidence. The designated custodian conducting an investigation to which the subpoenaed records, items or other evidence are relevant may keep, review and analyze the records and otherwise use the subpoenaed materials for legitimate investigative purposes. Should circumstances arise which require the designation of a successor custodian, the successor custodian shall comply with the provisions of subsection (c) of this section.

(c) Prior to providing a subpoenaed record, item or other evidence to a designated custodian as authorized by subsection (a) of this section, the prosecuting attorney shall prepare and have the law-enforcement officer or investigator execute a disclosure statement acknowledging that the record, item or other evidence is secret under Rule 6(e) of the West Virginia Rules of Criminal Procedure. The prosecuting attorney shall file all disclosure statements, under seal, with the clerk of the circuit court. The existence or contents of any record, item or other evidence subject to the provisions of this section may be disclosed to another law-enforcement officer or investigator for legitimate investigative purposes with the written authorization of the prosecuting attorney and that officer’s or investigator’s execution of a disclosure statement.

(d) The designated custodian may retain the record, item or other evidence in his or her possession, care, custody or control until the termination of the investigation or prosecution.

            The bill was then ordered to third reading.

            S. B. 346, Updating projects managed by Project Management Office; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 349, Updating meaning of federal adjusted gross income; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 400, Reducing amount of sales tax proceeds dedicated to School Major Improvement Fund; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 415, Lengthening maximum term of negotiable certificates of deposit municipal funds can hold; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 426, Continuing Office of Coalfield Community Development; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 439, Eliminating requirement that budget director approve requisitions for personal services payment under certain circumstances; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 461, Updating WV Workforce Investment Act to the WV Workforce Innovation and Opportunity Act; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 469, Clarifying what personal funds are exempt from levy following judgment; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the bill on page one, following the enacting clause, by striking out the remainder of the bill and inserting in lieu thereof the following:

“That §38-5A-3 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that §38-8-1 of said code be amended and reenacted, all to read as follows: 

CHAPTER 38.  Liens.

ARTICLE 5A.  suggestions of salary and wages of persons engaged In private employment.

§38-5A-3.  Application for suggestee execution against salary or wages; extent of lien and continuing levy; exemption; priority among suggestee executions.

(a) A judgment creditor may apply to the court in which the judgment was recovered or a court having jurisdiction of the same, without notice to the judgment debtor, for a suggestee execution against any money due or to become due within one year after the issuance of such execution to the judgment debtor as salary or wages arising out of any private employment. If satisfactory proof shall be made, by affidavit or otherwise, of such facts and the fact that the amount due or to become due as salary or wages after the deduction of all state and federal taxes exceeds in any week thirty fifty times the federal minimum hourly wage then in effect, the court, if not a court of record, or if a court of record the clerk thereof, shall issue a suggestee execution against the salary or wages of the judgment debtor and upon presentation of such execution by the officer to whom delivered for collection to the person or persons from which such salary or wages are due and owing or thereafter may become due and owing to the judgment debtor, the execution and the expenses thereof shall become a lien and continuing levy upon the salary or wages due or to become due to the judgment debtor within one year after the issuance of the same, unless sooner vacated or modified as hereinafter provided, to an amount equal to twenty percent thereof and no more, but in no event shall the payments in satisfaction of such an execution reduce the amount payable to the judgment debtor to an amount per week that is less than thirty fifty times the federal minimum hourly wage then in effect. Only one such execution shall be satisfied, at one time, except that in the event two or more such executions have been served and satisfaction of the one having priority is completed without exhausting the amount of the salary or wages then due and payable that is subject to suggestion under this article the balance of such amount shall be paid in satisfaction, in the order of their priority, of junior suggestee executions against such salary or wages theretofore served.

(b) The suggestee execution by the judgment creditor provided in this section shall include, to the extent possible, the present address, the last four digits of the Social Security number and date of birth of the judgment debtor, which information shall be made available for the purpose of properly identifying the judgment debtor whose salary or wages are being levied upon.

ARTICLE 8. EXEMPTIONS FROM LEVY.

 §38-8-1. Exemptions of personal property.

(a) Any individual residing in this state, or the dependent of such individual, may set apart and hold as exempt from execution or other process the following personal property:

(1) Such individual’s interest, not to exceed $5,000 in value, in one motor vehicle;

(2) Such individual’s interest, not to exceed $8,000 in aggregate value, in household goods, furniture, toys, animals, appliances, books and wearing apparel that are held primarily for the personal, family or household use of such individual;

(3) Such individual’s aggregate interest, not to exceed $3,000, in any implements, professional books or tools of such individual’s trade;

(4) Such individual’s funds on deposit in a federally insured financial institution, wages or salary not to exceed the greater of: (i) $1,100; or (ii) one hundred twenty-five percent of the amount of the annualized federal poverty level of such individual=s household divided by the number of pay periods for such individual per year; and

(5) Funds on deposit in an individual retirement account (IRA), including a simplified employee pension (SEP), in the name of such individual: Provided, That the amount is exempt only to the extent it is not, or has not been, subject to an excise or other tax on excess contributions under Section 4973 or Section 4979 of the Internal Revenue Code of 1986, or both sections, or any successor provisions, regardless of whether the tax is or has been paid.

(b) Notwithstanding the foregoing, in no case may an individual residing in this state, or the dependent of such individual, exempt from execution or other process more than $15,000 in the aggregate in personal property listed in subdivisions (1), (2), (3) and (4), subsection (a) of this section.

(c) Wages or salary are automatically exempt from execution or other process but only to  the extent set forth in section three, article five-a of this chapter. No person may file for an exemption of wages or salary pursuant to this section in an amount above that set forth in section three, article five-a of this chapter.

The bill was then ordered to third reading.

            Com. Sub. for S. B. 474, Exempting DEP construction and reclamation contracts from review and approval; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 494, Creating Legislative Oversight Commission on Department of Transportation Accountability; on second reading, coming up in regular order, was read a second time. 

            An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page one, after the enacting clause by striking out the remainder of the bill 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 §4-14-1, §4-14-2, §4-14-3, §4-14-4 and §4-14-5, all to read as follows:

ARTICLE 14. LEGISLATIVE OVERSIGHT COMMISSION ON DEPARTMENT OF TRANSPORTATION ACCOUNTABILITY.

§4-14-1.  Findings, purpose and intent.

(a) The Legislature hereby finds and declares that:

(1) Investment in infrastructure is crucial to the well-being of West Virginians and West Virginia businesses;

(2) The state must spend funds wisely on infrastructure in order to get the best return on investment and must make long-term plans for investment;

(3) The federal government is an unpredictable and unreliable partner in providing consistent funding for infrastructure investment;

(4) The Legislature directed a Division of Highways performance and efficiency audit in 2015; and

(5) In order to maintain proper oversight to ensure that sufficient transportation planning is made, funds are spent wisely and efficiently, and the Department of Transportation is functioning appropriately, the Legislative Oversight Commission on Department of Transportation Accountability is hereby created.

(b) It is the intent of the Legislature that all actions taken pursuant to the provisions of this article by the Legislature and the Department of Transportation serve the following core set of principles:

(1) That all Department of Transportation infrastructure investments be coordinated to maximize efficiencies and minimize cost thereby addressing the needs of the citizens more effectively;

(2) That communication be facilitated among the various agencies within the Department of Transportation and between the department and the Legislature;

(3) That policy changes, not made by legislative rule, be discussed with the commission for purposes of coordinating those policies with stated goals;

(4) That programs or policies implemented in accordance with federal mandates be communicated to the commission;

(5) That in developing and implementing programs with private or federal grant moneys, the various agencies communicate their efforts to the commission to ensure and facilitate future state funding; and

(6) That any Department of Transportation agencies exempted from rule-making review by federal or state statutes advise the commission of program changes which may affect infrastructure investment in West Virginia.

§4-14-2.  Definitions.

As used in this article:

(1) ‘Agency’ means each agency, authority, board, committee, commission or division of the Department of Transportation;

(2) ‘Commission’ means the Legislative Oversight Commission on Transportation Accountability, as created in section three of this article; and

(3) ‘Department’ means the Department of Transportation.

§4-14-3.  Creation of a Legislative Oversight Commission on Department of Transportation Accountability.

(a) There is hereby created a joint commission of the Legislature known as the Legislative Oversight Commission on Department of Transportation Accountability. The commission shall be composed of seven members of the Senate appointed by the President of the Senate and seven members of the House of Delegates appointed by the Speaker of the House of Delegates. No more than four of the seven members appointed by the President of the Senate and the Speaker of the House of Delegates, respectively, may be members of the same political party. In addition, the President of the Senate and Speaker of the House of Delegates shall be ex officio nonvoting members of the commission.  The co-chairs of the commission shall be the chair of the Senate Transportation and Infrastructure Committee and the chair of the House Roads and Transportation Committee. At least one of the Senate appointees and at least one of the House of Delegates appointees shall be a member of the committee on finance of the Senate and House of Delegates, respectively. The members shall serve until their successors shall have been appointed as heretofore provided.

(b) Members of the commission shall receive such compensation and expenses as provided in article two-a, chapter four of this code. Such expenses and all other expenses including those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel shall be paid from an appropriation to be made expressly for the Legislative Oversight Commission on Department of Transportation Accountability: Provided, That if no such appropriation be made, such expenses shall be paid from the appropriation under Fund No. 0175 for Joint Expenses created pursuant to the provisions of said chapter: Provided, however, That no expense of any kind payable under the account for joint expenses shall be incurred unless first approved by the Joint Committee on Government and Finance.

(c) The commission shall meet at any time both during sessions of the Legislature and in the interim or as often as may be necessary.

(d) The President of the Senate and Speaker of the House of Delegates shall assign such staff as may be deemed necessary to aid the commission in carrying out the provisions of this article.

§4-14-4.  Powers and duties of commission.

(a) The powers, duties and responsibilities of the commission include the following:

(1) Make a continuing investigation, study and review of the practices, policies and procedures of the department;

(2) Make a continuing investigation, study and review of all matters related to transportation policy in the state;

(3) Review long-term plans by the various agencies of the Department of Transportation and how they impact the citizens of West Virginia;

(4) Conduct studies on:

(A) The amount of state, federal and other funds expended in infrastructure investment in the state and the plan for future funds;

(B) The costs associated with failure to invest in the infrastructure of this state to citizens and businesses;

(C) The extent to which the state is maximizing available federal programs and other moneys in providing transportation investment to the citizens of this state;

(D) The operation of the Department of Transportation as a whole or its individual agencies; and

(E) The roles of the public, private and private nonprofit sectors in collaborating for improved infrastructure investment;

(5) Review and study the funding mechanisms for the State Road Fund and review any plans to adjust funding to ensure the necessary investment is made;

(6) Review and study the feasibility and financial impact upon the state of the long-term transportation plans in place in the department and its agencies; and

(7) Review and study the feasibility and financial impact upon the state of the establishment of alternative long-term transportation plans and alternative funding sources.

(b) The commission shall make annual reports to the Legislature regarding the results of all investigations, studies and reviews pursuant to the provisions of section five of this article.

(c) Limited subpoena power: —

(1) For purposes of carrying out its duties, the commission is hereby empowered and authorized to examine witnesses and to subpoena such persons and books, records, documents, papers or any other tangible things as it believes should be examined to make a complete investigation.

(2) All witnesses appearing before the commission under subpoena shall testify under oath or affirmation. Any member of the commission may administer oaths or affirmations to such witnesses.

(3) To compel the attendance of witnesses at such hearings or the production of any books, records, documents, papers or any other tangible thing, the commission is hereby empowered and authorized to issue subpoenas, signed by one of the co-chairs, in accordance with section five, article one, chapter four of this code. Such subpoenas shall be served by any person authorized by law to serve and execute legal process and service shall be made without charge. Witnesses subpoenaed to attend hearings shall be allowed the same mileage and per diem as is allowed witnesses before any petit jury in this state.

(4) If any person subpoenaed to appear at any hearing  refuses to appear or to answer inquiries there propounded, or  fails or refuses to produce books, records, documents, papers or any other tangible thing within his or her control when the same are demanded, the commission shall report the facts to the circuit court of Kanawha County or any other court of competent jurisdiction and such court may compel obedience to the subpoena as though such subpoena had been issued by such court in the first instance.

§4-14-5.  Legislative reports.

(a) The department shall report to the commission annually on or before December 31 of each year and provide detailed reports as directed by the commission. The commission shall describe to the department, in writing, the criteria to be addressed in each report. Reports required by this subsection may be provided in a format as directed by the commission.

(b) The commission shall submit annual reports to the Legislature, as required by the provisions of section four of this article, which such reports shall describe and evaluate in a concise manner:

(1) The major activities of the Department of Transportation and its agencies for the fiscal year immediately past, including important policy decisions reached on initiatives undertaken during that year, especially as such activities, decisions and initiatives relate to infrastructure investment, long-term planning for infrastructure investment, use of federal funds and any public-private partnerships for infrastructure investment.

(2) Other information considered by the commission to be important, including recommendations for statutory, fiscal or policy reforms and reasons for such recommendations.

(c) The reports may specify in what manner any practice, policy or procedure may or should be modified to satisfy the goal of efficient and effective delivery of infrastructure investment and to improve the quality of roads, bridges and other transportation infrastructure in the state.” 

The bill was then ordered to third reading.

            S. B. 515, Authorizing payment of certain claims against state; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 520, Allowing PEIA ability to recover benefits or claims obtained through fraud; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 524, Rewriting Board of Barbers and Cosmetologists article; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted on page one, section one, line two, after the word “hairstyling”, by striking out the word “makeup”.

On page one, section one, line six, after the word “hairstyling”, by striking out the words “makeup artist”.

On page six, section three, lines one hundred-thirteen and one hundred-fourteen, for both abbreviated references that read “CCTC”,  by correcting the reference to read “CCTCE”.

On page six, section three, line one hundred-fourteen, after the word “Education”, by inserting the words “in conjunction”.

On page seven, section three, starting on line one hundred forty-two, by striking out the subsection “(ee)” in its entirety and by renumbering the remaining subsections accordingly.

On page seven, section four, line one hundred fifty-seven after the word “barber”, by adding the words “or barber permanent wavist”.

On page seven, section four, line one hundred fifty-eight, by striking out subdivision “(3)” in its entirety and by renumbering the remaining subdivisions accordingly.

On page eight, section four, lines one hundred sixty-two and one hundred sixty-three, for both abbreviated references that read “CCTC”, by correcting the reference to read “CCTCE”.

On page eight, section four, line one hundred sixty-four, by striking out the words “One citizen member” and inserting in lieu thereof the words “Four citizen members representing the public appointed to be evenly distributed from among the congressional districts: Provided, That no more than two shall be from the same congressional district” and a semicolon.

On page eleven, section five, line sixty-eight, by striking out the period and inserting in lieu thereof a semi-colon and the following proviso “Provided, That the licensee shall display their license for the duration of the participation of such licensee in any temporary event” and a period.

On page twelve, section eight, lines nine and ten, for both abbreviated references that read “CCTC”, by correcting the reference to read “CCTCE”.

On page fourteen, section eight-b, line two, by striking out the word “areas” and inserting in lieu thereof the word “area”.

On page fourteen, section eight-b, starting on line seventeen, by striking out subdivision “(2)” in its entirety.

On motion of Delegate Fleischauer, the bill was amended on page eleven, section five, lines sixty-one through sixty-five, by striking out everything up to and including the words “under the code” and the period, and inserting in lieu thereof, the following:

“(d) Notwithstanding any other provision of this code, the board may permit a certificate holder or licensee to perform acts of public service, including practicing his or her licensed craft at temporary, off-site events in connection with, but not limited to, fairs, carnivals, fund-raisers, and pageants if the off-site event is for the benefit of a nonprofit entity; The certificate holder or licensee is compliant with all other prescribed requirements and rules under this code, including requirements relating to supervision; and the board has been notified in advance of the date, time, and location of the event. The board may issue rules, including emergency rules, for what constitutes public service and the amount of public service that students may perform.

And,

On page seventeen, section eleven, lines four and five, for both abbreviated references that read “CCTC”, by correcting the reference to read “CCTCE”.

            The bill was then ordered to third reading.

            S. B. 552, Eliminating requirement sheriff pay jury costs to State Treasury; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 573, Prohibiting municipal annexation which would result in unincorporated territory within municipality; on second reading, coming up in regular order, was read a second time.

            An amendment, recommended by the Committee on Government Organization, was reported by the Clerk and adopted, amending the bill on page one, section one, line four, following the word “of”, by inserting the words “present or new”.

On page one, section one, line five, by striking the word “use” and inserting in lieu thereof the word “uses”.

And,

On page one, section one, line ten, by adding thereto a new subsection to be read as follows:

“(e) If a municipality fails in its attempt to annex an unincorporated territory, that municipality shall not be permitted to attempt an additional annexation of that same unincorporated territory, or any part thereof, for a period of three years.”

The bill was then ordered to third reading.

            Com. Sub. for S. B. 575, Requiring leases for state office space provide landlord or owner be responsible for cleaning or janitorial services; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 581, Eliminating sunset provision terminating pilot domestic violence court program; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 592, Relating to pipeline safety; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            Com. Sub. for S. B. 622, Composition of PEIA Finance Board; on second reading, coming up in regular order, was read a second time.

            Delegates Sponaugle, Caputo, Boggs, Reynolds, Guthrie and Moye moved to amend the bill on page one, by striking out everything after the enacting clause and inserting in lieu thereof, the following:

“That §5-16-5 of the Code of West Virginia, 1931, as amended, be repealed, and that §5-16-4 of the code be amended and reenacted, all to read as follows:

ARTICLE 16. WEST VIRGINIA PUBLIC EMPLOYEES INSURANCE ACT.

§5-16-4. Public Employees Insurance Agency Finance Board terminated; powers and duties of Board transferred to director.

            Effective July 1, 2016, the Public Employees Insurance Agency Finance Board is terminated and all duties of the Board are transferred to the Director.

Delegate Guthrie was addressing the House when Delegate Moffatt arose to a point of order, regarding the content of the Gentlelady’s remarks.

To which point, the Speaker that the Gentlelady’s remarks were to the matter pending before the House.

            On the adoption of the amendment, Delegate Caputo demanded the yeas and nays, which demand was sustained.

            The yeas and nays having been ordered, they were taken (Roll No. 391), and there were--yeas 46, nays 50, absent and not voting 4, with the yeas and absent and not voting being as follows:

Yeas: Bates, Blackwell, Boggs, Byrd, Campbell, Canterbury, Caputo, Eldridge, Faircloth, Ferro, Fleischauer, Fluharty, Folk, Guthrie, Hamilton, Hartman, Hicks, Hornbuckle, Lane, Longstreth, Lynch, Manchin, Marcum, McGeehan, Miley, Miller, Moore, Morgan, Moye, J. Nelson, Perdue, Perry, Pethtel, R. Phillips, Pushkin, Reynolds, Rodighiero, Rohrbach, Rowe, Shaffer, Skinner, P. Smith, Sobonya, Sponaugle, Trecost and P. White.

Absent and Not Voting: Blair, Cadle, McCuskey and Walters.

            So, a majority of the members present and voting not having voted in the affirmative, the amendment was rejected.

            The bill was then ordered to third reading.

            S. B. 627, Permitting physician to decline prescribing controlled substance; on second reading, coming up in regular order, was, on motion of Delegate Cowles, postponed one day.

            S. B. 648, Allowing local authorities permit flashing traffic signals during low traffic times; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 656, Creating Upper Kanawha Valley Resiliency and Revitalization Program; on second reading, coming up in regular order, was read a second time and ordered to third reading.

            S. B. 678, Relating to ownership and use of conduit providing telephone service; on second reading, coming up in regular order, was read a second time and ordered to third reading.

First Reading

            The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:

            Com. Sub. for S. B. 6, Requiring drug screening and testing of applicants for TANF program,

            Com. Sub. for S. B. 43, Clarifying means of posting to prohibit hunting or trespassing,

            Com. Sub. for S. B. 195, Authorizing DHHR to promulgate legislative rules,

            Com. Sub. for S. B. 326, Repeal and recodify law relating to contributing to delinquency of minor child,

            Com. Sub. for S. B. 330, Requiring automobile liability insurers provide 10 days' notice of intent to cancel due to nonpayment of premium,

            S. B. 333, Taking and registering of wildlife,

            Com. Sub. for S. B. 338, Compiling and maintaining Central State Mental Health Registry,

            S. B. 416, Allowing terminally ill patients access to investigational products,

            Com. Sub. for S. B. 429, Adopting two National Association of Insurance Commissioners’ models to protect enrollees and general public and permit greater oversight,

            S. B. 484, Relating to reemployment rights of military personnel,

            And,

            Com. Sub. for S. B. 601, Relating to exception from jurisdiction of PSC for materials recovery facilities or mixed waste processing facilities.

At 12:44 p.m., on motion of Delegate Cowles, the House of Delegates recessed until 5:00 p.m.

* * * * * * *

Evening Session

* * * * * * *

Messages from the Senate

            A message from the Senate, by

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

            Com. Sub. for H. B. 2122, Making it illegal for first responders to photograph a corpse; Jonathan’s Law.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate title amendment:

Com. Sub. for H. B. 2122 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §61-8-30, relating to making it illegal for first responders to photograph, film, videotape, record or otherwise reproduce in any manner the image of a human corpse or person being provided medical care or assistance except for enumerated purposes; defining terms; creating a criminal offense for first responders to photograph, film, videotape, record or otherwise reproduce in any manner the image of a human corpse or person being provided public safety services, medical care or assistance unless it is for a legitimate purpose associated with his or her employment; creating a criminal offense for first responders to knowingly disclose any photograph, film, videotape, record or other reproduction of the image of a human corpse or person being provided public safety services, medical care or assistance unless disclosure is for a legitimate cause associated with his or her employment; providing for exceptions to the criminal offenses; providing for criminal penalties; providing for enhanced penalties for subsequent offenses; and designating provision as ‘Jonathan’s Law’.”

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

On the passage of the bill, the yeas and nays were taken (Roll No. 392), and there were--yeas 89, nays none, absent and not voting 11, with the absent and not voting being as follows:

Absent and Not Voting: Blackwell, Blair, Boggs, Byrd, Cadle, Deem, McCuskey, E. Nelson, J. Nelson, Skinner and Walters.

So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2122) passed.

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

A message from the Senate, by

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

            H. B. 2796, Providing paid leave for certain state officers and employees during a declared state of emergency.

            A message from the Senate, by

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

            Com. Sub. for H. B. 2852, Relating to legalizing and regulating the sale and use of fireworks.

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

The following Senate amendment was reported by the Clerk:

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

“That §29-3-23, §29-3-24, §29-3-25 and §29-3-26 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding a new article, designated §29-3E-1, §29-3E-2, §29-3E-3, §29-3E-4, §29-3E-5, §29-3E-6, §29-3E-7, §29-3E-8, §29-3E-9, §29-3E-10, §29-3E-11, §29-3E-12, §29-3E-13 and §29-3E-14; and that §61-3E-1 and §61-3E-11 of said code be amended and reenacted, all to read as follows:

CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 3E. FIREWORKS SAFETY.

§29-3E-1. Unlawful acts.

It is unlawful for a person to manufacture, wholesale, distribute, import, sell or store for the purpose of resale, consumer fireworks, sparkling devices, novelties or toy caps without a license, registration, certificate or permit from the State Fire Marshal.

§29-3E-2. Definitions.

As used in this article:

(1) ‘Agricultural and wildlife fireworks’ means fireworks devices distributed to farmers, ranchers and growers through a wildlife management program administered by the United States Department of the Interior or the Division of Natural Resources of this state;

(2) ‘Amusement park’ means any person or organization which holds a permit for the operation of an amusement ride or amusement attraction under article ten, chapter twenty-one of this code;

(3) ‘APA Standard 87-1’ means the APA Standard 87-1 published by the American Pyrotechnics Association, as amended, and incorporated by reference into Title 49 of the Code of Federal Regulations;

(4) ‘Articles pyrotechnic’ means pyrotechnic devices for professional use that are similar to consumer fireworks in chemical composition and construction but not intended for consumer use, that meet the weight limits for consumer fireworks but are not labeled as such, and that are classified as UN0431 or UN0432 under 49 C.F.R. §172.101 (2014);

(5) ‘Consumer fireworks’ means small fireworks devices that are designed to produce visible effects by combustion that are required to comply with the construction, chemical composition and labeling regulations promulgated by the United States Consumer Product Safety Commission under 16 C.F.R. Parts 1500 and 1507 (2014), and that are listed in APA Standard 87-1. Consumer fireworks do not include sparkling devices, novelties, toy caps or model rockets;

(6) ‘Consumer fireworks certificate’ means a certificate issued under section five of this article;

(7) ‘Display fireworks’ means large fireworks to be used solely by professional pyro-technicians licensed by the State Fire Marshal and designed primarily to produce visible or audible effects by combustion, deflagration or detonation and includes, but is not limited to, salutes containing more than two grains (one hundred thirty milligrams) of explosive materials, aerial shells containing more than forty grams of pyrotechnic compositions and other display pieces that exceed the limits of explosive materials for classification as consumer fireworks and are classified as fireworks UN0333, UN0334, or UN0335 under 49 C.F.R. §172.101 (2014);

(8) ‘Distributor’ means a person who sells fireworks to wholesalers and retailers for resale;

(9) ‘Division 1.3 explosive’ means that term as defined in 49 C.F.R. §173.50 (2014);

(10) ‘Division 1.4 explosive’ means that term as defined in 49 C.F.R. §173.50 (2014);

(11) ‘Explosive composition’ means a chemical or mixture of chemicals that produces an audible effect by deflagration or detonation when ignited;

(12) ‘Fire Marshal’ means the State Fire Marshal;

(13) ‘Firework’ or ‘fireworks’ means any composition or device designed for the purpose of producing a visible or audible effect by combustion, deflagration or detonation. Fireworks include consumer fireworks, display fireworks and special effects. Fireworks does not include sparkling devices, novelties, toy caps or model rockets;

(14) ‘Interstate wholesaler’ means a person who is engaged in interstate commerce selling fireworks;

(15) ‘Model rocket’ means that term as defined in National Fire Protection Association Standard 1122, ‘Code for Model Rocketry’;

(16) ‘New explosive’ means that term as defined in 49 C.F.R. §173.56 (2014);

(17) ‘NFPA 1123’ means National Fire Protection Association Standard 1123, ‘Code for Fireworks Display;’

(18) ‘NFPA 1124’ means National Fire Protection Association Standard 1124, ‘Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles,’ 2006 Edition;

(19) ‘NFPA 1126’ means National Fire Protection Association Standard 1126, ‘Standard for the Use of Pyrotechnics Before a Proximate Audience;’

(20) ‘Novelties’ means that term as defined under APA standard 87-1, section 3.2; but shall not include toy pistols, toy caps, toy canes, toy guns or other similar devices;

(21) ‘Permanent’ means that term as defined in NFPA 1124;

(22) ‘Person’ means an individual or the responsible person for an association, an organization, a partnership, a limited partnership, a limited liability company, a corporation or any other group or combination acting as a unit;

(23) ‘Public display of fireworks’ means a public entertainment feature that is advertised to the general public or is on public property that includes the display or discharge of fireworks;

(24) ‘Pyrotechnic composition’ means a mixture of chemicals that produces a visible or audible effect by combustion rather than deflagration or detonation. A pyrotechnic composition will not explode upon ignition unless severely confined;

(25) ‘Retailer’ means a person who purchases consumer fireworks for resale to consumers;

(26) ‘Sparkling devices’ means ‘ground or handheld sparkling devices’ as that phrase is defined under APA 87-1, sections 3.1.1 and 3.5;

(27) ‘Special effects’ means a combination of chemical elements or chemical compounds capable of burning independently of the oxygen of the atmosphere and designed and intended to produce an audible, visual, mechanical or thermal effect as an integral part of a motion picture, radio, television, theatrical or opera production or live entertainment;

(28) ‘Temporary’ means that term as defined in NFPA 1124;

(29) ‘Toy caps’ means that term as defined under APA 87-1, section 3.3; and

(30) ‘Wholesaler’ means any person who sells consumer fireworks to a retailer or any other person for resale and any person who sells articles of pyrotechnics, display fireworks, and special effects to a person licensed to possess and use those devices.

§29-3E-3. Production or transportation of fireworks.

A person may produce or transport a firework that is a new explosive and that is either a division 1.3 explosive or division 1.4 explosive if the person first meets the requirements of 49 C.F.R. §173.56(2)(j) (2014).

§29-3E-4. Sparkling devices and novelties registration required.

(a) A person may not sell sparkling devices or novelties without being registered with the State Fire Marshal.

(b) To be registered with the State Fire Marshal, the person shall:

(1) Submit an application to the State Fire Marshal;

(2) Provide a copy of his or her current business registration certificate or his or her certificate to sell sparklers and novelties issued by the State Tax Commissioner;

(3) Pay the required fee; and

(4) Provide other information as the State Fire Marshal may require by legislative rule.

(c) A registration is valid for the calendar year or any fraction thereof and expires on December 31 of each year.

(d) A registration is not transferable.

(e) A person shall post the registration in a conspicuous place at the location of the business.

(f) A separate registration is required for each location.

(g) The fee required in subdivision (3), subsection (b) of this section shall be $15.00 per retail location.

(h) The fee assessed by this section shall be retained by the State Fire Marshal and expended to offset costs incurred in performing the duties imposed by the provisions of this code.

§29-3E-5. Consumer fireworks certificate required.

(a) A retailer may not sell consumer fireworks unless the retailer is certified under this article.

(b) To be certified to sell consumer fireworks a retailer shall:

(1) Submit an application to the State Fire Marshal;

(2) Submit with the application a copy of his or her current business registration certificate;

(3) Pay a fee of $500.00 for each temporary retail sales location and $1000.00 for each permanent retail sales location to the State Fire Marshal;

(4) Provide the State Fire Marshal proof that the retailer maintains at all times public liability and product liability insurance with minimum coverage limits of $1 million dollars to cover losses, damages or injuries that might result from selling consumer fireworks; and

(5) Provide other information as the State Fire Marshal may require by legislative rule.

(c) A consumer fireworks certificate is valid from April 1 through March 31 of the next calendar year.

(d) A consumer fireworks certificate is not transferable.

(e) A retailer shall post the certificate in a conspicuous place at the location of the business.

(f) A separate certificate is required for each location of the business.

(g) A certificate holder may also sell sparkling devices and novelties at the same location without additionally obtaining a sparkling devices and novelties registration.

(h) A retailer who sells consumer fireworks shall comply with the regulations provided in NFPA 1124.

(i) A retailer who sells consumer fireworks shall comply with all regulations provided in NFPA 1124. The State Fire Marshal may by legislative rule, promulgate rules to supplement those rules established in NFPA 1124.

(j) A retailer shall sell the consumer fireworks only from a permanent building or structure that meets the specifications in NFPA 1124 or a temporary facility or structure that meets the specifications of NFPA 1124.7.3.5.

(k) Any fees collected pursuant to this section shall be deposited in the State Fire Marshal Fees Fund established by the provisions of section twelve-b, article three, chapter twenty-nine of this code.

(l) Notwithstanding any provision of this article to the contrary, no retailer may offer consumer fireworks for sale before June 1, 2016.

29-3E-6. Required permit for public fireworks display.

(a) Any municipality, county, fair association, amusement park or other organization shall have a permit to present a public display of fireworks from the State Fire Marshal.

(b) To receive a permit, a municipality, fair association, amusement park, or other organization shall:

(1) Submit an application to the State Fire Marshal;

(2) Pay the required fee not to exceed $50.00;

(3) Furnish proof of financial responsibility to satisfy claims for damages to property or personal injuries arising out of any act or omission on the part of the person or an employee thereof, in the amount, character and form as the State Fire Marshal determines to be necessary for the protection of the public; and

(4) Provide any other information as the State Fire Marshal may require by legislative rule.

(c) The State Fire Marshal shall require the municipality, county, fair association, amusement park and other organizations to give written notice to the local police and fire authorities at least five days prior to the display for which the permit is sought.

(d) A permit is not transferable.

(e) The display shall be operated by a competent operator licensed or certified as to competency by the State Fire Marshal and shall be of such composition, character, and so located, discharged or fired so as to be safe in the opinion of the chief of the fire department serving the community or area where such display is being held.

(f) The permittee shall require a bond from the licensee in a sum not less than $1,000 conditioned on compliance with the provisions of this article and the rules of the State Fire Marshal except where the licensee is an insured government entity.

(g) Any fees collected pursuant to this section shall be deposited in the State Fire Marshal Fees Fund established by the provisions of section twelve-b, article three, chapter twenty-nine of this code.

§29-3E-7. Fireworks safety fee; administration; tax crimes; collections; remittances; deposits; distributions; rules.

(a) In addition to the sales tax, a fireworks safety fee of twelve percent of all sales is levied on retail sales of consumer fireworks in this state. The fee shall be distributed pursuant to the provisions of this subsection. The fee computation under this subsection shall be carried to the third decimal place, and the fee rounded up to the next whole cent whenever the third decimal place is greater than four, and rounded down to the lower whole cent whenever the third decimal place is four or less.

The State Tax Commissioner shall disburse all proceeds of the fireworks safety fee into the state treasury each month in the following manner:

(1) Seventy-five percent shall be deposited into a special account in the State Treasury, designated the Veterans’ Facility Support Fund established by the provisions of section eleven, article one, chapter nine-a for expenditure on veterans’ programs.

(2) Twenty-five percent shall be deposited into a special account in the State Treasury, designated the Fire Protection Fund established in section thirty-three, article three, chapter thirty-three of this code and distributed in accordance with that section to each volunteer fire company or department on an equal share basis by the State Treasurer.

(b) A person who purchases consumer fireworks in a retail transaction shall pay to the retailer the amount of the fee levied by this section, which fee is added to and constitutes a part of the sale price, and is collectible by the retailer who shall account to the state for all fees paid by a purchaser. If the retailer fails to collect the fee, or fails to account to the state for the fees paid by a purchaser, then the retailer is liable for the payment of the fee to the state.

(c) A retailer shall remit to the State Tax Commissioner no later than thirty days after the end of each preceding month all moneys collected for such preceding month, pursuant to the requirements of this section, and shall report such collections on forms and in the manner prescribed by the State Tax Commissioner.

(d) All moneys so remitted, net of refunds and adjustments, shall be paid by the State Tax Commissioner into the funds specified in this section.

(e) Each and every provision of the West Virginia Tax Crimes and Penalties Act set forth in article nine, chapter eleven of this code applies to the fees imposed pursuant to this article, with like effect as if that act were applicable only to the fees imposed by this article and were set forth in extenso in this article.

(f) The State Tax Commissioner shall propose legislative rules and may promulgate such emergency rules as are necessary to implement the provisions of this article.

(g) Notwithstanding any other provision of this code to the contrary, the State Tax Commissioner may deduct and retain one percent from each payment into the General Revenue Fund, as provided in this section, for the benefit of his or her office for general tax administration, from which expenditures are permitted from collections without appropriation by the Legislature.

§29-3E-8. State Fire Marshal’s Rule-making Authority.

(a) The State Fire Marshal may promulgate emergency rules and shall propose legislative rules for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, to implement the provisions of this article, including:

(1) Adopting by reference the most recent edition of APA Standard 87-1;

(2) Adopting by reference the most recent edition of NFPA 1123, Code for Fireworks Display;

(3) Adopting by reference NFPA 1124, code for the manufacture, transportation, storage and retail sales of fireworks and pyrotechnic articles;

(4) Adopting by reference the most recent edition of NFPA 1126, standard for the use of pyrotechnics before a proximate audience;

(5) Procedures for the issuance and renewal of a registration, certificate and permit;

(6) A fee schedule;

(7) Establishing insurance or bond requirements;

(8) Establishing additional criteria for the granting of a registration, certificate, or permit under this article; and

(9) Registration of manufacturers, wholesalers and distributors.

§29-3E-9. Exemptions.

This article does not prohibit any of the following:

(1) The use of fireworks by railroads or other transportation agencies for signaling purposes or illumination;

(2) The use of agricultural and wildlife fireworks;

(3) The sale or use of blank cartridges for a theatrical performance, use by military organizations or signal or ceremonial purposes in athletics or sports; or

(4) The possession, sale or disposal of fireworks incidental to the public display of fireworks by wholesalers or other persons who have a permit to possess, store and sell explosives from the Bureau of Alcohol, Tobacco, Firearms, and Explosives of the United States Department of Justice and the State Fire Marshal.

§29-3E-10. Local municipalities’ regulation of consumer fireworks.

This article does not affect the authority of the governing body of a municipality to prohibit or regulate the use of consumer fireworks within its boundaries.

§29-3E-11. Violations of this article; penalties.

(a) A person may not intentionally ignite, discharge or use consumer fireworks on public or private property without the express permission of the owner to do so.

(b) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices within or throw the same from a motor vehicle or building.

(c) A person may not intentionally ignite or discharge any consumer fireworks or sparkling devices into or at a motor vehicle or building, or at any person or group of people.

(d) A person may not intentionally ignite or discharge any consumer fireworks or sparkling device while the person:

(1) Is under the influence of alcohol;

(2) Is under the influence of any controlled substance;

(3) Is under the influence of any other drug; or

(4) Is under the combined influence of alcohol and any controlled substance or any other drug.

(e) A person who is less than eighteen years of age may not purchase, nor offer for sale, consumer fireworks.

(f) The provisions of this section shall be effective June 1, 2016.

§29-3E-12. Miscellaneous offenses; penalties.

Any person who violates a provision of this article for which a penalty is not expressly set forth is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100.00 nor more than $500.00. The provisions of this section shall be effective June 1, 2016.

§29-3E-13. Seizures by the State Fire Marshal; enforcement of law.

(a) The State Fire Marshal shall seize, take, remove and dispose of at public auction or destroy, or cause to be seized, taken or removed and disposed of at public auction, or destroyed at the expense of the owner, all stocks of fireworks or combustibles offered for sale, stored or held in violation of this article or an emergency or legislative rule promulgated hereunder.

(b) The West Virginia State Police, deputy sheriffs, municipal police officers and other law-enforcement officers shall assist in the enforcement of this article.

§29-3E-14. Reporting requirements; duration of reporting requirements.

Annually, on or before January 15, 2017, 2018 and 2019:

 (1) The State Treasurer shall submit to the President of the Senate and the Speaker of the House of Delegates a report detailing the amount of revenue received and deposited from the Fireworks Safety Fee into the Fire Safety Fund authorized by section seven of this article and the distribution of said funds;

(2) The Secretary of Veterans’ Assistance shall supply the President of the Senate and Speaker of the House of Delegates with a report detailing the revenue received from the Fireworks Safety Fee and deposited in the Veterans’ Facility Support Fund and the purposes for which the money was expended;

(3) The State Tax Commissioner shall provide to the President of the Senate and Speaker of the House of Delegates a report detailing the revenue received from the sales tax received from the sale of fireworks authorized by the provisions of the article and revenue received from the Fireworks Safety Fee authorized by section seven of this article; and

(4) The State Fire Marshall shall submit to the President of the Senate and Speaker of the House of Delegates a report detailing the amounts of revenue received from the registration fees imposed pursuant to the provisions of section five of this article, the purposes for which the fees were expended and the adequacy of the fees received in relation to the duties required of the office.

CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3E. OFFENSES INVOLVING EXPLOSIVES.

§61-3E-1. Definitions.

As used in this article, unless the context otherwise requires:

(a) ‘Destructive device’ means any bomb, grenade, mine, rocket, missile, pipebomb or similar device containing an explosive, incendiary, explosive gas or expanding gas which is designed or so constructed as to explode by such filler and is capable of causing bodily harm or property damage; any combination of parts, either designed or intended for use in converting any device into a destructive device and from which a destructive device may be readily assembled.

‘Destructive device’ does not include a firearm as such is defined in section two, article seven of this chapter, or sparkling devices, novelties, toy caps, model rockets and their components twenty-three, article three, chapter twenty-nine of this code or fireworks as these terms are defined in section two, article three-e, chapter twenty-nine of this code, or high power rockets and their components, as defined in this section.

(b) ‘Explosive material’ means any chemical compound, mechanical mixture or device that is commonly used or can be used for the purpose of producing an explosion and which contains any oxidizing and combustive units or other ingredients in such proportions, quantities or packaging that an ignition by fire, by friction, by concussion, by percussion, by detonator or by any part of the compound or mixture may cause a sudden generation of highly heated gases. These materials include, but are not limited to, powders for blasting, high or low explosives, blasting materials, blasting agents, blasting emulsions, blasting fuses other than electric circuit breakers, detonators, blasting caps and other detonating agents and black or smokeless powders not manufactured or used for lawful sporting purposes. or fireworks defined in section twenty-three, article three, chapter twenty-nine of this code which are not used in violation of this article. Also included are all explosive materials listed annually by the office of the State Fire Marshal and published in the State Register, said publication being hereby mandated.

(c) ‘High power rocket’ means the term as defined in National Fire Protection Association Standard 1127, ‘Code for High Power Rocketry.’

(c) (d) ‘Hoax bomb’ means any device or object that by its design, construction, content or characteristics appears to be, or is represented to be or to contain a destructive device, explosive material or incendiary device as defined in this section, but is, in fact, an inoperative facsimile or imitation of such a destructive device, explosive material or incendiary device.

(d) (e) ‘Incendiary device’ means a container containing gasoline, kerosene, fuel oil, or derivative thereof, or other flammable or combustible material, having a wick or other substance or device which, if set or ignited, is capable of igniting such gasoline, kerosene, fuel oil, or derivative thereof, or other flammable or combustible material: Provided, That no similar device commercially manufactured and used solely for the purpose of illumination shall be deemed to be an incendiary device.

(e) (f) ‘Legal authority’ means that right as expressly stated by statute or law.

(g) ‘Model rocket’ means the term as defined in National Fire Protection Association Standard 1122, ‘Code for Model Rocketry.’

(f) (h) ‘Person’ shall mean means an individual, corporation, company, association, firm, partnership, society or joint stock company.

(g) (i) ‘Storage magazine’ is defined to mean any building or structure, other than an explosives manufacturing building, approved by the legal authority for the storage of explosive materials.

§61-3E-11. Exemptions.

(a) Unless specifically prohibited by any provision of this code or the laws of the United States, nothing in this article shall prohibit prohibits the authorized manufacture, sale, transportation, distribution, use or possession of any explosive material by any person holding a permit for such issued by the office of the State Fire Marshal. Any person performing a lawful activity pursuant to or regulated by the terms of a permit issued by the Division of Environmental Protection, or any office thereof, shall be is exempt from the provisions of this article.

(b) Unless specifically prohibited by any other provision of this code or the laws of the United States, nothing in this section shall prohibit prohibits the authorized manufacture, transportation, distribution, use or possession of any explosive, destructive device or incendiary device by a member of the armed forces or law-enforcement officers whenever such persons are acting lawfully and in the line of duty; nor shall it prohibit the manufacture, transportation, distribution, use or possession of any explosive material, destructive device or incendiary device to be used solely for lawful scientific research or lawful educational purposes. Any person engaged in otherwise lawful blasting activities failing to obtain a permit or in possession of an expired permit issued by the office of the state fire marshal State Fire Marshal shall not be construed to be is not in violation of the article.

(c) Nothing contained in this article applies to sparkling devices or novelties or to the sale, purchase, possession, use, transportation or storage of fireworks as regulated in article three-e, chapter twenty-nine of this code.”

            And,

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

Com. Sub. for H. B. 2852  - “A Bill to repeal §29-3-23, §29-3-24, §29-3-25 and §29-3-26 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new article, designated §29-3E-1, §29-3E-2, §29-3E-3, §29-3E-4, §29-3E-5, §29-3E-6, §29-3E-7, §29-3E-8, §29-3E-9, §29-3E-10, §29-3E-11, §29-3E-12, §29-3E-13 and §29-3E-14; and to amend and reenact §61-3E-1 and §61-3E-11 of said code, all relating to the regulation of fireworks generally; relocating certain existing provisions relating to sparkling devices, novelties and toy guns, including penalties for certain violations; raising funds for veterans’ assistance and volunteer fire departments; authorizing sale of consumer fireworks on and after June 1, 2016; defining ‘consumer fireworks’; establishing regulatory framework for sale of fireworks; defining terms; requiring certificate; establishing fees; requiring permit; dedicating certain fees to Veterans Facility Support Fund and Fire Protection Fund; establishing rule-making authority; creating criminal violations related to fireworks; penalties; enforcement; defining terms; exemptions; reporting requirements; and establishing internal effective dates for certain provisions.”

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

On page nine of the Senate amendment, section seven, beginning on line thirty-three, by striking out subsection (g) in its entirety.

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

            On the passage of the bill, the yeas and nays were taken (Roll No. 393), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:

Absent and Not Voting: Blair, Byrd, Cadle, Deem, McCuskey, J. Nelson, Skinner and Walters.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2852) passed.

            Still being in possession of the Clerk, the bill was taken up for further consideration.

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

            On this question, the yeas and nays were taken (Roll No. 394), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:

Absent and Not Voting: Blair, Byrd, Cadle, Deem, McCuskey, J. Nelson, Skinner, Trecost and Walters.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2852) takes effect from its passage.

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

            A message from the Senate, by

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

H. B. 4157, Supplementing, amending, and increasing items of the existing appropriations from the State Road Fund to the Department of Transportation, Division of Highways.

A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates, as follows:

            H. B. 4159, Making a supplementary appropriation to the Public Services Commission – Motor Carrier Division.

            A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:

            H. B. 4160, Making a supplementary appropriation to the Department of Revenue, Tax Division.

A message from the Senate, by

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

            Com. Sub. for H. B. 4279, Relating to disposition of seized firearms.

            A message from the Senate, by

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

H. B. 4324, Authorizing information sharing by Workforce West Virginia.

A message from the Senate, by

            The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:

            Com. Sub. for H. B. 4330, Relating to make unlawful to take a fish, water animal or other aquatic organism from state waters to stock a commercial pond or lake.

            A message from the Senate, by

The Clerk of the Senate, announced concurrence in the House of Delegate amendment, with a title amendment, and the passage, as  amended, of

Com. Sub. for H. B. 4505, Allowing powerball winners to remain anonymous.

On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate title amendment:

Com. Sub. for H. B. 4505 - “A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated  §29-22-15a; and to amend and reenact  §29B-1-4 of said code, all relating to allowing powerball, mega millions and hot lotto ticket winners to remain anonymous; providing procedures by which such winners can request anonymity; and providing for an exemption under the Freedom of Information Act for powerball, mega millions and hot lotto ticket winner information.”

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

            On the passage of the bill, the yeas and nays were taken (Roll No. 395), and there were--yeas 88, nays 3, absent and not voting 9, with the nays and absent and not voting being as follows:

Nays: Marcum, Pushkin and Rowe.

Absent and Not Voting: Blair, Byrd, Cadle, Deem, McCuskey, J. Nelson, Skinner, Trecost and Walters.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4505) passed.

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

            A message from the Senate, by

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

            Com. Sub. for H. B. 4540, Removing prohibition of disposal of certain electronics in landfills.

A message from the Senate, by

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

H. B. 4644, Relating to jury fees.

A message from the Senate, by

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

H. B. 4654, Relating to the Executive Secretary of the Board of Registered Professional Nurses.

            A message from the Senate, by

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

            H. B. 4654, Relating to the Executive Secretary of the Board of Registered Professional Nurses.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate title amendment:

H. B. 4654 - “A Bill to amend and reenact §30-7-4 of the Code of West Virginia, 1931, as amended, relating to the West Virginia Board of Examiners for Registered Professional Nurses; and eliminating required qualifications of the executive secretary to the board.”

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

            On the passage of the bill, the yeas and nays were taken (Roll No. 396), and there were--yeas 89, nays 2, absent and not voting 9, with the nays and absent and not voting being as follows:

Nays: Marcum and McGeehan.

Absent and Not Voting: Blair, Byrd, Cadle, Deem, McCuskey, J. Nelson, Skinner, Trecost and Walters.

            So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4654) passed.

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

            On this question, the yeas and nays were taken (Roll No. 397), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:

Absent and Not Voting: Blair, Byrd, Cadle, Deem, McCuskey, J. Nelson, Skinner and Walters.

            So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4654) takes effect from its passage.

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

            A message from the Senate, by

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

            H. B. 4674, Relating to motor vehicle back-up lamps.

            A message from the Senate, by

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

            H. B. 4735, Relating to the definition of health care provider, and clarifying that speech-language pathologists and audiologists are two separate providers.

            A message from the Senate, by

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

            S. B. 29, Tolling statute of limitations in certain cases.

A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with title amendment, and the passage, as amended, of

Com. Sub. for S. B. 68, Disallowing Health Care Authority to conduct rate review and set rates for hospitals.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate title amendment:

Com. Sub. for S. B. 68 - “A Bill to repeal §16-29B-19, §16-29B-19a, §16-29B-20, §16-29B-20a, §16-29B-21 and §16-29B-21a of the Code of West Virginia, 1931, as amended; and to amend and reenact §16-29B-1, §16-29B-10 and §16-29B-27 of said code, all relating to the powers of the Health Care Authority; eliminating authority of the Health Care Authority to conduct rate review; eliminating authority of the Health Care Authority to set rates for hospitals; and eliminating antiquated studies to be conducted by the Health Care Authority.”

The question being on passage of the bill as amended by the House and further amended by the Senate,  the yeas and nays were taken (Roll No. 398), and there were--yeas 65, nays 25, absent and not voting 10, with the nays and absent and not voting being as follows:

Nays: Caputo, Eldridge, Ferro, Fleischauer, Fluharty, Guthrie, Hicks, Hornbuckle, Longstreth, Lynch, Manchin, Marcum, Miley, Moore, Moye, Perdue, Perry, R. Phillips, Pushkin, Reynolds, Rodighiero, Rowe, Shaffer, Sponaugle and P. White.

Absent and Not Voting: Blair, Byrd, Cadle, Deem, Gearheart, Hamilton, McCuskey, J. Nelson, Skinner and Walters.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 68) passed.

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

A message from the Senate, by

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

Com. Sub. for S. B. 102, Conforming to federal Law-Enforcement Officers Safety Act,

S. B. 271, Conforming definition of attest services to Uniform Accountancy Act,

And,

            Com. Sub. for S. B. 274, Relating to increasing civil jurisdictional amount in magistrate courts.

A message from the Senate, by

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

            S. B. 427 - “A Bill supplementing and amending by decreasing an appropriation and making a supplementary appropriation from the balance of moneys remaining as an unappropriated balance from the State Fund, State Excess Lottery Revenue Fund, to the Department of Revenue, Lottery Commission – Distributions to Statutory Funds and Purposes, fund 7213, fiscal year 2016, organization 0705, by supplementing and amending the appropriations for the fiscal year ending June 30, 2016”; which was referred to the Committee on Finance.

            A message from the Senate, by

            The Clerk of the Senate, announced concurrence in the House of Delegates amendment, with a title amendment, and the passage, as amended, of

S. B. 437, Updating and clarifying code relating to rules governing mixed martial arts.

            On motion of Delegate Cowles, the bill was taken up for immediate consideration and the House of Delegates concurred in the following Senate title amendment:

S. B. 437 - “A Bill to amend and reenact §29-5A-1, §29-5A-15 and §29-5A-24 of the Code of West Virginia, 1931, as amended, all relating to regulation of events by State Athletic Commission; renaming the State Athletic Commission to the State Ring Sports Commission; authorizing delegation of commission authority to approve certain event changes; authorizing the commission to propose emergency legislative rules relating to creation of a promoter’s fee; requiring the promoter’s fee be placed into a fund for the sole purpose of hiring an administrative secretary; eliminating requirements for certain bonds; and providing for rules to govern amateur mixed martial arts.”

Delegate Kelly requested to be excused from voting on S. B. 437 under the provisions of House Rule 49.

            The Speaker replied that any impact on the Delegate would be as a member of a class of persons possibly to be affected by the passage of the bill, and refused to excuse the Member from voting.

            The question being on the passage of the bill, the yeas and nays were taken (Roll No. 399), and there were--yeas 92, nays none, absent and not voting 8, with the absent and not voting being as follows:

Absent and Not Voting: Blair, Byrd, Cadle, Deem, McCuskey, J. Nelson, Skinner and Walters.

            So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 437) passed.

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

A message from the Senate, by

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

            S. B. 483, Marshall County LSIC waiver.

At the request of Delegate Cowles and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.

Committee Reports

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

 Com. Sub. for S. B. 259, Amending Unfair Trade Practices Act,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

 Com. Sub. for S. B. 202, Authorizing Department of Commerce promulgate legislative rules,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 614, Conforming statute with court interpretation by replacing “unconscionable” with “fraudulent” when referring to conduct,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 599, Relating generally to Uniform Unclaimed Property Act,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 493, Allowing creation of self-settled spendthrift trusts,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

S. B. 613, Defining total capital for purposes of calculating state-chartered bank’s lending limit,

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

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

Com. Sub. for S. B. 468, Allowing lender charge and receive interest on rescindable loan during rescission period,

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

On motion for leave, the resolutions were introduced (Originating in the Committee on Education and reported with the recommendation that they each be adopted), which were read by their titles, as follows:

By Delegates Ambler, Duke, Evans, Hamrick, Kelly, Rohrbach, Romine, Rowan, Wagner, Blackwell, Campbell, Hicks, Hornbuckle, Moye, Perdue, Perry, Rodighiero, Trecost, and Espinosa:

H. C. R. 101 - “Requesting the Joint Committee on Government and Finance to conduct an interim study on the areas remaining from the January 3, 2012, Efficiency Audit of West Virginia’s Primary and Secondary Education System conducted by Public Works, LLC, that require legislative action to accomplish.”

Whereas, The January 3, 2012, Efficiency Audit of West Virginia’s Primary and Secondary Education System conducted by Public Works, LLC, included eighty-two recommendations intended to help the state achieve two goals: (1) Producing the best possible outcomes for its students; and (2) Receiving the highest return on the educational dollars it spends; and

Whereas, A representative from Public Works, LLC, who was invited to present a status report on the implementation of these recommendations to the Joint Standing Education Committee during the 2015 interim meetings, reported many areas in which action on implementation was completed through a combination of legislative and executive action, areas in which there was progress toward implementation, areas in which there was not total agreement with that recommendation, and other recommendations remaining in which implementation required Code change/legislative action; and

Whereas, The recommendations remaining which require Code change/legislative action include recommendations intended help the state achieve goals for both producing the best outcomes for students and/or receiving the highest return for dollars spent; therefore, be it;

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct an interim study on the areas remaining from the January 3, 2012, Efficiency Audit of West Virginia’s Primary and Secondary Education System, that require Code change/legislative action to accomplish; and be it

Further Resolved, That a report of the findings, conclusions and recommendations of the study, together with drafts of any legislation necessary to effectuate the recommendations be reported to the Legislature at its 2017 Regular Session; and be it

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

By Delegates Kurcaba, Ellington, Hicks, Romine, Trecost, Kelly, Hamrick, Espinosa, Rodighiero and Campbell:

H. C. R. 102 - “Requesting the Joint Committee on Government and Finance to conduct an interim study on the enrollment of students solely for participation in extracurricular activities.”

Whereas, The public schools are tax payer supported educational programs and facilities that include curricular and extracurricular activities valuable for providing a thorough and efficient education for all students; and 

Whereas, The public schools are open to all children of compulsory school age in the state and all children are entitled to a thorough and efficient education; and

Whereas, Some taxpayers choose options other than the public schools for the education of their children as they may do through lawful process and bear the additional expense; and 

Whereas, Such a choice does not diminish the rights of these children to a thorough and efficient education and they may receive services or be enrolled from time to time in some academic courses offered by the public schools; and  

Whereas, The extracurricular activities that are available to students as a part of the public schools may require certain conditions to be met as a precedent to participation but, absent a compelling state interest, these conditions should not be such as to exclude an entire class or classes of children otherwise entitled to the full benefits of a thorough and efficient education from participating if they choose to do so.

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct an interim study on the enrollment of students solely for participation in extracurricular activities; and be it

Further Resolved, That the study shall include an opportunity for input from the Home School Legal Defense Association, the Christian Home Educators of West Virginia, the West Virginia Secondary School Activities Commission, the Coaches Association, the Principals Association, the West Virginia School Board Association, the Superintendents Association, the Athletic Directors, the AFT-WV, the WVEA and such others who may have an interest;

Further Resolved, That a report of the findings, conclusions and recommendations of the study, together with drafts of any legislation necessary to effectuate the recommendations be reported to the Legislature at its 2017 Regular Session; and be it

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

By Delegates Cooper, Ellington, D. Evans, Hamrick, Kelly, Kurcaba, Rowan, Campbell, Hicks, Moye, Rodighiero, Trecost and Espinosa:

H. C. R. 103  -  “Requesting the Joint Committee on Government and Finance to conduct an interim study on the educational impact and budgetary and funding formula consequences of Education Savings Accounts.”

Whereas, Education is the key to citizens enjoying a productive, fulfilling life; and

            Whereas, West Virginians cherish their children and strive to provide them with a bright future; and

            Whereas, In 2015, 74 percent of West Virginia’s students were in the lower socio economic status; and

            Whereas, The proficiency rate, an indicator of West Virginia students’ performance, clearly indicates that many students are not achieving at satisfactory levels; and

            Whereas, It is in the state’s interest to explore all opportunities for improving educational outcomes; and

            Whereas, Education Savings Accounts are the most flexible and effective means of school choice; and

            Whereas, Education Savings Accounts significantly increase parental satisfaction with their child’s education; and

            Whereas, Only through a truly competitive educational system can education consumers be empowered; and

Whereas, Twenty-nine states have enacted over 50 school choice programs; therefore be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to conduct an interim study on the educational impact and budgetary and funding formula consequences of Education Savings Accounts; and be it

Further Resolved, That a report of the findings, conclusions and recommendations of the study, together with drafts of any legislation necessary to effectuate the recommendations be reported to the Legislature at its 2017 Regular Session; and be it

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

By Delegates Ambler, Duke, D. Evans, Hamrick, Kelly, Rohrbach, Romine, Rowan, Wagner, Ellington Campbell, Hicks, Hornbuckle, Moye, Perdue, Perry, Rodighiero, Cooper and Espinosa:

H. C. R. 104   - “Requesting that the Joint Committee on Government and Finance study the composition, qualifications, terms and duties of the State Board of Education, including the need for any constitutional amendments to clarify the scope of its authority.”

Whereas, Section one, article XII of the Constitution of the State of West Virginia imposes a duty upon the Legislature, as a separate but equal branch of government, to provide, by general law, for a thorough and efficient system of free schools; and

Whereas, Section two, article XII of the Constitution of the State of West Virginia vests the general supervision of the free schools with the West Virginia board of education; and

Whereas, Section two, article XII of the Constitution of the State of West Virginia requires the Legislature to prescribe by law the duties of the state board in the general supervision of free public schools; and

Whereas, the state board is not elected by the citizens of West Virginia; and

Whereas, the state board members serve nine year terms upon appointment by the Governor; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the composition, qualifications, terms and duties of the state board of education, including, but not limited to, how education in other states is administered at the state level; and, be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, 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, prepare a report and draft necessary legislation be paid from the legislative appropriations to the Joint Committee on Government and Finance.

And,

By Delegates Ambler, Duke, Ellington, Evans, Hamrick, Kurcaba, Rohrbach, Romine, Rowan, Wagner, Campbell, Hicks, Moye, Perry, Rodighiero, Trecost and Espinosa:

H. C. R. 105 - “Requesting the Joint Committee on Government and Finance study the composition and terms of the School Building Authority.”

Whereas, West Virginia Code §18-9D-1 et seq establishes the School Building Authority; and

Whereas, The School Building Authority provides financing for school building capital improvement projects; and

Whereas, The School Building Authority is comprised of eleven members, six of whom are citizen members appointed by the governor to serve three year staggered terms and three of whom are members of the state board of education who may only serve one three year term; therefore, be it

Resolved by the Legislature of West Virginia:

That the Joint Committee on Government and Finance is hereby requested to study the composition and terms of the School Building Authority; and be it

Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2017, 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, prepare a report and draft necessary legislation be paid from the legislative appropriations to the Joint Committee on Government and Finance.

            The Speaker referred the resolutions (H. C. R. 101, H. C. R. 102, H. C. R. 103, H. C. R. 104 and H. C. R. 105) to the Committee on Rules.

            Delegate McCuskey, from the Joint Committee on Enrolled Bills, submitted the following report, which was received:

            Your Joint Committee on Enrolled Bills has examined, found truly enrolled, and on the 7th day of March, 2016, presented to His Excellency, the Governor, for his action, the following bill, signed by the President of the Senate and the Speaker of the House of Delegates:

            (Com. Sub. for S. B. 421), Terminating behavioral health severance and business privilege, tax,

            (Com. Sub. for S. B. 582), Providing refundable tax credit for motor fuel sold for use or consumed in railroad diesel locomotives,

            And,

(Com. Sub. for S. B. 594), Requiring State Auditor consider for payment claim submitted by electronically generated invoice.

Delegate Nelson, Chair of the Committee on Finance, submitted the following report, which was received:

            Your Committee on Finance has had under consideration:

S. B. 459, Requiring county board of education to pay tuition to Mountaineer Challenge Academy,

            And,

Com. Sub. for S. B. 595, Relating to retirement credit for members of WV National Guard,

And reports the same back, with the recommendation that they each do pass.

Delegate Nelson, Chair of the Committee on Finance, submitted the following report, which was received:

            Your Committee on Finance has had under consideration:

S. B. 54, Altering how tax is collected on homeowners' associations,

S. B. 311, Allowing permanent exception for mortgage modification or refinancing loan under federal Making Home Affordable program,

            And,

S. B. 505, Exempting certain uses of field gas from motor fuel excise taxes,

And reports the same back, with an amendment, with the recommendation that they each do pass, as amended.

Delegate Shott, Chair of the Committee on the Judiciary, submitted the following report, which was received:

Your Committee on the Judiciary has had under consideration:

 Com. Sub. for S. B. 597, Relating generally to Health Care Authority,

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

Leaves of Absence

            At the request of Delegate Cowles, and by unanimous consent, leaves of absence for the day were granted Delegates Blair, Cadle and McCuskey.

Miscellaneous Business

            Delegate E. Nelson noted that he was absent on Roll No. 392, and that had he been present,  would have voted “Yea” thereon.

            Delegate Hill filed a form with the Clerk's Office per House Rule 94b to be removed as a cosponsor of H. B. 4267.

At 5:50 p.m., the House of Delegates adjourned until 11:00 a.m., Tuesday, March 8, 2016.