__________*__________
Tuesday, April 5, 2005
The House of Delegates met at 11:00 a.m., and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Monday, April 4, 2005, being the first order of
business, when the further reading thereof was dispensed with and the same approved.
Committee Reports
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 52, Requesting the West Virginia Division of Highways to name the bridge on I-64
at the intersection of Rt. 219 in Lewisburg, Greenbrier County, West Virginia, the "Gary Wayne
Martini Memorial Bridge",
H. C. R. 76, Requesting the Joint Committee on Government and Finance to conduct a study
regarding the state minimum wage rate and its effects,
H. C. R. 78, Requesting that the Joint Committee on Government and Finance study the
awarding of state contracts, loans, grants and industrial revenue bonds to companies outsourcing
certain jobs,
And reports the same back with the recommendation that they each be adopted.
Mr. Speaker, Mr. Kiss, from the Committee on Rules, submitted the following report, which
was received:
Your Committee on Rules has had under consideration:
H. C. R. 79, Requesting that the Joint Committee on Government and Finance study the
increasing drug problem in West Virginia,
And reports the back a committee substitute therefor, with the same title, as follows:
Com. Sub. for H. C. R. 79 - "Requesting the Joint Committee on Government and Finance
to study the increasing drug problem in West Virginia, drug use among juveniles, criminal penalties
related to drug use, treatment options and how the state can cooperate with other states, specifically
in the border counties,"
With the recommendation that the committee substitute be adopted.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 640, Allowing notary public and commissioner use stamped imprint,
S. B. 669, Transferring certain election duties from circuit clerk to clerk of county
commission,
And,
S. B. 699, Relating to shareholders' simultaneous participation in corporate meeting,
And reports the same back, by unanimous vote of the Committee, with the recommendation
that they each do pass.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bills (S. B. 640, S. B. 669 and S. B. 699) will be placed
on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 399, Relating to ability of physician to refuse to provide medical treatment in certain
cases,
And reports the same back, with amendment, with the recommendation that it do pass, as
amended.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 191, Relating to implementation of modified mental hygiene
procedures,
And,
S. B. 583, Relating to appealing orders from family court to circuit court,
And reports the same back, with amendment, by unanimous vote of the Committee, with the
recommendation that they each do pass, as amended.
Having been reported from committee with no dissenting vote, and in accordance with the
provisions of House Rule 70a, the foregoing bill (Com. Sub. for S. B. 191 and S. B. 583) will be
placed on the Consent Calendar.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
S. B. 236, Requiring health care facilities train staff, employees and contractors on
Alzheimer's disease and related dementia,
And reports the same back, with amendment, by unanimous vote of the Committee, with the
recommendation that it do pass, as amended, but that it first be referred to the Committee on
Finance.
In accordance with the former direction of the Speaker, the bill (S. B. 236) was referred to
the Committee on Finance.
Chairman Perdue, from the Committee on Health and Human Resources, submitted the
following report, which was received:
Your Committee on Health and Human Resources has had under consideration:
S. B. 533, Relating to parental notification for abortions performed on unemancipated
minors,
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.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (S. B. 533)
was taken up for immediate consideration, read a first time, ordered to second reading and then, in
accordance with the former direction of the Speaker, referred to the Committee on the Judiciary.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 729, Authorizing magistrate courts order home incarceration,
And reports the same back, by unanimous vote of the Committee, 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. 729) was
referred to the Committee on Finance.
Chairman Amores, from the Committee on the Judiciary, submitted the following report,
which was received:
Your Committee on the Judiciary has had under consideration:
Com. Sub. for S. B. 588, Relating to cruelty to animals and intervention program for certain
youths,
And reports the same back, by unanimous vote of the Committee, with the recommendation that it do pass.
At the respective requests of Delegate Staton, and by unanimous consent, the bill (Com. Sub.
for S. B. 588) was taken up for immediate consideration, read a first time, ordered to second reading
and then, in accordance with the provisions of House Rule 70a, was ordered to the Consent Calendar.
The Clerk announced that, pursuant to House Rule 70a, the following request had been filed
with him for the removal of Com. Sub. for S. B. 588 from the Consent Calendar to the House
Calendar:
Com. Sub. for S. B. 588, on second reading, Consent Calendar, to the House Calendar, by
Delegate Amores.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented a communication from His Excellency, the Governor,
advising that on April 1, 2005, he approved H. B. 2478, H. B. 2510, H. B. 2666, H. B. 2667, H. B.
2846, H. B. 2869, H. B. 2892, H. B. 2893 and H. B. 3337.
Resolutions Introduced
Delegates Eldridge, Perdue, Hrutkay, Webster, Perry, Beach, Stephens and Campbell offered
the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 87 - "Requesting the Joint Committee on Government and Finance study the
desirability of establishing a system whereby pharmacies share information in order to prevent
individuals from obtaining multiple prescriptions from multiple pharmacies when they illegally
obtain prescriptions from multiple physicians."
Whereas, A growing trend exists in which individuals fraudulently obtain multiple
prescriptions for a prescribed controlled substance or substances, by visiting multiple physicians for
a particular medical condition or complaint, whether real or feigned, while each such physician is
unaware of the particular individual's fraudulent scheme to obtain multiple prescriptions; and
Whereas, This unlawful practice leads to serious drug abuse which routinely leads to
addiction and ruination of human lives. Further a burdensome cost to society results in terms of the necessity of providing massive drug rehabilitation services while increasing the cost associated with
housing and monitoring increased inmate population in jails and prisons; and
Whereas, In this day and age of sophisticated and powerful computers which are capable
of immense collections, organizations and disseminations of data among varying sources via the
internet, an efficient and effective tool now exists that may be utilized to address the problems
associated with "doctor shopping" in order to obtain multiple prescriptions of controlled substances;
therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the
desirability of establishing a system whereby pharmacies share information in order to prevent
individuals from obtaining multiple prescriptions from multiple pharmacies when they illegally
obtain prescriptions from multiple physicians; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular
session of the Legislature, 2006, regarding its findings, conclusions and recommendations, along
with drafts of any proposed legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and
to draft necessary legislation, be paid from legislative appropriations to the Joint Committee on
Government and Finance.
Petitions
Delegate Ron Thompson presented a resolution, adopted by the Concord University Alumni
Association, Inc., requesting the Legislature to maintain adequate funding to Concord University by
restoring the 2005-2006 budget to a minimum level for the 2004-2005 budget; which was referred
to the Committee on the Finance.
Consent Calendar
Third Reading
The following bills on third reading, coming up in regular order, were each read a third time:
S. B. 42, Limiting liability for waste tire remediation costs for certain owners of real
property; on third reading, coming up in regular order, was read a third time.
S. B. 122
, Allowing certain state-chartered banks to organize as limited liability companies,
S. B. 183, Authorizing warden to allow withdrawal from inmate's savings account in certain
cases,
Com. Sub. for S. B. 238, Including steel railroad track and track material under statutory
provisions involving purchase of scrap metal,
And,
Com. Sub. for S. B. 580, Prohibiting political subdivisions from regulating seeds.
On the passage of the bills, the yeas and nays were taken (Roll No. 403), and there
were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Schadler.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bills (S. B. 42, S. B. 122, S. B. 183, Com. Sub. for S. B. 238 and Com. Sub. for S. B.
580) passed.
Delegate Staton moved that S. B. 183 take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 409), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Schadler.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (S. B. 183) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates on the Consent Calendar bills and request concurrence on those requiring the same.
Second Reading
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to third reading:
S. B. 104, Repealing section of code relating to working prisoners by county commissions,
And,
Com. Sub. for S. B. 226, Relating to cross-reporting when abuse or neglect of individuals
or animals suspected; penalties.
S. B. 459, Relating to reinsurance and insolvency liability; on second reading, coming up in
regular order was read a second time.
An amendment, recommended by the Committee on Banking and Insurance, was reported
by the Clerk and adopted, amending the bill on page one, following the enacting section by striking
out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 4. GENERAL PROVISIONS.
§33-4-15. Reinsurance.
(a) For purposes of this section, an 'assumption reinsurance agreement' means any contract
which:
(1) Transfers insurance obligations and/or risks of existing or in-force contracts of insurance
from a transferring insurer to an assuming insurer; and
(2) Is intended to effect a novation of the transferred contract of insurance with the result that
the assuming insurer becomes directly liable to the policyholders of the transferring insurer and the
transferring insurer's insurance obligations and/or risks under the contracts are extinguished.
(b) An insurer shall reinsure its risks, or any part thereof, only in solvent insurers complying
with the capital and surplus requirements of section five-b, article three of this chapter.
(c) Credit for reinsurance shall be governed by the provisions of sections fifteen-a and
fifteen-b of this article. Credit shall not be allowed unless the reinsurance is payable by the assuming
insurer on the basis of the liability of the ceding insurer under the contracts reinsured without
diminution because of the insolvency of the ceding insurer nor unless under the reinsurance contract
the liability for the reinsurance is assumed by the assuming insurer or insurers as of the same
effective date.
(1) No credit shall be allowed, as an admitted asset or deduction from liability, to any ceding
insurer for reinsurance, unless the reinsurance contract provides, in substance, that in the event of
the insolvency of the ceding insurer, the reinsurance shall be payable under a contract reinsured by
the assuming insurer on the basis of reported claims allowed by the liquidation court, without
diminution because of the insolvency of the ceding insurer. Payments shall be made directly to the
ceding insurer or to its domiciliary liquidator except: (A) where the contract or other written
agreement specifically provides another payee of the reinsurance in the event of the insolvency of
the ceding insurer; or (B) where the assuming insurer, with the consent of the direct insured, has
assumed the policy obligations of the ceding insurer as direct obligations of the assuming insurer to
the payees under the policies and in substitution for the obligations of the ceding insurer to payees.
(2) The reinsurance agreement may provide that the domiciliary liquidator of an insolvent
ceding insurer shall give written notice to the assuming insurer of the pendency of a claim against
the ceding insurer on the contract reinsured within a reasonable time after the claim is filed in the
liquidation proceeding. During the pendency of the claim, any assuming insurer may investigate the
claim and interpose, at its own expense, in the proceeding where the claim is to be adjudicated any
defenses which it deems available to the ceding insurer or its liquidator. The expense may be filed
as a claim against the insolvent ceding insurer to the extent of a proportionate share of the benefit
which may accrue to the ceding insurer solely as a result of the defense undertaken by the assuming
insurer. Where two or more assuming insurers are involved in the same claim and a majority in
interest elect to interpose a defense to the claim, the expense shall be apportioned in accordance with
the terms of the reinsurance agreement as though the expense had been incurred by the ceding
insurer.
(d) Any licensed insurer may accept reinsurance for the same kinds of insurance and within
the same limits as it is authorized to transact direct insurance.
(e) A licensed insurer may reinsure all or substantially all of its risks on property or lives
located in West Virginia, or substantially all of a major class thereof, with another insurer by an assumption reinsurance agreement: Provided, That the assumption reinsurance agreement shall not
become effective unless filed in advance with and approved in writing by the Commissioner:
Provided, however, That if a licensed insurer is deemed by the Commissioner to be in hazardous
financial condition, as defined in article thirty-four-a of this chapter, or an administrative or judicial
proceeding has been instituted against it for the purpose of liquidating, reorganizing or conserving
such the insurer, and the transfer of the contracts of insurance is determined by the Commissioner
to be in the best interest of the policyholders, the Commissioner may by written order waive the
advance filing and approval required by this section, which such waiver may include a form of
implied consent and adequate notification to the policyholder of the circumstances requiring the
transfer.
(f) The Commissioner shall approve such a reinsurance agreement within one hundred twenty
days after the filing of same unless he or she finds that it is inequitable to the licensed insurer, its
owners or its policyholders or would substantially reduce the protection or service to its
policyholders. If the Commissioner does not approve the agreement, he or she shall so notify the
insurer in writing specifying his or her reasons therefor. If the Commissioner does not disapprove
the agreement within one hundred twenty days, the agreement shall be deemed approved.
(g) A filing may not be made pursuant to this section unless the reinsurance agreement is
certified under oath by responsible officers of the reinsurer and the reinsured to contain the entire
agreement between the parties to the reinsurance agreement.
(h) The Commissioner shall promulgate rules and regulations pursuant to chapter twenty-
nine-a of this code for the implementation and administration of the provisions of this section to
include, but not be limited to, the type of assumption agreements subject to the provisions of this
section, their content and the standards the Commissioner may utilize in reviewing the agreements.
(i) Any insurer subject to this section is also subject to the provisions of article thirty-eight
of this chapter.
ARTICLE 10. REHABILITATION AND LIQUIDATION.
§33-10-41. Reinsurer's liability.
The amount recoverable by the liquidator from reinsurers may not be reduced as a result of
delinquency proceedings unless the reinsurance contract provides, in substance, that in the event of
the insolvency of the ceding insurer, the reinsurance shall be payable under a contract reinsured by
the assuming insurer on the basis of reported claims allowed by the liquidation court, without
diminution because of the insolvency of the ceding insurer. The payments shall be made directly to
the ceding insurer or to its domiciliary liquidator except: (1) Where the contract or other written
agreement specifically provides another payee of the reinsurance in the event of the insolvency of
the ceding insurer; or (2) where the assuming insurer, with the consent of the direct insured, has
assumed the policy obligations of the ceding insurer as direct obligations of the assuming insurer to
the payees under the policies and in substitution for the obligations of the ceding insurer to the
payees."
There being no further amendments, the bill was then ordered to third reading.
The following bills on second reading, coming up in regular order, were each read a second
time and ordered to third reading:
S. B. 491, Repealing article establishing compact for out-of-state parolee supervision,
S. B. 657, Providing exemption to time limit for filing petition to appeal decision of Tax
Commission,
And,
S. B. 692 , Removing provision certain municipal officers required to have paid real or
property taxes prior to election.
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. 19, Eliminating Advisory Board to Secretary of Department of Health
and Human Resources and adding Office of Inspector General,
Com. Sub. for S. B. 154, Relating to beneficial use of water treatment plant sludge,
S. B. 213, Continuing Oral Health Program,
S. B. 235, Relating to National Animal Identification System,
S. B. 240, Granting state employees paid leave for organ donation,
S. B. 281, Continuing Emergency Medical Services Advisory Council,
S. B. 347, Authorizing rules of Higher Education Policy Commission and Council for
Community and Technical College Education,
Com. Sub. for S. B. 424, Relating to conservation and preservation easement,
S. B. 531, Relating to Hospice Licensure Act,
S. B. 550, Designating certain rural hospitals for Medicare Critical Access Hospital Program,
S. B. 639, Defining "electronic postmark",
S. B. 650, Relating to small claims hearings by Office of Tax Appeals,
S. B. 664, Providing county clerk assist Secretary of State in determining validity of
nominating petitions,
And,
S. B. 667, Relating to motor fuel excise tax.
The Clerk announced that, pursuant to House Rule 70a, the following requests had been filed
with him for the removal of bills from the Consent Calendar to the House Calendar:
S. B. 459, on second reading, Consent Calendar, to the House Calendar, by Delegate Trump.
S. B. 154, on first reading, Consent Calendar, to the House Calendar, by Delegate Trump.
S. B. 639, on first reading, Consent Calendar, to the House Calendar, by Delegate Trump.
And,
S. B. 650, on first reading, Consent Calendar, to the House Calendar, by Delegate Trump.
Special Calendar
Unfinished Business
S. C. R. 14, Requesting Division of Highways name bridge at Peytona, Boone County, "Charles R. Carrico Memorial Bridge"; coming up in regular order, as unfinished business, was
reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Com. Sub. for H. R. 31, Amending the rules of the House of Delegates, relating to requiring
consideration of fiscal impact of proposed crime legislation; coming up in regular order, as
unfinished business, was reported by the Clerk and adopted.
The House of Delegates next proceeded to take up consideration of a message received from
the Senate on yesterday, as to
H. B. 2813, Relating to requirements for certificate of public convenience and necessity.
On motion of Delegate Staton, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section eleven, line four, after the word "chapter," by inserting the words "nor
apply for, nor obtain any franchise, license or permit from any municipality or other governmental
agency,"
On page two, section eleven, line ten, following the word "construction", by inserting the
words "franchise, license or permit".
And,
On page four, section eleven, after line fifty-eight, by adding a new subsection, designated
subsection (c), to read as follows:
"(c) Any public utility, person or corporation proposing any electric power project that
requires a certificate under this section is not required to obtain such certificate before applying for
or obtaining any franchise, license or permit from any municipality or other governmental agency."
On motion of Delegate Staton, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 410), and there were--yeas
98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Schadler.
So, a majority of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2813) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 411), and there were--yeas 98, nays
none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Fragale and Schadler.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (H. B. 2813) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates.
Third Reading
Com. Sub. for S. B. 717, Permitting Wetzel County Hospital provide alternate retirement
plan for new employees; 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. 412),
and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being
as follows:
Absent And Not Voting: Fragale and Schadler.
So, a majority of the members present and voting having voted in the affirmative, the Speaker
declared the bill (Com. Sub. for S. B. 717) passed.
On motion of Delegates Stalnaker and Michael, the title of the bill was amended to read as
follows:
Com. Sub. for S. B. 717 - - "A Bill to amend and reenact §5-10-18 of the Code of West
Virginia, 1931, as amended, relating to permitting Wetzel County Hospital and Jobs for West
Virginia's Graduates respectively to provide an alternative retirement plan for new employees in lieu
of participation in the Public Employees Retirement System; setting forth a window of time for
members to repurchase service credit; specifying interest rate; and permitting emergency services
personnel to purchase service credit for the years one thousand nine hundred ninety to one thousand
nine hundred ninety-five; specifying the cost of the service credit; specifying interest rate; and setting forth a limited time period for emergency services personnel to make the purchase."
Delegate Staton moved that the bill take effect July 1, 2005.
On this question, the yeas and nays were taken (Roll No. 413), 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: Fragale, Porter and Schadler.
So, two thirds of the members elected to the House of Delegates having voted in the
affirmative, the Speaker declared the bill (Com. Sub. for S. B. 717) takes effect July 1, 2005.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of
Delegates and request concurrence therein.
Second Reading
S. B. 253, Permitting Insurance Commissioner waive or reduce penalty for late filing of tax
returns; was read a second time.
An amendment, recommended by the Committee on Banking and Insurance, was reported
by the Clerk and adopted, amending the bill on page two, section seven, line seven, following the
word "neglect" by striking out the words "or otherwise does not warrant the imposition of the
maximum penalty".
There being no further amendments, the bill was then ordered to third reading.
S. B. 256, Requiring insurance companies inform policyholders if flood damage not covered;
on second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 268, Relating to underage possession of beer and liquor; penalty; on
second reading, coming up in regular order, was read a second time and ordered to third reading.
Com. Sub. for S. B. 548, Relating to crime of assault and battery upon Public Service
Commission motor carrier inspectors, was read a second time.
On motion of Delegate Amores, the bill was amended on page five, line sixty-two, following
the word "in", by striking out the remainder of the bill and inserting in lieu thereof the following:
"jail for not less than one month nor more than twelve months, fined the sum of five hundred dollars,
or both. If any person commits a second such offense, he or she is guilty of a felony and, upon
conviction thereof, shall be confined in a correctional facility for not less than one year nor more than three years or fined the sum of one thousand dollars or both fined and confined. Any person who
commits a third violation of this subsection is guilty of a felony and, upon conviction thereof, shall
be confined in a correctional facility not less than two years nor more than five years or fined not
more than two thousand dollars or both fined and confined.
(d) Assault. -- Any person who unlawfully attempts to commit a violent injury to the person
of a police officer, probation officer, conservation officer, humane officer, emergency medical
service personnel, firefighter, State Fire Marshal or employee, Division of Forestry Employee,
county correctional employee, State Correctional Employee, employee of a Mass Transportation
System, Public Service Commission motor carrier inspector acting in his or her official capacity, or
unlawfully commits an act which places a police officer, probation officer, conservation officer,
humane officer, emergency medical service personnel, firefighter, Division of Forestry Employee,
county correctional employee or State Correctional Employee, employee of a Mass Transportation
System, Public Service Commission motor carrier inspector acting in his or her official capacity in
reasonable apprehension of immediately receiving a violent injury, is guilty of a misdemeanor and,
upon conviction thereof, shall be confined in jail for not less than twenty-four hours nor more than
six months, fined not more than two hundred dollars, or both fined and confined.
(e) For purposes of this section:
(1) 'Police officer' means any person employed by the State Police, any person employed by
the state to perform law-enforcement duties, any person employed by a political subdivision of this
state who is responsible for the prevention or detection of crime and the enforcement of the penal,
traffic or highway laws of this state or employed as a special police officer as defined in section
forty-one, article three of this chapter.
(2) 'Employee of an Urban Mass Transportation System' means any person employed by an
Urban Mass Transportation System as such is defined in section three, article twenty-seven, chapter
eight of this code or by a system that receives federal transit administration funding under 49 U.S.C.
§5307 or 5311.
(3) 'Division of Forestry employee' means an officer, agent, employee, or servant, whether
full-time or not, of the Division of Forestry."
There being no further amendments, the bill was then ordered to third reading.
S. B. 684, Relating to imposition of tax on privilege of severing natural gas or oil, was read
a second time.
Delegate Michael moved to amend the bill on page two, following the enacting clause, by
striking out the remainder of the bill and inserting in lieu thereof the following:
"That §11-13A-3a, §11-13A-3b and §11-13A-3d of the Code of West Virginia, 1931, as
amended, be amended and reenacted; and that said code be amended by adding thereto a new section,
designated §11-13A-5b, all to read as follows:
ARTICLE 13A. SEVERANCE TAXES.
§11-13A-3a. Imposition of tax on privilege of severing natural gas or oil; Tax Commissioner
to develop a uniform reporting form.
(a) Imposition of tax. -- For the privilege of engaging or continuing within this state in the
business of severing natural gas or oil for sale, profit or commercial use, there is hereby levied and
shall be collected from every person exercising such privilege an annual privilege tax: Provided,
That effective for all taxable periods beginning on or after the first day of January, two thousand,
there is an exemption from the imposition of the tax provided for in this article on the following:
(1) Free natural gas provided to any surface owner; (2) natural gas produced from any well which
produced an average of less than five thousand cubic feet of natural gas per day during the calendar
year immediately preceding a given taxable period; (3) oil produced from any oil well which
produced an average of less than one-half barrel of oil per day during the calendar year immediately
preceding a given taxable period; and (4) for a maximum period of ten years, all natural gas or oil
produced from any well which has not produced marketable quantities of natural gas or oil for five
consecutive years immediately preceding the year in which a well is placed back into production and
thereafter produces marketable quantities of natural gas or oil.
(b) Rate and measure of tax. --
(1) The tax imposed in subsection (a) of this section shall be five percent of the gross value
of the natural gas or oil produced, as shown by the gross proceeds derived from the sale thereof by
the producer, except as otherwise provided in this article.
(2) With respect to natural gas produced from wells placed in service on or before the
thirtieth day of November, two thousand five, the tax imposed in subsection (a) of this section shall
be five percent of the gross value of the natural gas produced, as shown by the gross proceeds
derived from the sale thereof by the producer, except as otherwise provided in this article.
(3) With respect to natural gas produced from wells placed in service on or after the first day
of December, two thousand five, the tax imposed in subsection (a) of this section shall be four
percent of the gross value of the natural gas produced, as shown by the gross proceeds derived from
the sale thereof by the producer, except as otherwise provided in this article.
(c) Tax in addition to other taxes. -- The tax imposed by this section shall apply to all persons
severing gas or oil in this state, and shall be in addition to all other taxes imposed by law.
(d)(1) The Legislature finds that in addition to the production reports and financial records
which must be filed by oil and gas producers with the State Tax Commissioner in order to comply
with this section, oil and gas producers are required to file other production reports with other
agencies, including, but not limited to, the office of oil and gas, the Public Service Commission and
county assessors. The reports required to be filed are largely duplicative, the compiling of the
information in different formats is unnecessarily time consuming and costly, and the filing of one
report or the sharing of information by agencies of government would reduce the cost of compliance
for oil and gas producers.
(2) On or before the first day of July, two thousand three, the Tax Commissioner shall design
a common form that may be used for each of the reports regarding production that are required to
be filed by oil and gas producers, which form shall readily permit a filing without financial
information when such information is unnecessary. The Commissioner shall also design such forms
so as to permit filings in different formats, including, but not limited to, electronic formats.
§11-13A-3b. Imposition of tax on privilege of severing timber.
(a) Imposition of tax. -- For the privilege of engaging or continuing within this state in the
business of severing timber for sale, profit or commercial use, there is hereby levied and shall be
collected from every person exercising such privilege an annual privilege tax.
(b) Rate and measure of tax. -- The tax imposed in subsection (a) of this section shall be three and twenty-two hundredths percent of the gross value of the timber produced, as shown by the
gross proceeds derived from the sale thereof by the producer, except as otherwise provided in this
article: Provided, That the tax imposed in subsection (a) of this section on timber produced on or
after the first day of December, two thousand five, shall be one and twenty-two hundredths percent
of the gross value of the timber produced, as shown by the gross proceeds derived from the sale
thereof by the producer, except as otherwise provided in this article.
(c) Tax in addition to other taxes. -- The tax imposed by this section shall apply to all
persons severing timber in this state, and shall be in addition to all other taxes imposed by law.
(d) Effective date. -- This section, as amended in the year one thousand nine hundred
ninety-three, shall apply to gross proceeds derived after the thirty-first day of May of such year. The
language of section three of this article, as in effect on the first day of January of such year, shall
apply to gross proceeds derived prior to the first day of June of such year and, with respect to such
gross income, shall be fully and completely preserved.
§11-13A-3d. Imposition of tax on privilege of severing coalbed methane.
(a) The Legislature hereby finds and declares the following:
(1) That coalbed methane is underdeveloped and an under-utilized resource within this state
which, where practicable, should be captured and not be vented or wasted;
(2) The health and safety of persons engaged in coal mining is a paramount concern to the
state. The Legislature intends to preserve coal seams for future safe mining, to facilitate the
expeditious, safe evacuation of coalbed methane from the coalbeds of this state, and to ensure the
safety of miners by encouraging the advance removal of coalbed methane;
(3) The United States Environmental Protection Agency's Coalbed Methane Outreach
Program encourages United States coal mines in the United States to remove and use methane that
is otherwise wasted during mining. These projects have important economic benefits for the mines
and their local economies while they also reduce emissions of methane; and
(4) The initial costs of development of coalbed methane wells can be large in comparison to
conventional wells and deoxygenation and water removal increase development expenditures.
The Legislature, therefore, concludes that an incentive to coalbed methane development should be implemented to encourage capture of methane gas that would otherwise be vented to the
atmosphere.
(b) Imposition of tax. -- In lieu of the annual privilege tax imposed on the severance of
natural gas or oil pursuant to section three-a, article thirteen-a, for the privilege of engaging or
continuing within this state in the business of severing coalbed methane for sale, profit or
commercial use, there is hereby levied and shall be collected from every person exercising such
privilege an annual privilege tax: Provided, That effective for taxable years beginning on or after
the first day of January, two thousand one, there is an exemption from the imposition of the tax
provided for in this article for a maximum period of five years for all coalbed methane produced
from any coalbed methane well placed in service after the first day of January, two thousand. For
purposes of this section, the terms 'coalbed methane' and 'coalbed methane well' have the meaning
ascribed to them in section two, article twenty-one, chapter twenty-two of this code. The exemption
from tax provided by this section is applicable to any coalbed methane well placed in service before
the first day of January, two thousand eleven December, two thousand five.
(c) Rate and measure of tax. -- The tax imposed on subsection (b) of this section is five
percent of the gross value of the coalbed methane produced, as shown by the gross proceeds derived
from the sale thereof by the producer, except as otherwise provided in this article: Provided, That
for tax years beginning on or after the first day of January, two thousand five, the tax imposed in
subsection (b) of this section is four percent of the gross value of the coalbed methane gas produced
on or after the first day of December, two thousand five, as shown by the gross proceeds derived
from the sale thereof by the producer, except as otherwise provided in this article.
(d) Tax in addition to other taxes. -- The tax imposed by this section applies to all persons
severing coalbed methane in this state, and is in addition to all other taxes imposed by law.
(e) Except as specifically provided in this section, application of the provisions of this article
apply to coalbed methane in the same manner and with like effect as the provisions apply to natural
gas.
§11-13A-5b. Dedication of ten percent of coalbed methane severance tax for benefit of
counties and municipalities; distribution of major portion of such dedicated tax to coalbed methane producing counties; distribution of minor portion of
such dedicated tax to all counties and municipalities; reports; rules; special
funds in the office of state treasurer; methods and formulae for distribution
of such dedicated tax; expenditure of funds by counties and municipalities
for public purposes; and requiring special county and municipal budgets
and reports thereon.
(a) Effective the first day of December, two thousand five, ten percent of the tax attributable
to the severance of coalbed methane imposed by section three-d of this article is hereby dedicated
for the use and benefit of counties and municipalities within this state and shall be distributed to the
counties and municipalities as provided in this section.
(b) Seventy-five percent of this dedicated tax shall be distributed by the state treasurer in the
manner specified in this section to the various counties of this state in which the coalbed methane
upon which this additional tax is imposed was located at the time it was removed from the ground.
Those counties are referred to in this section as the 'coalbed methane producing counties'. The
remaining twenty-five percent of the net proceeds of this additional tax on coalbed methane shall be
distributed among all the counties and municipalities of this state in the manner specified in this
section.
(c) The tax commissioner is hereby granted plenary power and authority to promulgate
reasonable rules requiring the furnishing by coalbed methane producers of such additional
information as may be necessary to compute the allocation required under the provisions of
subsection (f) of this section. The tax commissioner is also hereby granted plenary power and
authority to promulgate such other reasonable rules as may be necessary to implement the provisions
of this section.
(d) In order to provide a procedure for the distribution of seventy-five percent of the
dedicated tax on coalbed methane to the coalbed methane producing counties, a special fund known
as the "coalbed methane county revenue fund" is hereby established in the state treasurer`s office.
In order to provide a procedure for the distribution of the remaining twenty-five percent of the
dedicated tax on coalbed methane to all counties and municipalities of the state, without regard to coalbed methane having been produced in those counties or municipalities, a special fund known
as the 'all counties and municipalities coalbed methane revenue fund' is hereby established in the
state treasurer's office. Seventy-five percent of the dedicated tax on coalbed methane shall be
deposited in the 'coalbed methane county revenue fund' and twenty-five percent of the dedicated tax
on coalbed methane shall be deposited in the 'all counties and municipalities coalbed methane
revenue fund', from time to time, as the proceeds are received by the tax commissioner. The moneys
in the funds shall be distributed to the respective counties and municipalities entitled to the moneys
in the manner set forth in subsection (e) of this section.
(e) The moneys in the 'coalbed methane county revenue fund' and the moneys in the 'all
counties and municipalities coalbed methane revenue fund' shall be allocated among and distributed
annually to the counties and municipalities entitled to the moneys by the state treasurer in the manner
specified in this section. On or before each distribution date, the state treasurer shall determine the
total amount of moneys in each fund which will be available for distribution to the respective
counties and municipalities entitled to the moneys on that distribution date. The amount to which
an coalbed methane producing county is entitled from the 'coalbed methane county revenue fund'
shall be determined in accordance with subsection (f) of this section, and the amount to which every
county and municipality shall be entitled from the 'all counties and municipalities coalbed methane
revenue fund' shall be determined in accordance with subsection (g) of this section. After
determining, as set forth in subsections (f) and (g) of this section, the amount each county and
municipality is entitled to receive from the respective fund or funds, a warrant of the state auditor
for the sum due to the county or municipality shall issue and a check drawn thereon making payment
of the sum shall thereafter be distributed to the county or municipality.
(f) The amount to which an coalbed methane producing county is entitled from the'coalbed
methane county revenue fund' shall be determined by dividing the total amount of moneys in the
fund derived from tax on the severance of coalbed methane then available for distribution by the total
volume of cubic feet of coalbed methane extracted in this state during the preceding year and
multiplying the quotient thus obtained by the number of cubic feet of coalbed methane taken from
the ground in the county during the preceding year.
(g) The amount to which each county and municipality is entitled from the 'all counties and
municipalities coalbed methane revenue fund' shall be determined in accordance with the provisions
of this subsection. For purposes of this subsection 'population' means the population as determined
by the most recent decennial census taken under the authority of the United States:
(1) The treasurer shall first apportion the total amount of moneys available in the 'all
counties and municipalities coalbed methane revenue fund' by multiplying the total amount in the
fund by the percentage which the population of each county bears to the total population of the state.
The amount thus apportioned for each county is the county`s 'base share'.
(2) Each county`s 'base share' shall then be subdivided into two portions. One portion is
determined by multiplying the 'base share' by that percentage which the total population of all
unincorporated areas within the county bears to the total population of the county, and the other
portion is determined by multiplying the 'base share' by that percentage which the total population
of all municipalities within the county bears to the total population of the county. The former portion
shall be paid to the county and the latter portion shall be the 'municipalities` portion' of the county`s
'base share'. The percentage of the latter portion to which each municipality in the county is entitled
shall be determined by multiplying the total of the latter portion by the percentage which the
population of each municipality within the county bears to the total population of all municipalities
within the county.
(h) Moneys distributed to any county or municipality under the provisions of this section,
from either or both special funds, shall be deposited in the county or municipal general fund and may
be expended by the county commission or governing body of the municipality for such purposes as
the county commission or governing body shall determine to be in the best interest of its respective
county or municipality: Provided, That in counties with population in excess of two hundred
thousand, at least seventy-five percent of the funds received from the coalbed methane county
revenue fund shall be apportioned to and expended within the coalbed methane producing area or
areas of the county, the coalbed methane producing areas of each county to be determined generally
by the state tax commissioner: Provided, however, That the moneys distributed to any county or
municipality under the provisions of this section shall not be budgeted for personal services in an amount to exceed one fourth of the total amount of the moneys.
(i) On or before the first day of November, two thousand five and each first day of November
thereafter, each county commission or governing body of a municipality receiving any such moneys
shall submit to the tax commissioner on forms provided by the tax commissioner a special budget,
detailing how the moneys are to be spent during the subsequent fiscal year. The budget shall be
followed in expending the moneys unless a subsequent budget is approved by the state tax
commissioner. All unexpended balances remaining in the county or municipality general fund at the
close of a fiscal year shall remain in the general fund and may be expended by the county or
municipality without restriction.
(j) On or before the fifteenth day of December, two thousand five, and each fifteenth day of
December thereafter, the tax commissioner shall deliver to the clerk of the Senate and the clerk of
the House of Delegates a consolidated report of the budgets, created by subsection (i) of this section,
for all county commissions and municipalities as of the fifteenth day of July of the current year.
(k) The state tax commissioner shall retain for the benefit of the state from the dedicated tax
attributable to the severance of coalbed methane the amount of thirty-five thousand dollars annually
as a fee for the administration of the additional tax by the tax commissioner."
At the request of Delegate Staton and by unanimous consent, the bill was advanced to third
reading with the amendment offered by Delegate Michael pending.
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. 107, Relating to hunting with dogs on land of another without
permission,
S. B. 214, Continuing Acupuncture Board,
S. B. 215, Continuing Board of Accountancy,
Com. Sub. for S. B. 414, Relating to child passenger safety and booster seats,
S. B. 513, Relating to tax credits for qualified centers for economic development and
technology advancement,
S. B. 582, Granting concurrent jurisdiction to family court and circuit court to set support in
abuse and neglect cases,
S. B. 616, Relating to priority of legislative business for members and certain employees of
Legislature,
S. B. 644, Defining certain terms used in consumers sales and service tax,
S. B. 731, Making supplementary appropriation of federal funds to Department of
Transportation, Division of Public Transit,
S. B. 732, Making supplementary appropriation from state fund to Department of
Transportation, Aeronautics Commission,
S. B. 733, Making supplementary appropriation of federal funds to Department of
Transportation, Aeronautics Commission,
S. B. 734, Making supplementary appropriation of federal funds to Miscellaneous Boards and
Commissions, State Mapping and Addressing Board,
S. B. 739, Making supplementary appropriation to Department of Health and Human
Resources, Division of Health, Hepatitis B Vaccine,
And,
S. B. 744, Clarifying criteria for employee to sustain lawsuit for intentional injury.
Leaves of Absence
At the request of Delegate Staton, and by unanimous consent, leaves of absence for the day
were granted Delegates Fragale and Schadler.
At 11:47 a.m., the House of Delegates adjourned until 11:30 a.m., Wednesday, April 6, 2005.