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sdj-57th day
WEST VIRGINIA LEGISLATURE

SENATE JOURNAL

EIGHTIETH LEGISLATURE

REGULAR SESSION, 2011

FIFTY-SEVENTH DAY

____________

Charleston, W. Va., Wednesday, March 9, 2011

The Senate met at 11 a.m.
(Senator Kessler, Acting President, in the Chair.)

Prayer was offered by the Reverend Brian O'Donnell, S. J., Executive Secretary, Catholic Conference of West Virginia, Charleston, West Virginia.
Pending the reading of the Journal of Tuesday, March 8, 2011,
On motion of Senator Edgell, the Journal was approved and the further reading thereof dispensed with.
The Senate proceeded to the second order of business and the introduction of guests.
The Senate then proceeded to the third order of business.
A message from The Clerk of the House of Delegates announced the amendment by that body, passage as amended with its House of Delegates amended title, to take effect from passage, and requested the concurrence of the Senate in the House of Delegates amendments, as to
Eng. Com. Sub. for Senate Bill No. 282, Continuing Highway Design-Build Pilot Program.
On motion of Senator Unger, the message on the bill was taken up for immediate consideration.
The following House of Delegates amendments to the bill were reported by the Clerk:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2D. HIGHWAY DESIGN-BUILD PILOT PROGRAM.
§17-2D-2. Highway Design-Build Pilot Program.
(a) Notwithstanding any provision of this code to the contrary, the Commissioner of the West Virginia Division of Highways may continue with the pilot program to expedite the construction of no more than ten special projects after the effective date of the amendment to this article in the regular session of 2011, in addition to the three projects authorized by prior enactment of this section, by combining the design and construction elements of a highway or bridge project into a single contract.
(b) A design-build project may not be let to contract after June 30, 2011 2013. The Division of Highways may expend no more than $50 $75 million in each of the three two years remaining in the pilot program for an after the effective date of the amendment to this article in the regular session of 2011: Provided, That if any of the $75 million is unused in the first year, the remaining amount may be applied to the following year's amount: Provided, however, That the total aggregate total of amount to be expended after the effective date of the amendment to this article in the regular session of 2011 may not exceed $150 million.
(c) A design-build project may be let to contract only in accordance with the commissioner's established policies and procedures concerning design-build projects.
(d) After June 30, 2011, no 2013, projects may not be let under the provisions of this article unless the West Virginia Legislature either approves additional projects or makes the program permanent.
(e) Projects receiving special funding above the regular federal core funding including any Competitive Surface Transportation Grants received as a result of the American Recovery and Reinvestment Act of 2009, may utilize the pilot program, but shall not be included in the total number of projects or expenditure limits provided by subsections (a) and (b) of this section.
(f) Effective after the effective date of the amendment to this article in the regular session of 2011, no consultant engineer who prepares preliminary plans, planning reports or other project development products for a project pursuant to the provisions of this section may participate in the construction of that project.
§17-2D-5. Report to the Legislature.
On or before December 1, 2011 2013, the commissioner shall prepare and submit to the Joint Standing Committee on Government Organization a report evaluating the experience of the Division of Highways with each project, including whether the division realized any cost or time savings, the number and cost of change orders, the quality of work performed, the number of bids received and other issues the commissioner considers appropriate.;
And,
By striking out the title and substituting therefor a new title, to read as follows:
Eng. Com. Sub. for Senate Bill No. 282--A Bill to amend and reenact §17-2D-2 and §17-2D-5 of the Code of West Virginia, 1931, as amended, all relating to the Highway Design-Build Pilot Program; continuing the Highway Design-Build Pilot Program for two years; increasing the annual amounts which may be expended on design-build projects; authorizing additional projects after the effective date of this amendment; and providing that consultant engineers involved in the preliminary planning of a design-build project may not participate in the construction of that project.
On motion of Senator Unger, the Senate concurred in the House of Delegates amendments to the bill.
Engrossed Committee Substitute for Senate Bill No. 282, as amended by the House of Delegates, was then put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for S. B. No. 282) passed with its House of Delegates amended title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for S. B. No. 282) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the passage, to take effect July 1, 2011, of
Eng. Senate Bill No. 413, Changing title of Racing Commission's racing secretary.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the adoption of
Senate Concurrent Resolution No. 60, Requesting DOH name 35th Street bridge in Charleston "Kaufman Memorial 35th Street Bridge".
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendments to, and the passage as amended, to take effect from passage, of
Eng. Com. Sub. for House Bill No. 2525, Relating to the practice of social work.
A message from The Clerk of the House of Delegates announced the concurrence by that body in the Senate amendment to, and the passage as amended, to take effect July 1, 2011, of
Eng. House Bill No. 2871, Relating to brownfield economic development districts.
A message from The Clerk of the House of Delegates announced that that body had agreed to the appointment of a committee of conference of five from each house on the disagreeing votes of the two houses, as to
Eng. Com. Sub. for House Bill No. 2879, Providing a one-time, nonbase building, supplemental salary increase for all eligible state employees.
The message further announced the appointment of the following conferees on the part of the House of Delegates:
Delegates T. Campbell, M. Poling, Fleischauer, Anderson and Ellem.
A message from The Clerk of the House of Delegates announced the adoption by that body and requested the concurrence of the Senate in the adoption of
House Concurrent Resolution No. 128--Including West Virginia Route 80 in Mingo County as a Blue Star Memorial Highway.
Referred to the Committee on Transportation and Infrastructure.
Executive Communications

Senator Kessler (Acting President) laid before the Senate the following proclamation from His Excellency, the Governor, extending this current legislative session until and including the fifteenth day of March, two thousand eleven, which was received and read by the Clerk:
STATE OF WEST VIRGINIA

EXECUTIVE DEPARTMENT

Charleston

A P R O C L A M A T I O N

By the Governor

WHEREAS, The Constitution of West Virginia delineates the respective powers, duties and responsibilities of the three separate branches of government; and
WHEREAS, Article VI, Section 22 of the Constitution of West Virginia provides that this regular session of the Legislature not exceed sixty calendar days computed from and including the second Wednesday of January; and
WHEREAS, Pursuant to Article VI, Section 22 of the Constitution of West Virginia, the 2011 regular session of the Legislature concludes on March 12, 2011; and
WHEREAS, Article VI, Section 51 of the Constitution of West Virginia sets forth the legal authority of the Governor and the Legislature relating to the preparation and enactment of the Budget Bill; and
WHEREAS, Subsection D of said section requires the Governor to issue a proclamation to extend the regular session of the Legislature if the Budget Bill shall not have been fully acted upon by the Legislature three days before the expiration of its regular session;
WHEREAS, The Legislature has not finally acted upon the Budget Bill three days before the expiration of this current regular session of the State Legislature.
NOW, THEREFORE, I, EARL RAY TOMBLIN, by virtue of the authority vested in me as the Governor of the State of West Virginia, do hereby issue the following proclamation, in accordance with Article VI, Section 51, Subsection D(8) of the Constitution of West Virginia, extending this regular session of the State Legislature for consideration of the Budget Bill for a period not to exceed three days beyond the conclusion of this regular session, including any extension thereof, under the provisions of Article VI, Section 22 of the Constitution of West Virginia; but no matters other than the Budget Bill and a provision for the cost of said extended session shall be considered during this extension of the session.
IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of West Virginia to be affixed.
DONE at the Capitol in the City of Charleston, State of West Virginia, on this the ninth day of March, in the year of our Lord, Two Thousand Eleven, and in the One Hundred Forty-Eighth year of the State.

EARL RAY TOMBLIN,
Governor.
By the Governor:

NATALIE E. TENNANT,
Secretary of State.
The Senate proceeded to the fourth order of business.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2096, Relating to arts, entertainment and enterprise districts.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2096) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on Government Organization pending.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2732, West Virginia Public Campaign Financing Act.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2732) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance, with amendments from the Committee on the Judiciary pending.
The Senate proceeded to the sixth order of business.
Senators Kessler (Acting President), Unger, Browning, Foster, Stollings, McCabe, Yost and Klempa offered the following resolution:
Senate Concurrent Resolution No. 62--Requesting the Joint Committee on Government and Finance to authorize the Joint Interim Committee on Economic Development to study efficient mineral development by cotenancy and unitization.
Whereas, West Virginia has been blessed with ample supplies of natural resources; and
Whereas, The production of natural resources has been a foundation of the state's economy, domestic energy and National Security and is the largest contributor to West Virginia's Gross Domestic Product (GDP); and
Whereas, The efficient and safe production of natural resources makes West Virginia an integral supplier of the most commonly used fuel sources in electric generation and home and industrial heating in the US; and
Whereas, The state's natural resource industries employ thousands of state residents, pay hundreds of millions of dollars in wages and state business taxes; and
Whereas, Recent shale gas discovery and development has resulted in significant economic opportunity for West Virginia; and
Whereas, The efficient production of natural resources is critical to maintain West Virginia's role as a major supplier of this nation's energy needs; and
Whereas, West Virginia is one of only three states that requires the consent of all partial mineral interests before natural resource production can commence; and
Whereas, This limited legal principal creates a deleterious effect on the rights of majority mineral owners in West Virginia and results in the inefficient development and waste of West Virginia' s natural resources; and
Whereas, The West Virginia Legislature finds that efficient and equitable mineral development is a cornerstone of the state's economy; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance authorize the Joint Interim Committee on Economic Development to study efficient mineral development by cotenancy and unitization; and, be it
Further Resolved, That the Joint Interim Committee on Economic Development report to the Joint Committee on Government and Finance prior to the first day of the regular session, 2012, on its findings, conclusions and recommendations together with drafts of any legislation to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
Which, under the rules, lies over one day.
Senators Chafin, Fanning, Stollings and Yost offered the following resolution:
Senate Concurrent Resolution No. 63--Requesting the Division of Highways to name bridge number 30-6-0.52, in Mingo County, the "Reverend Arnold and Nell Mollette Memorial Bridge".
Whereas, The Reverend Arnold Mollette served the Lord for more than 55 years as pastor of the Red Jacket Community Church in Red Jacket, West Virginia; and
Whereas, The Reverend Arnold Mollette was a charter member of the Red Jacket Kiwanis Club, having held various offices over the years; and
Whereas, The Reverend Arnold Mollette taught school for more than 25 years, becoming one of the first guidance counselors in the history of Mingo County at Matewan High School; and
Whereas, The Reverend Arnold Mollette was also a charter member of the Magnolia Ministerial Association, serving I several capacities; and
Whereas, The Reverend Arnold Mollette served two terms on the Board of Trustees of the South Williamson Appalachian Regional Hospital; and
Whereas, The Reverend Arnold Mollette was married to his beloved Nell, who also made many contributions to the community; and
Whereas, Nell Mollette was a teacher for more than 40 years in the public school system at Red Jacket Junior High and Grade School; and
Whereas, Nell Mollette was a member and leader of the Matewan Woman's Club and charter member and officer of the RJCC WOTC; and
Whereas, It is fitting, to honor the Reverend Arnold Mollette and his wife Nell by naming this bridge as a memorial to their lives; therefore, be it
Resolved by the Legislature of West Virginia:
That the Legislature hereby requests the Division of Highways to name bridge number 30-6-0.52, in Mingo County, the "Reverend Arnold and Nell Mollette Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is hereby requested to have made and be placed signs identifying the bridge as the "Reverend Arnold and Nell Mollette Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and the family of the Reverend Arnold and Nell Mollette.
Which, under the rules, lies over one day.
Senators Miller, Wills, Laird, Helmick, Fanning, Unger, Jenkins, Tucker, Browning, Foster, Stollings, McCabe, Kessler (Acting President), Plymale, Minard, Williams and Yost offered the following resolution:
Senate Resolution No. 48--Memorializing the life of the Honorable Ralph Dale Williams, former member of the West Virginia Senate and dedicated public servant.
Whereas, Ralph Dale Williams was born February 16, 1928, in Trout, West Virginia, son of the late John Dorsey and Verna Susan Viers Williams; and
Whereas, Ralph Dale Williams graduated from Rainelle High School in 1946, and from Marshall College in Huntington in 1950, with a bachelor of science degree in accounting; and
Whereas, Ralph Dale Williams, following his dedicated military service during the Korean War as a corporal in the Army Finance Corps, returned to Greenbrier County, where he invested his life into the service of others; and
Whereas, Ralph Dale Williams began as a loan officer at the East Rainelle Finance Company, then started his own accounting business in 1959, and also became a State Farm Insurance Agent with over 52 years of Good Neighbor Service; and
Whereas, Ralph Dale Williams was elected to the West Virginia Senate in 1970, and represented the 11th Senatorial District for 16 years, in which time he served as Chairman of the Finance Committee, Natural Resources Committee, Education Committee, Chairman of the Committee on Military, Chairman of Insurance & Corporations, Chairman of Banking & Insurance, and Chairman of Legislature Rule-Making Committee; and
Whereas, Ralph Dale Williams was a faithful member of Sewell Valley Baptist Church and supporter of Rainelle Christian Academy; and
Whereas, Ralph Dale Williams participated in a myriad of civic organizations including as a member of Rainelle Lions Club for 55 years and past district governor of the Lions Clubs International, representing District 29-N, member of Midland Trail Masonic Lodge 166 for 49 years; and
Whereas, Ralph Dale Williams was Chairman of the board of directors of the Rainelle Medical Center, Chairman of the board of directors of First State Bank & Trust, member of the West Virginia Port Authority, Chairman of the Greenbrier Valley Airport Authority for 26 years, member of the West Virginia Osteopathic Medical Review Board, and received an honorary doctorate degree from the West Virginia Osteopathic School of Medicine, President of Western Greenbrier Development Corporation, President of Greenbrier Woods Corporation, President of Community Aide Inc., member of the Greenbrier Historical Society, lobbyist for West Virginia Architects & Engineers, founding Chairman of the West Virginia State Farm Agents PAC; and
Whereas, Ralph Dale Williams was awarded the Leonard Jarrett and a Melvin Jones Fellow awards, was named the Western and Greenbrier Area Chamber of Commerce Man of the Year 1973, and Western Greenbrier Area Chamber of Commerce Citizen of the Year 1977; and
Whereas, Ralph Dale Williams was an avid outdoorsman and loved spending quality time with his loving family, hunting and fishing at the family camp on Anthony Creek in the Monongahela National Forest; and
Whereas, Ralph D. Williams was married to his beloved wife of 54 years, Evelyn, with whom he shared the joy of having three sons, Alan Dale Schoolcraft-Williams, Mark Kevin Williams and wife, Michelle, and Barry Lee Williams and wife, Robin; and daughter, Myra Dawn and husband, Danny Vestal, all of Rainelle; five grandchildren, Matthew and his wife, Samantha, Krista, Jordan, Joyce Ann "J.J." Schoolcraft-Williams II and Garrett Vestal; and one great-granddaughter, Kayleigh; and
Whereas, Sadly, the Honorable Ralph Dale Williams passed away on February 7, 2011, bringing an end to a long and productive life of dedication and commitment to his community and state; therefore, be it
Resolved by the Senate:
That this Senate hereby memorializes the life of the Honorable Ralph Dale Williams, former member of the West Virginia Senate and dedicated public servant; and, be it
Further Resolved, That the Senate extends its sincere sympathy at the passing of the Honorable Ralph Dale Williams; and, be it
Further Resolved, That the Clerk is hereby directed to forward a copy of this resolution to the family of the Honorable Ralph Dale Williams.
At the request of Senator Miller, unanimous consent being granted, the resolution was taken up for immediate consideration, reference to a committee dispensed with, and adopted.
Thereafter, at the request of Senator Miller, and by unanimous consent, the remarks by Senator Fanning regarding the adoption of Senate Resolution No. 48 were ordered printed in the Appendix to the Journal.
At the request of Senator Unger, and by unanimous consent, the Senate returned to the fourth order of business.
Senator Kessler (Acting President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Concurrent Resolution No. 38, Requesting Joint Committee on Government and Finance study needs, challenges and issues facing West Virginians with Alzheimer's.
And,
Senate Concurrent Resolution No. 44, Requesting Joint Committee on Government and Finance study utility services.
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair ex officio.
Senator Browning, from the Committee on Economic Development, submitted the following report, which was received:
Your Committee on Economic Development has had under consideration
Senate Concurrent Resolution No. 64 (originating in the Committee on Economic Development)--Requesting the Joint Committee on Government and Finance study legislation that would encourage the development of small businesses throughout the state.
Whereas, Small businesses are an integral part of the West Virginia economy; and
Whereas, Ninety-seven percent of the state's companies are small businesses; and
Whereas, Small businesses employ more than 300,000 West Virginians; and
Whereas, The West Virginia Small Business Development Center has created 3,777 jobs in this state from October 2009 to March 2011 which has resulted in investment in this state of $24,441,823; and
Whereas, Small businesses that develop and grow in West Virginia are likely to remain in West Virginia if such small businesses are able to reach their full potential; and
Whereas, Fostering an environment where small businesses can grow and thrive is in the best interest of West Virginia; and
Whereas, West Virginia is in dire need of legislation aimed at encouraging the growth of small businesses throughout the state; and
Whereas, A careful review of potential incentives and current regulations is necessary in order to determine the measures necessary to develop a better environment for small businesses; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to conduct a study of potential legislation that would encourage the development of small business throughout the state; and, be it
Further Resolved, That it is necessary for any committee appointed to study such legislation be authorized to meet more than once a month and be provided with adequate staff in order to accomplish its goals; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Legislature, on the first day of the regular session, 2012 on its findings, conclusions and recommendations together with drafts of any legislation to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to fund the necessary staff, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Richard Browning,
Chair.
At the request of Senator Browning, unanimous consent being granted, the resolution (S. C. R. No. 64) contained in the preceding report from the Committee on Economic Development was taken up for immediate consideration.
On motion of Senator Browning, the resolution was referred to the Committee on Rules.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Concurrent Resolution No. 65 (originating in the Committee on Government Organization)--Requesting a study on the creation of a Fiscal and Policy Division under the Joint Committee on Government and Finance.
Whereas, The Legislature, in order to function as a coequal branch of government, seeks to emphasize the need to obtain accurate information regarding the fiscal impact and policy implications of proposed legislation; and
Whereas, In order to obtain fiscal information on proposed legislation, the legislature is, at present, dependent upon executive branch agencies and affected interest groups; and
Whereas, Establishing a Fiscal and Policy Division under the Joint Committee on Government and Finance would assist legislators in obtaining an unbiased and comprehensive fiscal note on proposed legislation; and
Whereas, A Fiscal and Policy Division under the legislative branch of government would advance taxpayer confidence in the operations of state government; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the need to create a Fiscal and Policy Division under the Joint Committee on Government and Finance; and, be it
Further Resolved, That the Joint Committee on Government and Finance is requested to study the fiscal impact of the establishment of a Fiscal and Policy Division under the legislative branch of West Virginia; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2012, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare and draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 65) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.
On motion of Senator Snyder, the resolution was referred to the Committee on Rules.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Senate Concurrent Resolution No. 66 (originating in the Committee on Government Organization)--Requesting the Joint Committee on Government and Finance study the implementation of comprehensive, standardized procedures by the West Virginia Department of Environmental Protection for environmental sampling and the educating, training, assessment and certification of those collecting the environmental samples.
Whereas, The West Virginia Department of Environmental Protection issues and monitors thousands of permits and orders and takes other actions related to the protection of West Virginia's natural environment; and
Whereas, Tens of thousands of environmental samples are collected and analyzed and the data submitted to the West Virginia Department of Environmental Protection for use by the Department in fulfilling its duties; and
Whereas, Many different entities, both public and private, perform environmental sampling and submit their data to the West Virginia Department of Environmental Protection; and
Whereas, Those entities perform environmental sampling through various methods and instruments and in differing quantities and qualities; and
Whereas, Those entities employ and utilize environmental sample collectors that have received varying levels of education and training; and
Whereas, There are limited standard procedures for: the collecting, measuring and analyzing of field samples; the submission of data; the use of field measurement instruments used in environmental sampling; and the educating, training, assessment and certification of environmental sample collectors; and
Whereas, The West Virginia Department of Environmental Protection, and the entities it regulates, would benefit from comprehensive, standardized procedures for environmental sampling to ensure that the highest quality and accurate environmental samples and data are collected and used; and
Whereas, The protection of West Virginia's natural environment is of major concern to all our citizens, it is in the best interest of the State of West Virginia to implement comprehensive, standardized procedures for environmental sampling and the educating, training, assessment and certification of those collecting samples; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the implementation of comprehensive, standardized procedures by the West Virginia Department of Environmental Protection for environmental sampling and the educating, training, assessment and certification of those collecting the environmental samples; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2012, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the resolution (S. C. R. No. 66) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration.
On motion of Senator Snyder, the resolution was referred to the Committee on Rules.
Senator Kessler (Acting President), from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration
Senate Resolution No. 49 (originating in the Committee on Rules)--Authorizing the Senate Committee on Confirmations to meet and be paid during interims between regular sessions of the Eightieth Legislature.
Whereas, Section one, article one, chapter four of the Code of West Virginia, 1931, as amended, provides that either house of the Legislature may, by resolution, direct any select committee unique to that house or any standing committee of that house and created by it by rule, motion or resolution to meet between regular sessions of the Legislature; and
Whereas, The West Virginia Senate is vested with the authority, under sections eight and nine, article VII of the Constitution of West Virginia, to advise and consent to certain gubernatorial nominations and certain other nominations as determined by law; and
Whereas, The Committee on Confirmations is a standing committee of the Senate with authority to make recommendations and report to the Senate with respect to such nominations; therefore, be it
Resolved by the Senate:
That the Senate hereby authorizes its Committee on Confirmations to meet and be paid during interims between regular sessions of the Eightieth Legislature; and, be it
Further Resolved, That the Committee on Confirmations is hereby authorized to meet at times subject to the approval of the presiding officer of the Senate; and, be it
Further Resolved, That the purpose of any such meetings would relate to gathering of information regarding prospective matters involving duties of the Senate related to advice and consent as to nominations; and, be it
Further Resolved, That members of such committee are hereby authorized by the Senate Committee on Rules to receive payment of travel and interim expenses and other compensation as provided by law.
And reports the same back with the recommendation that it be adopted.
Respectfully submitted,
Jeffrey V. Kessler,
Chair.
At the request of Senator K. Facemyer, unanimous consent being granted, the Senate returned to the consideration of
Senate Resolution No. 48, Memorializing life of Honorable Ralph Dale Williams.
On motion of Senator Helmick, the Senate reconsidered its action by which in earlier proceedings today it adopted Senate Resolution No. 48.
The vote thereon having been reconsidered,
The question again being on the adoption of the resolution, and on this question, Senator Helmick demanded the yeas and nays.
The roll being taken, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of those present and voting having voted in the affirmative, the Acting President declared the resolution (S. R. No. 48) adopted.
The Senate proceeded to the seventh order of business.

Senate Concurrent Resolution No. 53, Requesting DOH name bridge number 30-3/5-3.01, in Mingo County, "Brittany Nicole Dentro Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 54, Requesting Joint Committee on Government and Finance study scope of practice of health care professions.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 57, Requesting Joint Committee on Government and Finance study implementation of highway signage program to direct visitors to tourist-oriented businesses.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Senate Concurrent Resolution No. 58, Requesting Joint Committee on Government and Finance study advisability of establishing Economic Diversification Permanent Fund using mineral severance taxes.
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
House Concurrent Resolution No. 32, The "Ensign Melvin G. Livesay Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The following amendments to the resolution, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:
On page two, in the first Resolved clause, by striking out "13-3-0.41" and inserting in lieu thereof "13-3-0.01";
And,
By striking out the title and substituting therefor a new title, to read as follows:
House Concurrent Resolution No. 32--Requesting the Division of Highways to name the new bridge in Alderson, West Virginia on Route 3, bridge number 13-3-0.01, as the "Ensign Melvin G. Livesay Memorial Bridge".
The question being on the adoption of the resolution (H. C. R. No. 32), as amended, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
House Concurrent Resolution No. 86, The "PFC Roger Lee Byus Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
House Concurrent Resolution No. 90, The "Campbell Memorial Bridge".
On unfinished business, coming up in regular order, was reported by the Clerk.
The question being on the adoption of the resolution, the same was put and prevailed.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
The Senate proceeded to the eighth order of business.
Eng. Senate Bill No. 617, Making supplementary appropriation of federal funds to Department of Education and Arts and DHHR.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 617) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 617) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 618, Making appropriation from State Road Fund to DOT.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 618) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. 618) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Senate Bill No. 619, Making supplementary appropriation of unappropriated moneys to various accounts.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 619) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. S. B. No. 619) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2520, Relating to centers for housing young adult offenders.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2520) passed with its title.
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2520) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence in the changed effective date.
Eng. Com. Sub. for House Bill No. 2555, Establishing the offense of operating a motor vehicle while sending, reading or receiving a text message.
On third reading, coming up in regular order, with the unreported Judiciary committee amendment pending, and with the right having been granted on yesterday, Tuesday, March 8, 2011, for other amendments to be received on third reading, was reported by the Clerk.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §17B-2-3a 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 §17C-14-15, all to read as follows:
CHAPTER 17B. MOTOR VEHICLE DRIVER'S LICENSES.

ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.

§17B-2-3a. Graduated driver's license.

(a) Any person under the age of eighteen may not operate a motor vehicle unless he or she has obtained a graduated driver's license in accordance with the three-level graduated driver's license system described in the following provisions.
(b) Any person under the age of twenty-one, regardless of class or level of licensure, who operates a motor vehicle with any measurable alcohol in his or her system is subject to the provisions of section two, article five, chapter seventeen-c of this code and section two, article five-a of said chapter. Any person under the age of eighteen, regardless of class or licensure level, is subject to the mandatory school attendance and satisfactory academic progress provisions of section eleven, article eight, chapter eighteen of this code.
(c) Level one instruction permit. -- An applicant who is fifteen years or older meeting all other requirements prescribed in this code may be issued a level one instruction permit.
(1) Eligibility. -- The division shall not issue a level one instruction permit unless the applicant:
(A) Presents a completed application, as prescribed by the provisions of section six of this article, and which is accompanied by a writing, duly acknowledged, consenting to the issuance of the graduated driver's license and executed by a parent or guardian entitled to custody of the applicant;
(B) Presents a certified copy of a birth certificate issued by a state or other governmental entity responsible for vital records unexpired, or a valid passport issued by the United States government evidencing that the applicant meets the minimum age requirement and is of verifiable identity;
(C) Passes the vision and written knowledge examination and completes the driving under the influence awareness program, as prescribed in section seven of this article;
(D) Presents a driver's eligibility certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; and
(E) Pays a fee of $5, which shall permit the applicant two attempts at the written knowledge test.
(2) Terms and conditions of instruction permit. -- A level one instruction permit issued under the provisions of this section is valid until thirty days after the date the applicant attains the age of eighteen and is not renewable. However, any permit holder who allows his or her permit to expire prior to successfully passing the road skills portion of the driver examination, and who has not committed any offense which requires the suspension, revocation or cancellation of the instruction permit, may reapply for a new instruction permit under the provisions of section six of this article. The division shall immediately revoke the permit upon receipt of a second conviction for a moving violation of traffic regulations and laws of the road or violation of the terms and conditions of a level one instruction permit, which convictions have become final unless a greater penalty is required by this section or any other provision of this code. Any person whose instruction permit has been revoked is disqualified from retesting for a period of ninety days. However, after the expiration of ninety days, the person may retest if otherwise eligible. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level one instruction permit may only operate a motor vehicle under the following conditions:
(A) Under the direct supervision of a licensed driver, twenty- one years of age or older, or a driver's education or driving school instructor who is acting in an official capacity as an instructor, who is fully alert and unimpaired, and the only other occupant of the front seat. The vehicle may be operated with no more than two additional passengers, unless the passengers are family members;
(B) Between the hours of five a.m. and ten p.m.;
(C) All occupants must use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code;
(D) Without any measurable blood alcohol content, in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code; and
(E) Maintains current school enrollment and is making satisfactory academic progress or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code.
(F) A holder of a level one instruction permit who is under the age of eighteen years shall be prohibited from using a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 9-1-1 system: Provided, That the holder of a level one instruction permit who is under the age of eighteen years may not contact a 9-1-1 system by means of texting as that term is defined in subdivision three, subsection (d), section fifteen, article fourteen, chapter seventeen-c of this code: Provided, however, That texting as that term is defined in subdivision three, subsection (d), section fifteen, article fourteen, chapter seventeen-c of this code by the holder of a level one instruction permit who is under the age of eighteen years shall be a primary offense. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75.
(d) Level two intermediate driver's license. -- An applicant sixteen years of age or older, meeting all other requirements of the code, may be issued a level two intermediate driver's license.
(1) Eligibility. -- The division shall not issue a level two intermediate driver's license unless the applicant:
(A) Presents a completed application as prescribed in section six of this article;
(B) Has held the level one instruction permit conviction-free for the one hundred eighty days immediately preceding the date of application for a level two intermediate license;
(C) Has completed either a driver's education course approved by the state Department of Education or fifty hours of behind-the- wheel driving experience, including a minimum of ten hours of nighttime driving, certified by a parent or legal guardian or other responsible adult over the age of twenty-one as indicated on the form prescribed by the division: Provided, That nothing in this paragraph shall be construed to require any school or any county board of education to provide any particular number of driver's education courses or to provide driver's education training to any student;
(D) Presents a driver's eligibility certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code;
(E) Passes the road skills examination as prescribed by section seven of this article; and
(F) Pays a fee of $5.
(2) Terms and conditions of a level two intermediate driver's license. -- A level two intermediate driver's license issued under the provisions of this section shall expire thirty days after the applicant attains the age of eighteen, or until the licensee qualifies for a level three full Class E license, whichever comes first. In addition to all other provisions of this code for which a driver's license may be restricted, suspended, revoked or canceled, the holder of a level two intermediate driver's license may only operate a motor vehicle under the following conditions:
(A) Unsupervised between the hours of five a.m. and ten p.m.;
(B) Only under the direct supervision of a licensed driver, age twenty-one years or older, between the hours of ten p.m. and five a.m. except when the licensee is going to or returning from:
(i) Lawful employment;
(ii) A school-sanctioned activity;
(iii) A religious event; or
(iv) An emergency situation that requires the licensee to operate a motor vehicle to prevent bodily injury or death of another;
(C) All occupants shall use safety belts in accordance with the provisions of section forty-nine, article fifteen, chapter seventeen-c of this code;
(D) For the first six months after issuance of a level two intermediate driver's license, the licensee may not operate a motor vehicle carrying any passengers less than twenty years old, unless these passengers are family members of the licensee; for the second six months after issuance of a level two intermediate driver's license, the licensee may not operate a motor vehicle carrying more than one passenger less than twenty years old, unless these passengers are family members of the licensee;
(E) Without any measurable blood alcohol content in accordance with the provisions of subsection (h), section two, article five, chapter seventeen-c of this code;
(F) Maintains current school enrollment and is making satisfactory academic progress or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code;
(G) A holder of a level two intermediate driver's license who is under the age of eighteen years shall be prohibited from using a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 9-1-1 system: Provided, That the holder of a level one instruction permit who is under the age of eighteen years may not contact a 9-1-1 system by means of texting as that term is defined in subdivision three, subsection (d), section fifteen, article fourteen, chapter seventeen-c of this code: Provided, however, That texting as that term is defined in subdivision three, subsection (d), section fifteen, article fourteen, chapter seventeen-c of this code by the holder of a level one instruction permit who is under the age of eighteen years shall be a primary offense. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75.
(H) Upon the first conviction for a moving traffic violation or a violation of paragraph (A), (B), (C), (D) or (G), subdivision (1), subsection (d) of this section of the terms and conditions of a level two intermediate driver's license, the licensee shall enroll in an approved driver improvement program unless a greater penalty is required by this section or by any other provision of this code; and
At the discretion of the commissioner, completion of an approved driver improvement program may be used to negate the effect of a minor traffic violation as defined by the commissioner against the one year conviction-free driving criteria for early eligibility for a level three driver's license and may also negate the effect of one minor traffic violation for purposes of avoiding a second conviction under paragraph (I) of this subdivision; and
(I) Upon the second conviction for a moving traffic violation or a violation of the terms and conditions of the level two intermediate driver's license, the licensee's privilege to operate a motor vehicle shall be revoked or suspended for the applicable statutory period or until the licensee's eighteenth birthday, whichever is longer unless a greater penalty is required by this section or any other provision of this code. Any person whose driver's license has been revoked as a level two intermediate driver, upon reaching the age of eighteen years and if otherwise eligible may reapply for an instruction permit, then a driver's license in accordance with the provisions of sections five, six and seven of this article.
(e) Level three, full Class E license. -- The level three license is valid until thirty days after the date the licensee attains his or her twenty-first birthday. Unless otherwise provided in this section or any other section of this code, the holder of a level three full Class E license is subject to the same terms and conditions as the holder of a regular Class E driver's license.
A level two intermediate licensee whose privilege to operate a motor vehicle has not been suspended, revoked or otherwise canceled and who meets all other requirements of the code may be issued a level three full Class E license without further examination or road skills testing if the licensee:
(1) Has reached the age of seventeen years; and
(A) Presents a completed application as prescribed by the provisions of section six of this article;
(B) Has held the level two intermediate license conviction free for the twelve-month period immediately preceding the date of the application;
(C) Has completed any driver improvement program required under paragraph (G), subdivision (2), subsection (d) of this section; and
(D) Pays a fee of $2.50 for each year the license is valid. An additional fee of $.50 shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code;
(E) Presents a driver's eligibility certificate or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; or
(2) Reaches the age of eighteen years; and
(A) Presents a completed application as prescribed by the provisions of section six of this article; and
(B) Pays a fee of $2.50 for each year the license is valid. An additional fee of $.50 shall be collected to be deposited in the Combined Voter Registration and Driver's Licensing Fund established in section twelve, article two, chapter three of this code.
(f) A person violating the provisions of the terms and conditions of a level one or level two intermediate driver's license is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined $25; for a second offense be fined $50; and for a third or subsequent offense be fined $75.
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.

ARTICLE 14. MISCELLANEOUS RULES.
§17C-14-15. Writing, sending or reading a text message by means of an electronic communications device while driving unlawful; definitions; exceptions; penalties.

(a) Except as provided in subdivision (b) of this section, a person may not drive or operate a motor vehicle on a public street or highway while texting.
(b) The provisions of this section do not apply to any person under the age of eighteen with a level one or level two graduated driver's license who operates a motor vehicle pursuant to section three-a, article two, chapter seventeen-b of this code.
(c) As used in this section:
(1) "Driving" or "operating a motor vehicle" means operating a motor vehicle, with the motor running, including while temporarily stationary because of traffic, a traffic control device, or other momentary delays, but does not include operating a motor vehicle when the driver moved the vehicle to the side of, or off, a highway and halted in a location where the vehicle can safely remain stationary;
(2) "Electronic communication device" includes but is not limited to, a cellular telephone; personal digital assistant; pager; computer; or any other device used to input, write, send, receive or read text. For the purposes of this section, an "electronic communication device" does not include:
(A) Voice radios, mobile radios, land mobile radios, commercial mobile radios or two-way radios with the capability to transmit and receive voice transmissions utilizing a "push to talk" or "press to transmit" function; or
(B) Other voice radios used by a law-enforcement officer, an emergency services provider, an employee or agent of public safety organizations, first responders, Amateur Radio Operators(HAM) licensed by the Federal Communications Commission and school bus operators;
(B) Fleet management system or dispatching devices
(3) "Texting" means manually entering alphanumeric text into, or reading text from, an electronic communication device, and includes, but is not limited to, short message service, e-mailing, instant messaging, a command or request to access a World Wide Web page, or engaging in any other form of electronic text retrieval or entry, for present or future communication. For purposes of this section, "texting" does not include the following actions:
(A) Reading, selecting or entering a telephone number, an extension number, or voicemail retrieval codes and commands into an electronic device for the purpose of initiating or receiving a phone call or using voice commands to initiate or receive a telephone call;
(B) Inputting, selecting, or reading information on a global positioning system or navigation system; or
(C) Using a device capable of performing multiple functions, including smart phones, citizens band radios, music players, for a purpose that is not otherwise prohibited in this section.
(e) Any person who violates the provisions of subsection (a) of this section is guilty of a misdemeanor and, upon conviction thereof, shall for a first offense be fined $100; for a second offense be fined $200; and for a third or subsequent offense be fined $400. No court costs or other fees shall be assessed for a violation of subsection (a).
(f) Notwithstanding any other provision of this code to the contrary, points may not be entered on any driver's record maintained by the Division of Motor Vehicles as a result of a violation of this section.
(g) This traffic offense shall be a primary offense for citation.
On motion of Senator Browning, the following amendments to the Judiciary committee amendment to the bill (Eng. Com. Sub. for H. B. No. 2555) were next reported by the Clerk and considered simultaneously:
On page fourteen, after section fifteen by adding a new section, designated section forty-nine, to read as follows:
ARTICLE 15. EQUIPMENT.
§17C-15-49. Operation of vehicles with safety belts; exception; penalty; civil actions; educational program by West Virginia State Police.

(a) Effective September 1, one thousand nine hundred ninety-three 2011, a person may not operate a passenger vehicle on a public street or highway of this state unless the person, any passenger in the back seat under eighteen years of age and any passenger in the front seat of such the passenger vehicle is restrained by a safety belt meeting applicable federal motor vehicle safety standards. For the purposes of this section, the term "passenger vehicle" means a motor vehicle which is designed for transporting ten passengers or less, including the driver, except that such the term does not include a motorcycle, a trailer or any motor vehicle which is not required on the date of the enactment of this section under a federal motor vehicle safety standard to be equipped with a belt system. The provisions of this section shall apply to all passenger vehicles manufactured after January 1, 1967, and being 1968 models and newer.
(b) The required use of safety belts as provided herein in this section does not apply to a duly appointed or contracted rural mail carrier of the United States Postal Service who is actually making mail deliveries or to a passenger or operator with a physically disabling condition whose physical disability would prevent appropriate restraint in such the safety belt if the condition is duly certified by a physician who shall state states the nature of the disability as well as the reason such the restraint is inappropriate. The Division of Motor Vehicles shall adopt propose rules for legislative approval, in accordance with the provisions of chapter twenty-nine-a of this code, to establish a method to certify the physical disability and to require use of an alternative restraint system where feasible or to waive the requirement for the use of any restraint system.
(c) Any person who violates the provisions of this section shall be fined not more than twenty-five No court costs or other fees shall $15. Court costs or other fees may not be assessed for a violation of this section. Enforcement of this section shall be accomplished only as a secondary action when a driver of a passenger vehicle has been detained for probable cause of violating another section of this code.
(d) A violation of this section is not admissible as evidence of negligence or contributory negligence or comparative negligence in any civil action or proceeding for damages and shall is not be admissible in mitigation of damages: Provided, That the court may, upon motion of the defendant, conduct an in camera hearing to determine whether an injured party's failure to wear a safety belt was a proximate cause of the injuries complained of. Upon such a finding by the court, the court may then, in a jury trial, by special interrogatory to the jury, determine: (1) That the injured party failed to wear a safety belt; and (2) that the failure to wear the safety belt constituted a failure to mitigate damages. The trier of fact may reduce the injured party's recovery for medical damages by an amount not to exceed five percent thereof of the medical damages. In the event the plaintiff stipulates to the reduction of five percent of medical damages, the court shall make the calculations and the issue of mitigation of damages for failure to wear a safety belt shall may not be presented to the jury. In all cases, the actual computation of the dollar amount reduction shall be determined by the court.
(e) Notwithstanding any other provision of this code to the contrary, no points may be entered on any driver's record maintained by the Division of Motor Vehicles as a result of a violation of this section.
(f) Commencing the first day of July, one thousand nine hundred ninety-three The Governor's Highway Safety Program, in cooperation with the division of public safety West Virginia State Police and any other state departments or agencies and with county and municipal law-enforcement agencies, shall initiate and conduct an educational program designed to encourage compliance with safety belt usage laws. This program shall be focused on the effectiveness of safety belts, the monetary savings and the other benefits to the public from usage of safety belts and the requirements and penalties specified in this law.
(g) Nothing contained in this section shall be construed to abrogate or alter abrogates or alters the provisions of section forty-six of this article relating to the mandatory use of child passenger safety devices.;
And,
By striking out the enacting section and inserting in lieu thereof a new enacting section, to read as follows:
That §17B-2-3a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that said code be amended by adding thereto a new section, designated §17C-14-15; and that §17C-15-49 of said code be amended and reenacted, all to read as follows:.
At the request of Senator Boley, unanimous consent being granted, further consideration of the bill (Eng. Com. Sub. for H. B. No. 2555) and Senator Browning's pending amendments to the Judiciary committee amendment was deferred until the conclusion of bills on today's second reading calendar.
Eng. Com. Sub. for House Bill No. 2818, Increasing the allowable expense that may be paid for the clean-up of real property damage by a meth lab.
On third reading, coming up in regular order, was read a third time and put upon its passage.
Prior to the call of the roll, Senator Fanning moved to be excused from voting on any matter under rule number forty-three of the Rules of the Senate, which motion prevailed.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--32.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
Excused from voting: Fanning--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2818) passed.
The following amendment to the title of the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2818--A Bill to amend and reenact §14-2A-3 of the Code of West Virginia, 1931, as amended, relating to increasing the allowable expense under the Crime Victims Award Program; increasing the amount that may be paid for the clean-up of real property damage by a methamphetamine laboratory; increasing allowable reimbursement for funeral expenses; and making technical revisions.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
Eng. Com. Sub. for House Bill No. 2876, Expanding eligibility for subsidies to enrollees in the model health plan.
On third reading, coming up in regular order, was read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2876) passed with its title.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate.
Eng. House Bill No. 2971, Relating to the definition of the term "durable medical equipment".
On third reading, coming up in regular order, with the right having been granted on yesterday, Tuesday, March 8, 2011, for amendments to be received on third reading, was reported by the Clerk.
On motions of Senators Prezioso and Unger, the following amendment to the bill was reported by the Clerk and adopted:
By striking everything after the enacting clause and inserting in lieu thereof the following:
That §11-15-3a and §11-15-9i of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-3a. Rate of tax on food and food ingredients intended for human consumption; reductions of tax beginning July 1, 2008 and January 1, 2012.

(a) Rate of tax on food and food ingredients. -- Notwithstanding any provision of this article or article fifteen-a of this chapter to the contrary, the rate of tax on sales, purchases and uses of food and food ingredients intended for human consumption after the thirty-first day of December, two thousand five, shall be five percent of its sales price, as defined in section two, article fifteen-b of this chapter: Provided, That the rate of tax on sales, purchases and uses of food and food ingredients, as defined in said section, that is intended for human consumption after the thirtieth day of June, two thousand seven, shall be four percent of its sales price, as defined in said section: Provided, however, That the rate of tax on sales, purchases and uses of food and food ingredients as defined in said section that is intended for human consumption after the thirtieth day of June, two thousand eight June 30, 2008, shall be three percent of its sales price, as defined in said section two, article fifteen-b of this chapter: Provided, That the rate of tax on sales, purchases and uses of food and food ingredients as defined in said section that is intended for human consumption after December 31, 2011, shall be two percent of its sales price, as defined in said section.
(b) Calculation of tax on fractional parts of a dollar. -- The tax computation under this section shall be carried to the third decimal place and the tax 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 seller may elect to compute the tax due on a transaction on a per item basis or on an invoice basis provided the method used is consistently used during the reporting period.
(c) Federal food stamp and women, infants and children programs, other exemptions. -- Nothing in this section shall affect application of the exemption from tax provided in section nine of this article for food purchased by an eligible person using food stamps, electronic benefits transfer cards or vouchers issued by or pursuant to authorization of the United States Department of Agriculture to individuals participating in the federal food stamp program, by whatever name called, or the women, infants and children (WIC) program, or application of any other exemption from tax set forth in this article or article fifteen-a of this chapter.
§11-15-9i. Exempt drugs, durable medical equipment, mobility enhancing equipment and prosthetic devices.

(a) Notwithstanding any provision of this article, article fifteen-a or article fifteen-b of this chapter, the purchase by a health care provider of drugs, durable medical goods equipment, mobility enhancing equipment and prosthetic devices, all as defined in section two, article fifteen-b of this chapter, to be dispensed upon prescription and intended for use in the diagnosis, cure, mitigation, treatment or prevention of injury or disease are exempt from the tax imposed by this article.
(b) For purposes of this exemption, "health care provider" means any person licensed to prescribe drugs, durable medical goods equipment, mobility enhancing equipment and prosthetic devices intended for use in the diagnosis, cure, mitigation, treatment or prevention of injury or disease. For purposes of this section, the term "health care provider" includes any hospital, medical clinic, nursing home or provider of inpatient hospital services and any provider of outpatient hospital services, physician services, nursing services, ambulance services, surgical services or veterinary services: Provided, That the amendment to this subsection enacted during the 2009 regular legislative session shall be effective on or after July 1, 2009.
(c) This section shall be effective July 1, 2007. The term "durable medical goods" as used in this article means "durable medical equipment" as defined in section two, article fifteen-b of this chapter.
Having been engrossed, the bill (Eng. H. B. No. 2971) was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, a majority of all the members present and voting having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2971) passed.
On motions of Senators Prezioso and Unger, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. House Bill No. 2971--A Bill to amend and reenact §11-15- 3a and §11-15-9i of the Code of West Virginia, 1931, as amended, all relating to the consumers sales and service tax generally; reducing the consumers sales and service tax on sales, purchases and uses of food and food ingredients intended for human consumption on a date certain; and defining the term "durable medical equipment".
Senator Unger moved that the bill take effect from passage.
On this question, the yeas were: Barnes, Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--33.
The nays were: None.
Absent: Tomblin (Mr. President)--1.
So, two thirds of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Eng. H. B. No. 2971) takes effect from passage.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the ninth order of business.
Eng. House Bill No. 2345, Changing the membership of the PEIA Financial Board.
On second reading, coming up in regular order, was reported by the Clerk.
At the request of Senator Plymale, unanimous consent being granted, the bill was laid over one day, retaining its place on the calendar.
Eng. Com. Sub. for House Bill No. 2498, Relating to the practice of dentistry.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2550, Interstate Compact on Educational Opportunity for Military Children.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2663, Relating to public service commissioners presiding at hearings.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Government Organization, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §11-13-3f of the Code of West Virginia, 1931, as amended be amended and reenacted; that §11-13F-1 be amended and reenacted; that §11-24-11 be amended and reenacted; that §24-1-3 and §24-1-4 be amended and reenacted; that §24-2A-2 be amended and reenacted; that §24-3-2 be amended and reenacted; and that said code be amended by adding thereto a new section, designated §24-2A-5, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 13. BUSINESS AND OCCUPATION TAX.
§11-13-3f. Tax credit for reducing electric and natural gas utility rates for low-income residential customers; regulations.

(a) There shall be allowed as a credit against the tax imposed by this article, the cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at reduced rates to qualified low- income residential customers which has not been reimbursed by any other means.
(b) The tax commissioner may prescribe such regulations as may be necessary to carry out the purposes of this section, of article thirteen-f of this chapter and of section eleven, article twenty- four of this chapter.
ARTICLE 13F. BUSINESS AND OCCUPATION TAX CREDIT FOR REDUCING ELECTRIC, NATURAL GAS AND WATER UTILITY RATES FOR LOW-INCOME RESIDENTIAL CUSTOMERS.

§11-13F-1. Legislative purpose.

In order to reimburse public utilities for the revenue deficiencies which that they incur in
providing special reduced electric and natural gas utility rates to low-income residential customers in accordance with the provisions of article two-a of chapter twenty-four, there is hereby provided a business and occupation tax credit for reducing electric and natural gas, and water utility rates for low-income residential customers.
ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-11. Credit for reducing electric, natural gas and water utility rates for low-income residential customers.

(a) General. -- A credit shall be allowed against the primary tax liability of an eligible taxpayer under this article for the cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates to qualified low-income residential customers which has not been reimbursed by any other means.
(b) Definitions. -- For purposes of this section, the term:
(1) "Eligible taxpayer" means a utility which has provided electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, to qualified low-income residential customers at special reduced rates.
(2) "Cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates" means the amount certified by the public service commission under the provisions of section three, article two-a, chapter twenty-four of this code, as the revenue deficiency incurred by a public utility in providing special reduced rates for electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, as required by section one, article two-a, chapter twenty-four of this code.
(3) "Special reduced rates" means the rates ordered by the public service commission under the authority of sections one, and five article two-a, chapter twenty-four of this code.
(4) "Qualified low-income residential customers" means those utility customers eligible to receive electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, under special reduced rates.
(c) Amount of credit. -- The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing electric or natural gas service, or both, at special reduced rates to qualified residential customers, less any reimbursement of said cost which the taxpayer has received through any other means.
(d) When credit may be taken. -- An eligible taxpayer may claim a credit allowed under this section on its annual return for the taxable year in which it receives certification of the amount of its revenue deficiency from the public service commission.
Notwithstanding the provisions of section sixteen of this article to the contrary, no credit may be claimed on any declaration of estimated tax filed for such taxable year prior to the first day of July of such taxable year. Such credit may be claimed on a declaration or amended declaration filed on or after that date but only if the amount certified will not be recovered by application of the business and occupation tax credit allowed by section three- f, article thirteen of this chapter. In such event, only that amount not recovered by that credit may be considered or taken as a credit when estimating the tax due under this article. In no event may the eligible taxpayer recover more than one hundred percent of its revenue deficiency as certified by the public service commission.
(e) Application of credit. -- The credit allowable by this section for a taxable year is not subject to the fifty percent limitation specified in section nine of this article.
Notwithstanding the provisions of section four, article thirteen-f of this chapter, any unused credit may be carried over and applied against business and occupation taxes in the manner specified in section five, article thirteen-f of this chapter.
(f) Copy of certification order. -- A copy of a certification order from the public service commission shall be attached to any annual return under this article on which a credit allowed by this section is taken.

ARTICLE 24. CORPORATION NET INCOME TAX.
§11-24-11. Credit for reducing electric natural gas and water utility rates for low-income residential customers.

(a) General. -- A credit shall be allowed against the primary tax liability of an eligible taxpayer under this article for the cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates to qualified low-income residential customers which has not been reimbursed by any other means.
(b) Definitions. -- For purposes of this section, the term:
(1) "Eligible taxpayer" means a utility which has provided electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, to qualified low-income residential customers at special reduced rates.
(2) "Cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates" means the amount certified by the public service commission under the provisions of section three, article two-a, chapter twenty-four of this code, as the revenue deficiency incurred by a public utility in providing special reduced rates for electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, as required by section one, article two-a, chapter twenty-four of this code.
(3) "Special reduced rates" means the rates ordered by the public service commission under the authority of section one, article two-a, chapter twenty-four of this code.
(4) "Qualified low-income residential customers" means those utility customers eligible to receive electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, under special reduced rates.
(c) Amount of credit. -- The amount of the credit available to any eligible taxpayer shall be equal to its cost of providing electric or natural gas or water utility service, or both any combination of electric, natural gas or water utility services, at special reduced rates to qualified residential customers, less any reimbursement of said cost which the taxpayer has received through any other means.
(d) When credit may be taken. -- An eligible taxpayer may claim a credit allowed under this section on its annual return for the taxable year in which it receives certification of the amount of its revenue deficiency from the public service commission. Notwithstanding the provisions of section sixteen of this article to the contrary, no credit may be claimed on any declaration of estimated tax filed for such taxable year prior to the first day of July of such taxable year. Such credit may be claimed on a declaration or amended declaration filed on or after that date but only if the amount certified will not be recovered by application of the business and occupation tax credit allowed by section three- f, article thirteen of this chapter. In such event, only that amount not recovered by that credit may be considered or taken as a credit when estimating the tax due under this article. In no event may the eligible taxpayer recover more than one hundred percent of its revenue deficiency as certified by the public service commission.
(e) Application of credit. -- The credit allowable by this section for a taxable year is not subject to the fifty percent limitation specified in section nine of this article. Notwithstanding the provisions of section four, article thirteen-f of this chapter, any unused credit may be carried over and applied against business and occupation taxes in the manner specified in section five, article thirteen-f of this chapter.
(f) Copy of certification order. -- A copy of a certification order from the public service commission shall be attached to any annual return under this article on which a credit allowed by this section is taken.
CHAPTER 24. PUBLIC SERVICE COMMISSION.
ARTICLE 1. GENERAL PROVISIONS.
§24-1-3. Commission continued; membership; chairman; compensation; quorum.

(a) The Public Service Commission of West Virginia is continued and directed as provided by this chapter, chapter twenty- four-a, chapter twenty-four-b and chapter twenty-four-d of this code. After having conducted a performance audit through its joint committee on government operations, pursuant to section nine, article ten, chapter four of this code, the Legislature hereby finds and declares that the Public Service Commission should be continued and reestablished. Accordingly, notwithstanding the provisions of section five, article ten, chapter four of this code, the Public Service Commission shall continue to exist until July 1, two thousand three. The Public Service Commission may sue and be sued by that name.
(b) The Public Service Commission shall consist of three members who shall be appointed by the Governor, with the advice and consent of the Senate. The commissioners shall be citizens and residents of this state and at least one of them shall be duly licensed to practice law in West Virginia, with not less than ten years' actual work experience in the legal profession as a member of a State Bar.
(c) No more than two of the commissioners shall be members of the same political party.
(d) Each commissioner shall, before entering upon the duties of his or her office, take and subscribe to the oath provided by section five, article IV of the Constitution of this state. The oath shall be filed in the office of the Secretary of State.
(e) The Governor shall designate one of the commissioners to serve as chairman at the Governor's will and pleasure. The chairman shall be the chief administrative officer of the commission. The Governor may remove any commissioner only for incompetency, neglect of duty, gross immorality, malfeasance in office or violation of subsection (c) subsections (g) and (h) of this section.
(b) (f) The unexpired terms of members of the Public Service Commission at the time this subsection becomes effective are continued. Upon expiration of the terms, appointments are for terms of six years, except that an appointment to fill a vacancy is for the unexpired term only. The commissioners whose terms are terminated by the provisions of this subsection are eligible for reappointment.
(c) (g) No person while in the employ of, or holding any official relation to, any public utility subject to the provisions of this chapter or holding any stocks or bonds of a public utility subject to the provisions of this chapter or who is pecuniarily interested in a public utility subject to the provisions of this chapter may serve as a member of the commission or as an employee of the commission.
(h) Nor may any commissioner be a candidate for or hold public office or be a member of any political committee while acting as a commissioner; nor may any commissioner or employee of the commission receive any pass, free transportation or other thing of value, either directly or indirectly, from any public utility or motor carrier subject to the provisions of this chapter. In case any of the commissioners becomes a candidate for any public office or a member of any political committee, the Governor shall remove him or her from office and shall appoint a new commissioner to fill the vacancy created.
(d) (i) The salaries of members of the Public Service Commission and the manner in which they are paid established by the prior enactment of this section are continued. Effective July 1, 2001, The annual salary of each commissioner provided in section two-a, article seven, chapter six of this code shall be paid in monthly installments from the special funds in the percentages that follow:
(1) From the Public Service Commission Fund collected under the provisions of section six, article three of this chapter, eighty percent;
(2) From the Public Service Commission Motor Carrier Fund collected under the provisions of section six, article six, chapter twenty-four-a of this code, seventeen percent; and
(3) From the Public Service Commission Gas Pipeline Safety Fund collected under the provisions of section three, article five, chapter twenty-four-b of this code, three percent.
(j) In addition to the salary provided for all commissioners in section two-a, article seven, chapter six of this code, the chairman of the commission shall receive $5,000 per annum to be paid in monthly installments from the Public Service Commission Fund collected under the provisions of section six, article three of this chapter.
(k) On a matter requiring a public hearing on a public utility by the commissioners of the Public Service Commission, at least one commissioner must be present before that hearing may be conducted.
§24-1-4. Appointment, duties and compensation of secretary and other employees; hearings generally; public comment; outside employment by certain employees prohibited.

The commission shall appoint a secretary and such other employees as may be necessary to carry out the provisions of this chapter and shall fix their respective salaries or compensations. It shall be the duty of the secretary to keep a full and true record of all proceedings, acts, orders and judgments of the commission, to issue all necessary process, returns and notices, to keep all books, maps, documents and papers ordered filed by the commission, and all orders made by the commission or approved and confirmed by it and ordered to be filed; and he shall be responsible to the commission for the safe custody and preservation of all such documents in his office. He may administer oaths in all parts of the state, so far as the exercise of such power is properly incidental to the performance of his duty or that of the commission.
The commission may designate such of its employees as it deems necessary to hold hearings, held or required by this chapter, and to take evidence at such hearings, which employees are hereby empowered to subpoena witnesses, administer oaths, take testimony, require the production of documentary evidence and exercise such other powers and perform such other duties as may be delegated to them and required by the commission, in any proceeding or examination instituted or conducted by the commission under this chapter, at any designated place of hearing within the state. The Commission shall provide a web site to accept comments from West Virginia residents regarding any matter under the auspices of the Commission or before the commission. The Commission staff shall report to the full commission all comments and suggestions received through the web site.
Any commissioner or person employed by the commission other than on a part-time basis shall devote full time to the performance of his duties as such commissioner or employee during the regular working hours as set by the commission.
ARTICLE 2A. REDUCED RATES FOR LOW-INCOME RESIDENTIAL CUSTOMERS OF ELECTRICITY AND GAS.

§24-2A-2. Recovery of revenue deficiencies.
In order to provide the special reduced rates mandated by sections one and five of this article and still maintain the integrity of the earnings of the utilities offering service under these rates, the commission shall each year, beginning in the year one thousand nine hundred eighty-four, determine, upon application by any affected utility, that utility's revenue deficiency resulting from the special reduced rates. Upon determining any utility's revenue deficiency, the commission shall issue an order certifying the amount of that deficiency. Certified revenue deficiencies shall be recovered by the affected utilities as follows:
(1) A utility's certified revenue deficiency, if any, resulting from the special reduced rates shall be allowed as a tax credit against the liability of the utility pursuant to the provisions of article thirteen-f of chapter eleven of this code.
(2) After allowance of a tax credit pursuant to the provisions of article thirteen-f of chapter eleven, a utility's remaining revenue deficiency, if any, resulting from the special reduced rates, shall be allowed as a tax credit against the liability of the utility pursuant to the provisions of section eleven, article twenty-four of chapter eleven.
§24-2A-5. Special rates for certain water utility customers .
(a) The commission may authorize a privately owned water utility to voluntarily implement a rate design featuring reduced rates and charges for service for residential utility customers, sixty years of age or older, receiving:
(1) Social Security Supplemental Security Income (SSI);
(2) Temporary Assistance for Needy Families (TANF);
(3) Temporary Assistance for Needy Families-Unemployed Parent Program (TANF-UP);or
(4) Assistance from the Supplemental Nutrition Assistance Program (SNAP).
(b) The special reduced rate offered by each water utility to its eligible customers shall be a percentage less, which shall be approved by the commission, than the rate that would be applicable to such customers if they were not receiving any of the four forms of assistance that confer eligibility for the special reduced rates approved by the commission: Provided, That such rate reduction shall not exceed twenty percent of the rate that would be otherwise applicable.
(c) Before any individual may qualify to receive the special reduced rates, the following requirements must be met:
(1) The special reduced rates may apply only to current customers or to those persons who subsequently become customers in their own right. If an SSI, TANF-UP or SNAP recipient is living in a household that is served under the name of a person who is not an SSI, TANF, TANF-UP or SNAP recipient, that service may not be changed or have been changed subsequent to July 1 , 2011, to the name of the SSI, TANF, TANF-UP or SNAP recipient in order to qualify for service under the special reduced rates.
(2) The burden of proving eligibility for the special reduced rates shall be on the customer requesting such rates. The Department of Health and Human Resources shall establish by rules procedures:
(A) To inform persons receiving any of the four forms of assistance that confer eligibility for the special reduced rates about the availability of the special reduced rates;
(B) To assist applicants for the special reduced rates in proving their eligibility therefor; and
(C) To assist water utilities offering the special reduced rates in determining on a continuing basis the eligibility therefor of persons receiving or applying for such rates.
The commission shall establish rules and procedures for the application for and provision of service under the special reduced rates and for the determination and certification of revenue deficiencies resulting from the special reduced rates.
(3) In order to provide each eligible residential utility customer the special reduced rates, each utility providing the special reduced rates shall credit against amounts otherwise owed by each customer an amount equal to the difference between the total amount that each customer was actually billed during the previous month and the total amount that each customer would have been entitled to be billed under the special reduced rates. Each credit shall be fully reflected on the first bill issued to each customer after approval of each customer's application for the special reduced rates, except in cases where the interval between the approval and the issuance of the next bill is so short that it is administratively impracticable to do so, in which case, such credits shall be fully reflected on the second bill issued to each customer after approval of that customer's application. If the interval between the approval and the issuance of the next bill is fifteen days or more, it may not be deemed administratively impracticable to reflect the credit on the customer's first bill.
ARTICLE 3. DUTIES AND PRIVILEGES OF PUBLIC UTILITIES SUBJECT TO REGULATIONS OF COMMISSION.

§24-3-2. Discrimination prohibited.
No public utility subject to the provisions of this chapter shall, directly or indirectly, by any special rate, rebate, drawback or other device or method, charge, demand, collect or receive from any person, firm or corporation, a greater or less compensation, for any service rendered or to be rendered, than it charges, demands, collects, or receives from any other person, firm or corporation for doing a like and contemporaneous service under the same or substantially similar circumstances and conditions.
It shall be unlawful for any public utility subject to the provisions of this chapter to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation or locality, or any particular character of traffic or service, in any respect whatsoever, or to subject any particular person, firm, corporation, company or locality, or any particular character of traffic or service, to any undue or unreasonable prejudice or disadvantage in any respect whatsoever.
Nothing in this section shall be construed to prevent the

commission from:
(a) Authorizing or requiring any rate design consistent with the purposes and policies set forth in article two-a of this chapter; or
(b) Authorizing a private water utility to voluntarily implement a rate design featuring reduced rates and charges for service to qualifying low-income residential customers.
At the request of Senator Chafin, and by unanimous consent, the bill (Eng. Com. Sub. for H. B. No. 2663), as amended, was advanced to third reading with the right for further amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2745, Providing that certain information provided by insurance companies to the Insurance Commissioner is confidential.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §33-4-14 of the Code of West Virginia, 1931, as amended, be amended and reenacted; and that said code be amended by adding thereto a new article, designated §33-4A-1, §33-4A-2, §33-4A-3, §33-4A-4, §33-4A-5, §33-4A-6, §33-4A-7 and §33-4A-8, all to read as follows:
ARTICLE 4. GENERAL PROVISIONS.
§33-4-14. Financial statement filings; annual and quarterly statements; required format; foreign insurers; agents of the commissioner.

(a) Each licensed insurer shall annually on or before March 1, unless the time is extended by the commissioner for good cause shown, file with the commissioner a true statement of its financial condition, transactions and affairs as of the preceding December 31. Such statement shall be on the appropriate National Association of Insurance Commissioners annual statement blank; shall be prepared in accordance with the National Association of Insurance Commissioners annual statement instructions handbook; and shall follow the accounting practices and procedures prescribed by the National Association of Insurance Commissioners accounting practices and procedures manual as amended: Provided, That each licensed insurer shall also file true statements of financial condition on a more frequent basis if the commissioner so orders. The commissioner shall establish the frequency, due date and form acceptable to him or her for such filings: Provided, however, That the statement of an alien insurer shall relate only to its transactions and affairs in the United States unless the commissioner requires otherwise.
(b) Each domestic insurer shall also file with the commissioner a true quarterly statement of its financial condition, transactions and affairs as of March 31, June 30, and September 30, of each year. Quarterly statements shall be due forty-five days after the end of each quarter. All quarterly statements shall be submitted on the appropriate National Association of Insurance Commissioners quarterly statement blank; shall be prepared in accordance with the National Association of Insurance Commissioners quarterly statement instructions; and shall follow the accounting practices and procedures prescribed by the National Association of Insurance Commissioners accounting practices and procedures manual, as amended. The commissioner may subject any licensed insurer to the requirements of this section whenever the commissioner deems it necessary.
(c) The commissioner may require that all or part of the information contained in the annual statement blank and the quarterly statement blanks be submitted to the department in a computer-readable form compatible with the electronic data processing system of the department.
(d) Each domestic, foreign and alien insurer, organization or corporation who that is subject to the requirements of this section shall annually, on or before March 1 each year, and forty-five days after the end of the first, second and third calendar quarters, file with the National Association of Insurance Commissioners a copy of its annual statement convention blank and the quarterly statement blanks, along with such additional filings as prescribed by the commissioner and shall pay the fee established by the National Association of Insurance Commissioners for filing, review or processing of the information. The information filed with the National Association of Insurance Commissioners shall be in the same format and scope as that required by the commissioner and shall include the signed jurat page and any other required information. Any amendments and addenda to the annual statement filing and quarterly statement filings subsequently filed with the commissioner shall also be filed with the National Association of Insurance Commissioners.
(e) Foreign insurers that are domiciled in a state which has a law substantially similar to subsection (a) of this section shall be deemed in compliance with this section.
(f) In the absence of actual malice, members of the National Association of Insurance Commissioners, their duly authorized committees, subcommittees and task forces, their delegates, National Association of Insurance Commissioners employees and all others charged with the responsibility of collecting, reviewing, analyzing and disseminating the information developed from the filing of the annual statement convention blanks and the quarterly statement blanks shall be acting as agents of the commissioner under the authority of this article and shall not be subject to civil liability for libel, slander or any other cause of action by virtue of their collection, review, and analysis or dissemination of the data and information collected from the filings required hereunder.
(g)(1) All financial analysis ratios and examination synopses concerning insurance companies that are submitted to the department commissioner by the National Association of Insurance Commissioners insurance regulatory information system, are confidential and may not be disclosed by the department and all actuarial reports, work papers and actuarial summaries submitted by insurers in conjunction with their annual financial statements is confidential by law and privileged. These documents are not subject to disclosure pursuant to chapter twenty-nine-b of this code, are not subject to subpoena and are not subject to discovery or admissible as evidence in any private civil action: Provided, That nothing in this section may be construed to limit the ability of parties in a civil action to discover such information from insurers under the Rules of Civil Procedure.
(2) This subsection shall not be construed to limit the commissioner's authority to release the documents to the Actuarial Board for Counseling and Discipline (ABCD), so long as the material is required for the purpose of professional disciplinary proceedings and the ABCD establishes procedures satisfactory to the commissioner for preserving the confidentiality of the documents; nor shall this section be construed to limit the commissioner's authority to use the documents, materials or other information in furtherance of any regulatory or legal action brought as part of the commissioner's official duties.
(3) Neither the commissioner nor any person who received documents, materials or other information while acting under the authority of the commissioner shall be permitted or required to testify in any private civil action concerning any confidential documents, materials or information subject to subdivision (1) of this subsection.
(4) In order to assist in the performance of the commissioner's duties, the commissioner:
(A) May share documents, materials or other information, including the confidential and privileged documents, materials or information subject to subdivision (1) of this subsection with other state, federal and international regulatory agencies, and with state, federal and international law enforcement authorities, provided that the recipient agrees to maintain the confidentiality and privileged status of the document, material or other information and has the legal authority to maintain confidentiality; and,
(B) May receive documents, materials or information, including otherwise confidential and privileged documents, materials or information, from the National Association of Insurance Commissioners and its affiliates and subsidiaries, and from regulatory and law enforcement officials of other foreign or domestic jurisdictions, and shall maintain as confidential or privileged any document, material or information received with notice or the understanding that it is confidential or privileged under the laws of the jurisdiction that is the source of the document, material or information.
(h) The commissioner may suspend, revoke or refuse to renew the certificate of authority of any insurer failing to file its annual statement or the quarterly statement blanks, or any other statement of financial condition required by this section, when due or within any extension of time which the commissioner, for good cause, may have granted.
(i) Any variance to the requirements of this section shall require the express authorization of the commissioner.
(j) The commissioner shall promulgate legislative propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to effectuate the requirements of this article.
ARTICLE 4A. ALL-PAYER CLAIMS DATABASE.
§33-4A-1. Definitions.
(a) "All-payer claims database" or "APCD" means the program authorized by this article that collects, retains, uses and discloses information concerning the claims and administrative expenses of health care payers.
(b) "Chair" means the chairperson of the West Virginia Health Care Authority.
(c) "Commissioner" means the West Virginia Insurance Commissioner.
(d) "Data" means the data elements from enrollment and eligibility files, specified types of claims, and reference files for date elements not maintained in formats consistent with national coding standards.
(e) "Health care payer" means any entity that pays or administers the payment of health insurance claims or medical claims under workers' compensation insurance to providers in this state, including workers' compensation insurers; accident and sickness insurers; nonprofit hospital service corporations, medical service corporations and dental service organizations; nonprofit health service corporations; prepaid limited health service organizations; health maintenance organizations; and government payers, including but not limited to Medicaid, Medicare and the public employees insurance agency; the term also includes any third-party administrator including any pharmacy benefit manager, that administers a fully-funded or self-funded plan:
A "health insurance claim" does not include:
(1) Any claim paid under an individual or group policy providing coverage only for accident, or disability income insurance or any combination thereof; coverage issued as a supplement to liability insurance; liability insurance, including general liability insurance and automobile liability; credit-only insurance; coverage for on-site medical clinics; other similar insurance coverage, which may be specified by rule, under which benefits for medical care are secondary or incidental to other insurance benefits; or
(2) Any of the following if provided under a separate policy, certificate, or contract of insurance: Limited scope dental or vision benefits: benefits for long-term care, nursing home care, home health care, community-based care, or any combination thereof; coverage for only a specified disease or illness; or hospital indemnity or other fixed indemnity insurance.
"Health insurance claims" shall only include information from Medicare supplemental policies if the same information is obtained with respect to Medicare.
(f) "Personal identifiers" means information relating to an individual member or insured that identifies, or can be used to identify, locate or contact a particular individual member or insured, including but not limited to the individual's name, street address, social security number, e-mail address and telephone number.
(g) "Secretary" means the Secretary of the West Virginia Department of Health and Human Services.
(h) "Third-party administrator" has the same meaning ascribed to it in section two, article forty-six of this chapter.
§33-4A-2. Establishment and development of an all-payer claims database.

(a) The secretary, commissioner and chair, collectively referred to herein as the "MOU parties", shall enter into a memorandum of understanding to develop an all-payer claims database program.
(b) The memorandum of understanding shall, at a minimum:
(1) Provide that the commissioner will have primary responsibility for the collection of the data in order to facilitate the efficient administration of state oversight, the secretary will have primary responsibility for the retention of data supplied to the state under its health care oversight function, and the chair will have primary responsibility for the dissemination of the data;
(2) Delineate the MOU parties' roles, describe the process to develop legislative rules required by this article, establish communication processes and a coordination plan, and address vendor relationship management;
(3) Provide for the development of a plan for the financial stability of the APCD, including provision for funding by the MOU parties' agencies; and
(4) Provide for the use of the hospital discharge data collected by the West Virginia Health Care Authority as a tool in the validation of APCD reports.
§33-4A-3. Powers of the commissioner, secretary and chair; exemption from purchasing rules.

(a) The MOU parties may:
(1) Accept gifts, bequests, grants or other funds dedicated to the furtherance of the goals of the APCD;
(2) Select a vendor to handle data collection and processing and such other tasks as deemed appropriate;
(3) Enter into agreements with other states to perform joint administrative operations, share information and assist in the development of multistate efforts to further the goals of this article: Provided, That any such agreements must include adequate protections with respect to the confidentiality of the information to be shared and comply with all state and federal laws and regulations;
(4) Enter into memoranda of understanding with other governmental agencies to carry out any of its functions, including contracts with other states to perform joint administrative functions;
(5) Attempt to ensure that the requirements with respect to the reporting of data be standardized so as to minimize the expense to parties subject to similar requirements in other jurisdictions;
(6) Enter into voluntary agreements to obtain data from payers not subject to mandatory reporting under this article; and
(7) Exempt a payer for class of payers from the requirements of this article for cause.
(b) Contracts for professional services for the development and operation of the APCD are not subject to the provisions of article three, chapter five-a of this code relating to the Purchasing Division of the Department of Administration. The award of such contracts shall be subject to a competitive process established by the MOU parties.
(c) The MOU parties shall make an annual report to the Governor, which shall also be filed with the Joint Committee on Government and Finance, summarizing the activities of the APCD in the preceding calendar year. §33-4A-4. Data subject to this article.
(a) All health care payers shall submit data to the commissioner or an entity designated by the commissioner at such times and in a form specified in rule. Any health care payer that the commissioner determines paid or administered the payment of health insurance claims in this state for policies on fewer than 500 covered lives in the previous calendar year is exempt from the requirements of this article.
(b) Data submitted in accordance with this article shall be considered confidential by law and privileged, are exempt from disclosure pursuant to chapter twenty-nine-b of this code, are not open to public inspection, are not subject to subpoena, are not subject to discovery or admissible in evidence in any criminal, private civil or administrative action, are not subject to production pursuant to court order, and shall only be used and disclosed pursuant to law and legislative rules promulgated pursuant to this article.
(c)(1) Data submitted to and retained by the APCD shall be available as a resource for the MOU parties to continuously review health care utilization, expenditures and performance in West Virginia and to enhance the ability of consumers to make informed and cost-effective health care decisions.
(2) Data submitted to and retained by the APCD may, in accordance with this article and the legislative rules promulgated pursuant to this article, also be available as a resource for insurers, researchers, employers, providers, purchasers of health care, consumers, and state agencies.
(d) Notwithstanding any other provision of law to the contrary, the APCD shall not disclose any data that contain personal identifiers. The MOU parties, in accordance with procedures and standards set forth in legislative rule, may approve access to other data elements not prohibited from disclosure by the APCD, as well as synthetic or created unique identifiers, for use by researchers, including government agencies, with established protocols for safeguarding confidential or privileged information. The MOU parties' use of the data shall not constitute a disclosure. §33-4A-5. User fees; waiver.
Reasonable user fees may be set in the manner established in legislative rule, for the right to access and use the data available from the APCD. The chair may reduce or waive the fee if he or she determines that the user is unable to pay the scheduled fees and that the user has a viable plan to use the data or information in research of general value to the public health.
§33-4A-6. Enforcement; injunctive relief.
In the event of any violation of this article or any rule adopted thereunder, the commissioner, secretary or chair may seek to enjoin a further violation in the circuit court of Kanawha County. Injunctive relief ordered pursuant to this section may be in addition to any other remedies and enforcement actions available to the commissioner under this chapter.
§33-4A-7. Special revenue account created.
(a) There is hereby created a special revenue account in the State Treasury, designated the West Virginia All-Payer Claims Database Fund, which shall be an interest-bearing account and may be invested in the manner permitted by article six, chapter twelve of this code, with the interest income a proper credit to the fund and which shall not revert to the general revenue, unless otherwise designated in law. The fund shall be overseen by the commissioner, secretary and chair, shall be administered by the commissioner, and shall be used to pay all proper costs incurred in implementing the provisions of this article.
(b) The following funds shall be paid into this account:
(1) Penalties imposed on health care payers pursuant to this article and rules promulgated hereunder;
(2) Funds received from the federal government;
(3) Appropriations from the Legislature; and
(4) All other payments, gifts, grants, bequests or income from any source.
§33-4A-8. Rule-making authority.
To effectuate the provisions of this article, the MOU parties may propose joint rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code as necessary to implement this article. No actions to collect data or assess fees pursuant to this article may be undertaken until rules promulgated hereunder are made effective. Such rules may include, but are not limited to, the following:
(a) Procedures for the collection, retention, use and disclosure of data from the APCD, including procedures and safeguards to protect the privacy, integrity, confidentiality and availability of any data;
(b) Penalties against health care payers for violation of rules governing the submission of data, including a schedule of fines for failure to file data or to pay assessments;
(c) Fees payable by users of the data and the process for a waiver or reduction of user fees. Any such fees shall be established at a level that, when considered together with other available funding sources, is deemed necessary to sustain the operation of the APCD;
(d) A proposed time frame for the creation of the database;
(e) Criteria for determining whether data collected, beyond the listed personal identifiers, is confidential clinical, confidential financial data or privileged medical information, and procedures to give affected providers and health care payers notice and opportunity to comment in response to requests for information that may be considered confidential or privileged;
(f) Penalties, including fines and other administrative sanctions, that may be imposed by the commissioner for a health care payer's failure to comply with requirements of this article and rules adopted hereunder; and
(g) Establishment of advisory boards to provide advice to the MOU parties with respect to the various functions of the APCD.
The bill (Eng. Com. Sub. for H. B. No. 2745), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2752, Increasing the maximum age for persons applying for appointment for the police force in a Class I or Class II city from thirty-five to forty years.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
"
ARTICLE 14. LAW AND ORDER; POLICE FORCE OR DEPARTMENTS; POWERS, AUTHORITY AND DUTIES OF LAW-ENFORCEMENT OFFICIALS AND POLICEMEN; POLICE MATRONS; SPECIAL SCHOOL ZONE AND PARKING LOT OR PARKING BUILDING POLICE OFFICERS; CIVIL SERVICE FOR CERTAIN POLICE DEPARTMENTS.

§8-14-12. Form of application; age and residency requirements; exceptions.

(a) The policemen's civil service commission in each Class I and Class II city shall require individuals a person applying for admission to any competitive examination provided for under the civil service provisions of this article or under the commission's rules and regulations of said commission to file in its office, within a reasonable time prior to the proposed examination, a formal application in which the applicant shall state under oath or affirmation:
(1) His The applicant's full name, residence and post-office address;
(2) His The applicant's United States citizenship, age and the place and date of his the applicant's birth;
(3) His The applicant's state of health and his the applicant's physical capacity for the public service;
(4) His The applicant's business and employments and residences for at least three previous years; and
(5) Such Other information as may reasonably be required, touching upon the applicant's qualifications and fitness for the public service.
(b) Blank forms for such Applications shall be furnished by the commission, without charge. to all individuals requesting the same. The commission may require, in connection with such the application, such the certificates of citizens, physicians and others, having pertinent knowledge concerning the applicant, as the good of the service may require.
(c) No application Notwithstanding the provisions of article five, chapter eleven of this code, a person may not submit an application for original appointment shall be received if the individual applying person is less than eighteen years of age or more than thirty-five forty years of age at the date of his the individual's application: Provided, That in the event any
(d) Notwithstanding the requirements established in this section,
if an applicant formerly served upon the paid police department of the city to which he or she makes application, for a period of more than his or her probationary period, and resigned from the department at a time when there were no charges of misconduct or other misfeasance pending against such the applicant, within a period of two years next preceding the date of his or her application, and at the time of his or her application resides within the corporate limits of the city in which the paid police department to which he the individual seeks appointment by reinstatement is located, then such the individual shall be eligible for appointment by reinstatement in the discretion of the policemen's civil service commission. even though such The applicant shall be may be over the age of thirty-five forty years. and such The applicant, providing his or her former term of service so justifies, may be appointed by reinstatement to the paid police department without a competitive examination, but such the applicant shall undergo a medical examination. and if such individual shall be so appointed by reinstatement to the paid police department, he The applicant shall be the lowest in rank in the department next above the probationers of the department.
Any applicant for original appointment must have been a resident for one year, during some period of time prior to the date of his application, of the city in which he seeks to become a member of the paid police department: Provided, That if the commission deems it necessary it may consider for original appointment or for reinstatement under the preceding proviso of this section, applicants who are not residents of the city but who have been residents of the county in which the city or any portion of the territory thereof is located for a period of at least one year.

The bill (Eng. Com. Sub. for H. B. No. 2752), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2757, Providing for evaluation of professional personnel in the public schools.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
By striking out everything after the enacting section and inserting in lieu thereof the following:
ARTICLE 2. SCHOOL PERSONNEL.
§18A-2-2. Employment of teachers; contracts; continuing contract status; how terminated; dismissal for lack of need; released time; failure of teacher to perform contract or violation thereof; written notice bonus for teachers and professional personnel.

(a) Before entering upon their duties, all teachers shall execute a contract with their county boards, which shall state the salary to be paid and shall be in the form prescribed by the state superintendent. Each contract shall be signed by the teacher and by the president and secretary of the county board and shall be filed, together with the certificate of the teacher, by the secretary of the office of the county board: Provided, That when necessary to facilitate the employment of employable professional personnel and prospective and recent graduates of teacher education programs who have not yet attained certification, the contract may be signed upon the condition that the certificate is issued to the employee prior to the beginning of the employment term in which the employee enters upon his or her duties.
(b) Each teacher's contract, under this section, shall be designated as a probationary or continuing contract. A probationary teacher's contract shall be for a term of not less than one nor more than three years, one of which shall be for completion of a beginning teacher internship pursuant to the provisions of section two-b, article three of this chapter, if applicable. If, after three years of such employment, the teacher who holds a professional certificate, based on at least a bachelor's degree, has met the qualifications for a bachelor's degree and the county board enter into a new contract of employment, it shall be a continuing contract, subject to the following:
(1) Any teacher holding a valid certificate with less than a bachelor's degree who is employed in a county beyond the three-year probationary period shall upon qualifying for the professional certificate based upon a bachelor's degree, if reemployed, be granted continuing contract status; and
(2) A teacher holding continuing contract status with one county shall be granted continuing contract status with any other county upon completion of one year of acceptable employment if the employment is during the next succeeding school year or immediately following an approved leave of absence extending no more than one year.
(c) The continuing contract of any teacher shall remain in full force and effect except as modified by mutual consent of the school board and the teacher, unless and until terminated, subject to the following:
(1) A continuing contract may not be terminated except:
(A) By a majority vote of the full membership of the county board on or before February 1 May 1 of the then current year, after written notice, served upon the teacher, return receipt requested, stating cause or causes and an opportunity to be heard at a meeting of the board prior to the board's action on the termination issue; or
(B) By written resignation of the teacher on or before February 1 May 1 to initiate termination of a continuing contract;
(2) The termination shall take effect at the close of the school year in which the contract is terminated;
(3) The contract may be terminated at any time by mutual consent of the school board and the teacher;
(4) This section does not affect the powers of the school board to suspend or dismiss a principal or teacher pursuant to section eight of this article;
(5) A continuing contract for any teacher holding a certificate valid for more than one year and in full force and effect during the school year 1984-1985 shall remain in full force and effect;
(6) A continuing contract does not operate to prevent a teacher's dismissal based upon the lack of need for the teacher's services pursuant to the provisions of law relating to the allocation to teachers and pupil-teacher ratios. The written notification of teachers being considered for dismissal for lack of need shall be limited to only those teachers whose consideration for dismissal is based upon known or expected circumstances which will require dismissal for lack of need. An employee who was not provided notice and an opportunity for a hearing pursuant to this subsection may not be included on the list. In case of dismissal for lack of need, a dismissed teacher shall be placed upon a preferred list in the order of their length of service with that board. No teacher may be employed by the board until each qualified teacher upon the preferred list, in order, has been offered the opportunity for reemployment in a position for which he or she is qualified, not including a teacher who has accepted a teaching position elsewhere. The reemployment shall be upon a teacher's preexisting continuing contract and has the same effect as though the contract had been suspended during the time the teacher was not employed.
(d) In the assignment of position or duties of a teacher under a continuing contract, the board may provide for released time of a teacher for any special professional or governmental assignment without jeopardizing the contractual rights of the teacher or any other rights, privileges or benefits under the provisions of this chapter. Released time shall be provided for any professional educator while serving as a member of the Legislature during any duly constituted session of that body and its interim and statutory committees and commissions without jeopardizing his or her contractual rights or any other rights, privileges, benefits or accrual of experience for placement on the state minimum salary schedule in the following school year under the provisions of this chapter, board policy and law.
(e) Any teacher who fails to fulfill his or her contract with the board, unless prevented from doing so by personal illness or other just cause or unless released from his or her contract by the board, or who violates any lawful provision of the contract, is disqualified to teach in any other public school in the state for a period of the next ensuing school year and the state Department of Education or board may hold all papers and credentials of the teacher on file for a period of one year for the violation: Provided, That marriage of a teacher is not considered a failure to fulfill, or violation of, the contract.
(f) Any classroom teacher, as defined in section one, article one of this chapter, who desires to resign employment with a county board or request a leave of absence, the resignation or leave of absence to become effective on or before July 15 of the same year and after completion of the employment term, may do so at any time during the school year by written notification of the resignation or leave of absence and any notification received by a county board shall automatically extend the teacher's public employee insurance coverage until August 31 of the same year.
(g) (1) A classroom teacher who gives written notice to the county board on or before December 1 of the school year of his or her retirement from employment with the board at the conclusion of the school year shall be paid $500 from the Early Notification of Retirement line item established for the Department of Education for this purpose, subject to appropriation by the Legislature. If the appropriations to the Department of Education for this purpose are insufficient to compensate all applicable teachers, the Department of Education shall request a supplemental appropriation in an amount sufficient to compensate all such those teachers giving the written notice. Additionally, if funds are still insufficient to compensate all applicable teachers, the priority of payment is for teachers who give written notice the earliest. This payment shall not be counted as part of the final average salary for the purpose of calculating retirement.
(2) The position of a classroom teacher providing written notice of retirement pursuant to this subsection may be considered vacant and the county board may immediately post the position as an opening to be filled at the conclusion of the school year. If a teacher has been hired to fill the position of a retiring classroom teacher prior to the start of the next school year, the retiring classroom teacher is disqualified from continuing his or her employment in that position. However, the retiring classroom teacher may be permitted to continue his or her employment in that position and forfeit the early retirement notification payment if, after giving notice of retirement in accordance with this subsection, he or she becomes subject to a significant unforeseen financial hardship, including a hardship caused by the death or illness of an immediate family member or loss of employment of a spouse. Other significant unforeseen financial hardships shall be determined by the county superintendent on a case-by-case basis. This subsection does not prohibit a county school board from eliminating the position of a retiring classroom teacher.
§18A-2-6. Continuing contract status for service personnel; termination.

(a) After three years of acceptable employment, each service personnel employee person who enters into a new contract of employment with the board shall be granted continuing contract status: Provided, That a service personnel employee person holding continuing contract status with one county shall be granted continuing contract status with any other county upon completion of one year of acceptable employment if such the employment is during the next succeeding school year or immediately following an approved leave of absence extending no more than one year. The continuing contract of any such the employee shall remain in full force and effect except as modified by mutual consent of the school board and the employee, unless and until terminated with written notice, stating cause or causes, to the employee, by a majority vote of the full membership of the board before February May 1 of the then current year, or by written resignation of the employee on or before that date. The affected employee has the right of a hearing before the board, if requested, before final action is taken by the board upon the termination of such his or her employment.
(b) Those employees who have completed three years of acceptable employment as of the effective date of this legislation shall be granted continuing contract status.
§18A-2-7. Assignment, transfer, promotion, demotion, suspension and recommendation of dismissal of school personnel by superintendent; preliminary notice of transfer; hearing on the transfer; proof required.

(a) The superintendent, subject only to approval of the board, may assign, transfer, promote, demote or suspend school personnel and recommend their dismissal pursuant to provisions of this chapter. However, an employee shall be notified in writing by the superintendent on or before February April 1 if he or she is being considered for transfer or to be transferred. Only those employees whose consideration for transfer or intended transfer is based upon known or expected circumstances which will require the transfer of employees shall be considered for transfer or intended for transfer and the notification shall be limited to only those employees. Any teacher or employee who desires to protest the proposed transfer may request in writing a statement of the reasons for the proposed transfer. The statement of reasons shall be delivered to the teacher or employee within ten days of the receipt of the request. Within ten days of the receipt of the statement of the reasons, the teacher or employee may make written demand upon the superintendent for a hearing on the proposed transfer before the county board. of education The hearing on the proposed transfer shall be held on or before March May 15. At the hearing, the reasons for the proposed transfer must be shown.
(b) The superintendent at a meeting of the board on or before March May 15 shall furnish in writing to the board a list of teachers and other employees to be considered for transfer and subsequent assignment for the next ensuing school year. An employee who was not provided notice and an opportunity for a hearing pursuant to subsection (a) of this section may not be included on the list. All other teachers and employees not so listed shall be considered as reassigned to the positions or jobs held at the time of this meeting. The list of those recommended for transfer shall be included in the minute record of the meeting and all those so listed shall be notified in writing, which notice shall be delivered in writing, by certified mail, return receipt requested, to the persons' last known addresses within ten days following the board meeting, of their having been so recommended for transfer and subsequent assignment and the reasons therefor.
(c) The superintendent's authority to suspend school personnel shall be temporary only pending a hearing upon charges filed by the superintendent with the board of Education and the period of suspension may not exceed thirty days unless extended by order of the board.
(d) The provisions of this section respecting hearing upon notice of transfer is not applicable in emergency situations where the school building becomes damaged or destroyed through an unforeseeable act and which act necessitates a transfer of the school personnel because of the aforementioned condition of the building.
§18A-2-8a. Notice to probationary personnel of rehiring or nonrehiring; hearing.

(a) The superintendent at a meeting of the board on or before March 15 May 30 of each year shall provide in writing to the board a list of all probationary teachers that he or she recommends to be rehired for the next ensuing school year. The board shall act upon the superintendent's recommendations at that meeting in accordance with section one of this article. The board at this same meeting also shall also act upon the retention of other probationary employees as provided in sections two and five of this article. Any such probationary teacher or other probationary employee who is not rehired by the board at that meeting shall be notified in writing, by certified mail, return receipt requested, to such the persons' last known addresses within ten days following said the board meeting, of their not having been rehired or not having been recommended for rehiring.
(b) Any probationary teacher who receives notice that he or she has not been recommended for rehiring or other probationary employee who has not been reemployed may within ten days after receiving the written notice request a statement of the reasons for not having been rehired and may request a hearing before the board. The hearing shall be held at the next regularly scheduled county board of education meeting or a special meeting of the board called within thirty days of the request for hearing. At the hearing, the reasons for the nonrehiring must be shown.
§18A-2-12. Performance evaluations of school personnel; professional personnel evaluation process.

(a) The Legislature finds that all personnel should be evaluated annually, but there are many methods of evaluating and the types of evaluations can be different.
(a) (b) The state board shall adopt
promulgate a rule in accordance with article three-b, chapter twenty-nine-a of this code adopting a written system for the evaluation of the employment performance of personnel, which system shall be applied uniformly by county boards of education in the evaluation of the employment performance of personnel employed by the board. If necessary, the state board shall promulgate an emergency rule to implement the provisions of this section.
(b) (c) The system adopted by the state board for evaluating the employment performance of professional personnel shall be in accordance with the provisions of this section.
(c) (d) For purposes of this section, "professional personnel", "professional" or "professionals", means professional personnel as defined in section one, article one of this chapter.
(d) (e) In developing the professional personnel performance evaluation system, and amendments thereto, the state board shall consult with the Center for Professional Development created in article three-a of this chapter. The center shall participate actively with the state board in developing written standards for evaluation which clearly specify satisfactory performance and the criteria to be used to determine whether the performance of each professional meets such those standards.
(e) (f) The performance evaluation system shall contain, but shall not be limited to, the following information:
(1) The professional personnel positions to be evaluated, at least including classroom teachers, principals, county superintendents and any other professional personnel to be evaluated, whether they be teachers professional educators, other professional employees or substitute teachers; administrators, principals or others
(2) The frequency and duration of the evaluations which shall be on a regular at least an annual basis and of such frequency and duration as to insure the collection of a sufficient amount of data from which reliable conclusions and findings may be drawn; Provided, That for school personnel with five or more years of experience, who have not received an unsatisfactory rating, evaluations shall be conducted no more than once every three years unless the principal determines an evaluation for a particular school employee is needed more frequently: Provided, however, That for classroom teachers with five or more years of experience who have not received an unsatisfactory rating, an evaluation shall be conducted or professional growth and development plan required only when the principal determines it to be necessary for a particular classroom teacher, or when a classroom teacher exercises the option of being evaluated at more frequent intervals;
(3) The processes for evaluating teachers, professional support personnel and athletic coaches shall be as follows:
(A) Teachers in their first or second year of employment shall be evaluated two times per year. Each evaluation shall include a minimum of two observations of thirty minutes duration each;
(B) Teachers in their third year of employment shall have one evaluation per year including two observations of thirty minutes duration each;
(C) Additional observations and evaluations may be scheduled for teachers in their first, second or third year at the discretion of the principal to address deficiencies or at the discretion of the teacher to improve on results from a previous unsatisfactory evaluation;
(D) Teachers in their fourth or subsequent year of employment
who have not received an unsatisfactory evaluation rating during any of the previous three years shall be evaluated in accordance with paragraphs (A) and (C) of this subdivision, in accordance with paragraphs (B) and (C) of this subdivision or using a professional growth and development plan method of evaluation. The professional growth and development plan method of evaluation may include, but is not limited to, the following:
(i) Obtaining additional certification;
(ii) Obtaining an advanced degree;
(iii) Increasing student achievement;
(iv) Completing leadership training;
(v) Chairing of a school committee such as a local school improvement council, faculty senate or school curriculum team; and (vi) Serving as a mentor teacher.
The teacher and principal or assistant principal, as applicable, shall mutually agree to one of the three evaluation options. If the professional growth and development plan method of evaluation is agreed to, the teacher and principal or assistant principal, as applicable, shall mutually agree on what the professional growth and development plan is to include;
(E) The principal or assistant principal and the teacher shall hold a meeting after the evaluation is concluded to discuss the evaluation. The principal or assistant principal shall record the names of the teachers evaluated by him or her whose performance he or she determines to be satisfactory and for whom no further evaluative measures are required. The principal or assistant principal also shall make record of any walk-through evaluations he or she conducts;
(F) Teachers in their fourth or subsequent year of employment who have received an unsatisfactory evaluation rating during any of the previous three years shall be evaluated using the processes specified in paragraphs (B) and (C) of this subdivision and as may be provided in a written improvement plan to address unsatisfactory performance;
(G) For any teacher that is employed at a different school that is under a different principal than the teacher was under the previous year, that teacher shall be evaluated during the first year of employment at the school in accordance with paragraphs (A) and (C) regardless of the number of years previously employed in another school. Any teacher that is employed at a school that is given low-performing accreditation status pursuant to section five, article two-e, chapter eighteen of this code, is not subject to the evaluation requirement set forth in this paragraph;
(H) The evaluation of professional support personnel and athletic coaches shall be conducted under a similar process;
(I) Each person evaluated under the provisions of this subdivision shall be provided written results of their evaluation; and
(J) Any school that is receiving a federal School Improvement Grant and any employees assigned to the school are exempt from any requirement of this subdivision that conflicts with any conditions for receiving that grant.
(3) (4) The evaluation shall serve the following purposes:
(A) Serve as a basis for the improvement of the performance of the personnel in their assigned duties;
(B) Provide an indicator of satisfactory performance for individual professionals;
(C) Serve as documentation for a dismissal on the grounds of unsatisfactory performance; and
(D) Serve as a basis for programs to increase the professional growth and development of professional personnel;
(4) (5) The standards for satisfactory performance for professional personnel and the criteria to be used to determine whether the performance of each professional meets such those standards and other criteria for evaluation for each professional position evaluated. Effective July 1, 2003 and thereafter, professional personnel, as appropriate, shall demonstrate competency in the knowledge and implementation of the technology standards adopted by the state board. If a professional fails to demonstrate competency, in the knowledge and implementation of these standards, he or she will be subject to an improvement plan to correct the deficiencies; and
(5) (6) Provisions for a written improvement plan to address unsatisfactory performance, which shall be specific as to what improvements, if any, are needed in the performance of the professional and shall clearly set forth recommendations for improvements, including recommendations for additional education and training during the professional's recertification process.
(f) (g) A professional whose performance is considered to be unsatisfactory shall be given notice of deficiencies. A remediation plan to correct deficiencies shall be developed by the employing county board of education and the professional. The professional shall be given a reasonable period of time for remediation of the deficiencies and shall receive a statement of the resources and assistance available for the purposes of correcting the deficiencies.
(g) (h) No person may evaluate professional personnel for the purposes of this section unless the person has an administrative certificate issued by the state superintendent and has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education training approved by the state board, which will enable the person to make fair, professional, and credible evaluations of the personnel whom the person is responsible for evaluating. After July 1, 1994, No person may be issued an administrative certificate or have an administrative certificate renewed unless the state board determines that the person has successfully completed education and training in evaluation skills through the center for professional development, or equivalent education and training approved by the state board.
(h) (i) Any professional whose performance evaluation includes a written improvement plan to address unsatisfactory performance shall be given an opportunity to improve his or her performance through the implementation of the plan. If the next performance evaluation shows that the professional is now performing satisfactorily, no further action may be taken concerning the original performance evaluation. If the evaluation shows that the professional is still not performing satisfactorily, the evaluator either shall make additional recommendations for improvement or may recommend the dismissal of the professional in accordance with the provisions of section eight of this article.
(i) (j) Lesson plans are intended to serve as a daily guide for teachers and substitutes for the orderly presentation of the curriculum. Lesson plans may not be used as a substitute for observations by an administrator in the performance evaluation process. A classroom teacher, as defined in section one, article one of this chapter, may not be required to post his or her lesson plans on the Internet or otherwise make them available to students and parents or to include in his or her lesson plans any of the following:
(1) Teach and reteach strategies;
(2) Write to learn activities;
(3) Cultural diversity;
(4) Color coding; or
(5) Any other similar items which are not required to serve as a guide to the teacher or substitute for daily instruction. and
(j) (k) The Legislature finds that classroom teachers must be free of unnecessary paper work so that they can focus their time on instruction. Therefore, classroom teachers may not be required to keep records or logs of routine contacts with parents or guardians.
(k) (l) Nothing in this section may be construed to prohibit classroom teachers from voluntarily posting material on the Internet.
§18A-2-12a. Statement of policy and practice for the county boards and school personnel to minimize possible disagreement and misunderstanding.

(a) The Legislature makes the following findings:
(1) The effective and efficient operation of the public schools depends upon the development of harmonious and cooperative relationships between county boards and school personnel;
(2) Each group has a fundamental role to perform in the educational program and each has certain separate, distinct and clearly defined areas of responsibility as provided in chapters eighteen and eighteen-a of this code; and
(3) There are instances, particularly involving questions of wages, salaries and conditions of work, that are subject to disagreement and misunderstanding between county boards and school personnel and may not be so clearly set forth.
(b) The purpose of this section is to establish a statement of policy and practice for the county boards and school personnel, as follows, in order to minimize possible disagreement and misunderstanding:
(1) County boards, subject to the provisions of this chapter, chapter eighteen of this code and the policies and rules of the state board, are responsible for the management of the schools within their respective counties. The powers and responsibilities of county boards in setting policy and in providing management are broad, but not absolute;
(2) The school personnel shares the responsibility for putting into effect the policies and practices approved by the county board that employs them and the school personnel also have certain rights and responsibilities as provided in statute, and in their contracts;
(3) School personnel are entitled to meet together, form associations and work in concert to improve their circumstances and the circumstances of the schools;
(4) County boards and school personnel can most effectively discharge their total responsibilities to the public and to each other by establishing clear and open lines of communication. School personnel should be encouraged to make suggestions, proposals and recommendations through appropriate channels to the county board. Decisions of the county board concerning the suggestions, proposals and recommendations should be communicated to the school personnel clearly and openly;
(5) Official meetings of county boards are public meetings. School personnel are free to attend the meetings without fear of reprisal and should be encouraged to attend;
(6) All school personnel are entitled to know how well they are fulfilling their responsibilities and should be offered the opportunity of open and honest evaluations of their performance on a regular basis and in accordance with the provisions of section twelve of this article. All school personnel are entitled to opportunities to improve their job performance prior to the termination or transfer of their services. Decisions concerning the promotion, demotion, transfer or termination of employment of school personnel, other than those for lack of need or governed by specific statutory provisions unrelated to performance, should be based upon the evaluations, and not upon factors extraneous thereto. All school personnel are entitled to due process in matters affecting their employment, transfer, demotion or promotion; and
(7) All official and enforceable personnel policies of a county board must be written and made available to its employees.
The bill (Eng. Com. Sub. for H. B. No. 2757), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2860, Authorizing the promulgation of rules by the Governor's Committee on Crime, Delinquency and Correction.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2863, Providing for the costs of disability physical and/or mental examinations approved by the Consolidated Public Retirement Board under the West Virginia State Police plan.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2885, Allowing a guardian or conservator to be employed or in an employment contract with a behavioral health provider.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2936, Changing the date of the canvassing of votes in a primary election.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 2946, Requiring the issuance of a lawful prescription for dispensing drug products containing chemical precursors of methamphetamine.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on the Judiciary, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §60A-10-5 and §60A-10-8 of the Code of West Virginia,1931, as amended, be repealed; that §60A-2-210 and §60A-2- 212 of said code be amended and reenacted; that §60A-10-2,§60A-10- 3, §60A-10-4, §60A-10-6, §60A-10-7 and §60A-10-11 of said code be amended and reenacted, all to read as follows:
ARTICLE 2. STANDARDS AND SCHEDULES.
§60A-2-210. Schedule IV.
(a) Schedule IV shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
(b) Narcotic drugs. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture, or preparation containing any of the following narcotic drugs, or their salts calculated as the free anhydrous base or alkaloid, in limited quantities as set forth below:
(1) Not more than 1 milligram of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit;
(2) Dextropropoxyphene (alpha-(+)-4-dimethylamino-1,2- diphenyl-3-methyl-2-propionoxybutane).
(c) Depressants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances, including its salts, isomers and salts of isomers whenever the existence of such salts, isomers and salts of isomers is possible within the specific chemical designation:
(1) Alprazolam;
(2) Barbital;
(3) Bromazepam;
(4) Camazepam;
(5) Carisoprodol;
(6) Chloral betaine;
(7) Chloral hydrate;
(8) Chlordiazepoxide;
(9) Clobazam;
(10) Clonazepam;
(11) Clorazepate;
(12) Clotiazepam;
(13) Cloxazolam;
(14) Delorazepam;
(15) Diazepam;
(16) Estazolam;
(17) Ethchlorvynol;
(18) Ethinamate;
(19) Ethyl loflazepate;
(20) Fludiazepam;
(21) Flunitrazepam;
(22) Flurazepam;
(23) Halazepam;
(24) Haloxazolam;
(25) Ketazolam;
(26) Loprazolam;
(27) Lorazepam;
(28) Lormetazepam;
(29) Mebutamate;
(30) Medazepam;
(31) Meprobamate;
(32) Methohexital;
(33) Methylphenobarbital (mephobarbital);
(34) Midazolam;
(35) Nimetazepam;
(36) Nitrazepam;
(37) Nordiazepam;
(38) Oxazepam;
(39) Oxazolam;
(40) Paraldehyde;
(41) Petrichloral;
(42) Phenobarbital;
(43) Pinazepam;
(44) Prazepam;
(45) Quazepam;
(46) Temazepam;
(47) Tetrazepam;
(48) Triazolam;
(49) Zolpidem.
(d) Fenfluramine. Any material, compound, mixture or preparation which contains any quantity of the following substance, including its salts, isomers (whether optical, position or geometric) and salts of such isomers whenever the existence of such salts, isomers and salts of isomers is possible: Fenfluramine.
(e) Stimulants. Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers and salts of isomers:
(1) Cathine ((+)-norpseudoephedrine);
(2) Diethylpropion;
(3) Fencamfamin;
(4) Fenproporex;
(5) Mazindol;
(6) Mefenorex;
(7) Pemoline (including organometallic complexes and chelates thereof);
(8) Phentermine;
(9) Pipradrol;
(10) SPA ((-)-1-dimethylamino-1,2-diphenylethane).
(f) Any compound, mixture or preparation containing as an active ingredient ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers: Provided, That neither the offenses set forth in section four hundred one, article four of this chapter, nor the penalties therein, shall be applicable to ephedrine, pseudoephedrine or phenylpropanolamine which shall be subject to the provisions of article ten of this chapter.
(f) (g) Other substances. -- Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances, including its salts:
(1) Pentazocine;
(2) Butorphanol.
Amyl nitrite, butyl nitrite, isobutyl nitrite and the other organic nitrites are controlled substances and no product containing these compounds as a significant component shall be possessed, bought or sold other than pursuant to a bona fide prescription or for industrial or manufacturing purposes.
§60A-2-212. Schedule V.
(a) Schedule V shall consist of the drugs and other substances, by whatever official name, common or usual name, chemical name, or brand name designated, listed in this section.
(b) Narcotic drugs. -- Unless specifically excepted or unless listed in another schedule, any material, compound, mixture or preparation containing any of the following narcotic drugs and their salts, as set forth below:
(1) Buprenorphine.
(c) Narcotic drugs containing nonnarcotic active medicinal ingredients. Any compound, mixture or preparation containing any of the following narcotic drugs or their salts calculated as the free anhydrous base or alkaloid in limited quantities as set forth below, which shall include one or more nonnarcotic active medicinal ingredients in sufficient proportion to confer upon the compound, mixture or preparation valuable medicinal qualities other than those possessed by the narcotic drug alone:
(1) Not more than 200 milligrams of codeine per 100 milliliters or per 100 grams;
(2) Not more than 100 milligrams of dihydrocodeine per 100 milliliters or per 100 grams;
(3) Not more than 100 milligrams of ethylmorphine per 100 milliliters or per 100 grams;
(4) Not more than 2.5 milligrams of diphenoxylate and not less than 25 micrograms of atropine sulfate per dosage unit;
(5) Not more than 100 milligrams of opium per 100 milliliters or per 100 grams;
(6) Not more than 0.5 milligrams of difenoxin and not less than 25 micrograms of atropine sulfate per dosage unit.
(d) Stimulants. -- Unless specifically exempted or excluded or unless listed in another schedule, any material, compound, mixture or preparation which contains any quantity of the following substances having a stimulant effect on the central nervous system, including its salts, isomers and salts of isomers:
(1) Pyrovalerone.
(e) Any compound, mixture or preparation containing as its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine, their salts or optical isomers, or salts of optical isomers except products which are for pediatric use primarily intended for administration to children under the age of twelve: Provided, That neither the offenses set forth in section four hundred one, article four of this chapter, nor the penalties therein, shall be applicable to ephedrine, pseudoephedrine or phenylpropanolamine which shall be subject to the provisions of article ten of this chapter.
ARTICLE 10. METHAMPHETAMINE LABORATORY ERADICATION ACT.
§60A-10-2. Purpose; findings.
The Legislature finds:
(a) That the illegal production and distribution of methamphetamine is an increasing problem nationwide and particularly prevalent in rural states such as West Virginia.
(b) That methamphetamine is a highly addictive drug that can be manufactured in small and portable laboratories. These laboratories are operated by individuals who manufacture the drug in a clandestine and unsafe manner, often resulting in explosions and fires that can injure not only the individuals involved, but their families, neighbors, law-enforcement officers and firemen.
(c) That use of methamphetamine can result in fatal kidney and lung disorders, brain damage, liver damage, blood clots, chronic depression, hallucinations, violent and aggressive behavior, malnutrition, disturbed personality development, deficient immune system and psychosis. Children born to mothers who are abusers of methamphetamine can be born addicted and suffer birth defects, low birth weight, tremors, excessive crying, attention deficit disorder and behavior disorders.
(d) That in addition to the physical consequences to an individual who uses methamphetamine, usage of the drug also produces an increase in automobile accidents, explosions and fires, increased criminal activity, increased medical costs due to emergency room visits, increases in domestic violence, increased spread of infectious diseases and a loss in worker productivity.
(e) That environmental damage is another consequence of the methamphetamine epidemic. Each pound of methamphetamine produced leaves behind five to six pounds of toxic waste. Chemicals and byproducts that result from the manufacture of methamphetamine are often poured into plumbing systems, storm drains or directly onto the ground. Clean up of methamphetamine laboratories is extremely resource-intensive, with an average remediation cost of five thousand dollars.
(f) That in other states which have required a prescription for those products containing substances that are necessary to the manufacturing of methamphetamine, there has been a significant decrease in the number of methamphetamine laboratories found in those states.
(f) (g) That it is in the best interest of every West Virginian to develop a viable solution to address the growing methamphetamine problem in the State of West Virginia. The Legislature finds that restricting access to over-the-counter drugs used to facilitate production of methamphetamine is necessary to protect the public safety of all West Virginians.
(g) (h) That it is further in the best interests of every West Virginian to create impediments to the manufacture of methamphetamine by requiring persons purchasing chemicals necessary to the process to provide identification have a lawful prescription before purchasing.
§60A-10-3. Definitions.

In this article:
(a) "Board of Pharmacy" or "board" means the West Virginia Board of Pharmacy established by the provisions of article five, chapter thirty of this code.
(b) "Designated precursor" means any drug product made subject to the requirements of this article by the provisions of section seven of this article.
(c) "Distributor" means any person within this state or another state, other than a manufacturer or wholesaler, who sells, delivers, transfers or in any manner furnishes a drug product to any person who is not the ultimate user or consumer of the product;
(d) "Drug product" means a pharmaceutical product that contains as an its single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or a substance identified on the supplemental list provided for in section seven of this article which may be sold without a prescription and which is labeled for use by a consumer in accordance with the requirements of the laws and rules of this state and the federal government.
(e) "Ephedrine " means ephedrine, its salts or optical isomers or salts of optical isomers.
(f) "Manufacturer" means any person within this state who produces, compounds, packages or in any manner initially prepares for sale or use any drug product or any such person in another state if they cause the products to be compounded, packaged or transported into this state.
(g) "Phenylpropanolamine" means phenylpropanolamine, its salts, optical isomers and salts of optical isomers.
(h) "Pseudoephedrine" means pseudoephedrine, its salts, optical isomers and salts of optical isomers.
(i) "Precursor" means any substance which may be used along with other substances as a component in the production and distribution of illegal methamphetamine.
(j) "Pharmacist" means an individual currently licensed by this state to engage in the practice of pharmacy and pharmaceutical pharmacy care as defined in subsection (t), section one-b, article fifty five, chapter thirty of this code.
(k) "Pharmacy intern" has the same meaning as the term "intern" as set forth in section one-b, article five, chapter thirty of this code.
(l) "Pharmacy" means any drugstore, apothecary or place within this state where drugs are dispensed and sold at retail or display for sale at retail and pharmaceutical pharmacist care is provided outside of this state where drugs are dispensed and pharmaceutical pharmacy care is provided to residents of this state.
(m) "Pharmacy counter" means an area in the pharmacy restricted to the public where controlled substances are stored and housed and where controlled substances may only be sold, transferred or dispensed by a pharmacist or pharmacy technician.
(n) (m) "Pharmacy technician" means a registered technician who meets the requirements for registration as set forth in article five, chapter thirty of this code.
(o) "Retail establishment" means any entity or person within this state who sells, transfers or distributes goods, including over-the-counter drug products, to an ultimate consumer.
(p) (n) "Schedule V IV" means the schedule of controlled substances set out in section two hundred twelve section ten, article two of this chapter.
(q) "Single active ingredient" means those ingredients listed on a drug product package as the only active ingredient in over- the-counter medication or identified on the Schedule maintained by the Board of Pharmacy as being primarily used in the illegal production and distribution of methamphetamine.
(r) (o) "Superintendent of the State Police" or "Superintendent" means the Superintendent of the West Virginia State Police as set forth in section five, article two, chapter fifteen of this code.
(s) (p) "Wholesaler" means any person within this state or another state, other than a manufacturer, who sells, transfers or in any manner furnishes a drug product to any other person in this state for the purpose of being resold.
§60A-10-4. Purchase, receipt, acquisition and possession of substances to be used as precursor to manufacture of methamphetamine or another controlled substance; offenses; exceptions; penalties.

(a) Any person who within any thirty-day period knowingly purchases, receives or otherwise possesses more than three packages of a drug product the amount prescribed in a single prescription containing as its single an active ingredient ephedrine, pseudoephedrine or phenylpropanolamine or more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine in any form shall be guilty of a misdemeanor and, upon conviction, shall be confined in a jail for not more than one year, fined not more than $1,000, or both,
unless the person can provide an order from a person authorized to prescribe controlled substances explaining why the multiple prescriptions are medically necessary.
(b) Notwithstanding the provisions of subsection (a) of this section, any person convicted of a second or subsequent violation of the provisions of said subsection or a statute or ordinance of the United States or another state which contains the same essential elements shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than one nor more than five years, fined not more than $25,000, or both.
(c) The provisions of subsection (a) of this section shall not apply to:
(1) Drug products which are for pediatric use primarily intended for administration to children under the age of twelve;
(2) Drug products which have been determined by the Board of Pharmacy to be in a form which is unamenable to being used for the manufacture of methamphetamine;
(3) Persons lawfully possessing drug products in their capacities as distributors, wholesalers, manufacturers, pharmacists, pharmacy interns, pharmacy technicians, health care professionals or persons possessing such drug products pursuant to a valid prescription.
(d) Notwithstanding any provision of this code to the contrary, any person who knowingly possesses any amount of ephedrine, pseudoephedrine, phenylpropanolamine or other designated precursor with the intent to use it in the manufacture of methamphetamine or who knowingly possesses a substance containing ephedrine, pseudoephedrine or phenylpropanolamine or their salts, optical isomers or salts of optical isomers in a state or form which is, or has been altered or converted from the state or form in which these chemicals are, or were, commercially distributed shall be guilty of a felony and, upon conviction, shall be confined in a state correctional facility for not less than two nor more than ten years, fined not more than $25,000, or both.
(e) (1) Any pharmacy, wholesaler, manufacturer or distributor of drug products containing as their single an active ingredient ephedrine, pseudoephedrine, phenylpropanolamine, their salts or optical isomers or salts of optical isomers or other designated precursor shall obtain a registration annually from the State Board of Pharmacy as described in section six of this article. Any such pharmacy, wholesaler, manufacturer or distributor shall keep complete records of all sales and transactions as provided in section eight of this article. The records shall be gathered and maintained pursuant to legislative rule promulgated by the Board of Pharmacy.
(f) It is an affirmative defense to any offense in this section that the person:
(1) Obtained the drug(s) containing ephedrine, pseudoephedrine or phenylpropanolamine lawfully;
(2) Possessed no more than nine grams of ephedrine, pseudoephedrine or phenylpropanolamine in any form; and
(3) Possessed products containing ephedrine, pseudoephedrine or phenylpropanolamine for legitimate medical purposes for himself, herself or his or her household and such possession was not for the manufacture of methamphetamine.
(2) (4) Any drug products possessed without a registration as provided in this section are subject to forfeiture upon conviction for a violation of this section.
(3) (5) In addition to any administrative penalties provided by law, any violation of this subsection is a misdemeanor, punishable upon conviction by a fine in an amount not more than $10,000.
§60A-10-6. Registration to sell, manufacture or distribute products; rule-making authority.

The State Board of Pharmacy shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to require that every wholesaler, manufacturer or distributor of any drug product containing as their single an active ingredient ephedrine or pseudoephedrine or a substance identified on the supplemental list provided for in section seven of this article shall obtain a registration and permit issued by the State Board of Pharmacy to sell, distribute or transfer the product containing as their single active ingredient ephedrine, pseudoephedrine or phenylpropanolamine.
§60A-10-7. Restricted products; rule-making authority.
(a) On or before July 1, 2005, The Board of Pharmacy shall promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to implement a program wherein the Board of Pharmacy shall consult consults with the Superintendent of the State Police in identifying drug products which are a designated precursor, in addition to those that contain as their single an active ingredient ephedrine, pseudoephedrine or phenylpropanolamine, that are commonly being used in the production and distribution of methamphetamine. Those drug products which the Superintendent of the State Police have demonstrated by empirical evidence are commonly used in the manufacture of methamphetamine shall be added to a supplemental list and shall be are subject to all of the restrictions of this article. These The rules established pursuant to this section shall include;
(1) a process whereby pharmacies are made aware of all drug products that contain as their single an active ingredient ephedrine, pseudoephedrine and phenylpropanolamine that will be listed as a Schedule V IV substance. and must be sold, transferred or dispensed from behind a pharmacy counter; and
(2) A process whereby pharmacies and retail establishments are made aware of additional drug products added to Schedule VIII that are required to be placed behind the pharmacy counter for sale, transfer or distribution can be periodically reviewed and updated.
Wholesale drug distributors licensed by the Board of Pharmacy and registered with, and regulated by, the United States Drug Enforcement Administration are exempt from storage, reporting, record keeping or physical security control requirements for products containing ephedrine, pseudoephedrine and phenylpropanolamine.
(b) At any time after July 1, 2005, the Board of Pharmacy, upon the recommendation of the superintendent of the State Police, shall promulgate emergency and legislative rules pursuant to the provision of article three, chapter twenty-nine-a of this code to implement an updated supplemental list of products containing the controlled substances ephedrine, pseudoephedrine or phenylpropanolamine as an active ingredient or any other drug used as a precursor in the manufacture of methamphetamine, which the superintendent of the State Police has demonstrated by empirical evidence is being used in the manufacture of methamphetamine. This listing process shall comport with the requirements of subsection (a) of this section.
The Board of Pharmacy may exempt from the prescription requirements for products containing as an active ingredient ephedrine, pseudoephedrine or phenylpropanolamine enacted during the 2011 Regular session of the legislature, any product which it empirically determines contains such controlled substances in a compound or form which makes it unable to be used in the manufacturing of methamphetamine. The Board shall make pharmacists aware of any products which no longer require a prescription.
§60A-10-11. Reporting to the Legislative Oversight Commission on Health and Human Resources Accountability.

On or before the first day of December, two thousand five eleven, the Superintendent of the West Virginia State Police shall submit a report including findings, conclusions and recommendations, together with drafts of any legislation necessary, to improve the effectiveness of a reduction in illegal methamphetamine production and distribution to the Legislative Oversight Commission on Health and Human Resources Accountability for consideration.
The bill (Eng. Com. Sub. for H. B. No. 2946), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 2949, Providing definitions of "low income" for purposes of property tax relief programs.
On second reading, coming up in regular order, was read a second time.
At the request of Senator Chafin, and by unanimous consent, the bill was advanced to third reading with the right for amendments to be considered on that reading.
Eng. Com. Sub. for House Bill No. 2986, Relating to forest fire seasons.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Natural Resources, was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That §20-3-5 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 3. FORESTS AND WILDLIFE AREAS.
§20-3-5. Forest fire seasons; prohibited and permissible fires; burning permits and fees; fire control measures; criminal and civil penalties.

(a) Forest fire seasons. -- The periods of each year between March 1 and through May 31, inclusive and October 1 and through December 31, inclusive are hereby designated as forest fire seasons. No person shall during any such During any fire season, except between the hours of four o'clock p.m. and seven o'clock a.m. prevailing time, a person may set on fire or cause to be set on fire any forest land, or any grass, grain, stubble, slash, debris, or other inflammable materials only between five o'clock p.m. and seven o'clock a.m., at which time the fire must be extinguished. Any fire set during this time shall be extinguished prior to seven o'clock a.m. prevailing time.
(b) Permissible fires during forest fire seasons. -- Such prohibition of fires between seven o'clock a.m. and four o'clock p.m. : prevailing time shall not be construed to include The following attended fires are permitted without a burning permit unless there is a burning ban in effect:
(1) Small fires set for the purpose of food preparation, or providing light or warmth around which all grass, brush, stubble, or other debris has been removed for a distance of ten feet from the fire; and
(2)
Burning which may be conducted at any time when the ground surrounding the burning site is covered by one inch or more of snow.
Any person who sets or causes to be set any fire permitted by this section shall not leave such fire unattended for any period of time.
(c) Burning permits. -- The director or his designated appointees or employees or her
designee may issue burning permits authorizing fires prohibited by the preceding paragraph. Such permits may be granted on such conditions and for such periods of time as the director deems necessary during forest fire seasons that are otherwise prohibited by this section. The permits shall state the requisite conditions and time frame to prevent danger from the fire to life or property. and noncompliance
(1)
Permit fees. -- Entities required to pay a permit fee are those engaged in commercial, manufacturing, public utility, mining and like activities. Agricultural activities are exempt from paying the permit fee. The permit fee is $125 per site and shall be deposited into the Division of Forestry Fund (3081) to be used to administer the provisions of this section. The permit fee covers the fire season during which it is issued.
(2) Noncompliance with any term condition of the permit shall be is a violation of this section. Any permit which was obtained through willful misrepresentation shall be is invalid and violates this section.
(3) All Permit holders shall take all necessary and adequate precautions to confine and control any fire permitted by the authorization; failure fires authorized by the permit. Failure to take such action shall be is a violation of this section and shall be is justification for the director or his duly authorized representative to cancel to revoke the permit.
(d) Fire control. -- When the director considers it necessary to prevent danger from fire to life or property, he may, with the prior
(1) With approval of the Governor, the director may prohibit the starting of and require the extinguishment of any fire in any area designated by the director, and such action may include any fire for which a permit has been issued under the preceding paragraph. In addition, if so deemed necessary, the director may, with the prior area, including fires permitted by this section.
(2) With
approval of the Governor, the director may designate any forest area as a danger area, and prohibit entry, thereon or use thereof except for the purposes and on the conditions he designates and declare conditional uses and prohibited areas of the forest by proclamation at any time of the year. The director by proclamation shall establish such areas and designate which fires are prohibited therein; and if a danger area is established, he shall announce the purposes for which and conditions under which entry thereon or use thereof may be made. Action hereunder may be taken by the director at any time during the year. Notice of any proclamation hereunder The proclamation shall be furnished to newspapers, radio stations and television stations which that serve the designated area designated. The proclamation shall not be effective until twenty-four hours after it is proclaimed. Any and shall become effective after twenty-four hours. The proclamation hereunder shall remain in force remains in effect until the director, with the approval of the Governor, by order terminates it. The order shall designate the time of termination, and notice of any such the order shall be furnished to each newspaper, radio station and television station which that received a copy of the proclamation. Any person who starts or fails to extinguish a fire so prohibited or enters or uses a danger area otherwise than permitted shall be guilty of a violation of this section.
(3) No burning allowed by this section may be done unless Burning is not permitted by this section until all inflammable material has been removed from around the material to be burned as and a safety strip for a distance which insures that the fire will not escape and which is no less than of at least ten feet is established to ensure that the fire will not escape. Any person or his agent or employee who sets or causes to be set any fire at any time in the use and occupation of any land on which the burning was being done is in violation of this section if fire escapes beyond the safety strip and shall be guilty of a misdemeanor.
(e) Criminal and civil penalties. -- A person or entity that violates this section is guilty of a misdemeanor and, upon conviction, shall be fined not less than $100 and not more than $1,000 for each violation. In addition to fines and costs, a person or entity convicted of a violation of this section shall pay a $200 civil penalty to the division within sixty days. The civil penalty shall be collected by the court in which the person is convicted and forwarded to the division and deposited in the Division of Forestry Fund (3081) to be used to administer the provisions of this section.

The bill (Eng. Com. Sub. for H. B. No. 2986), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3034, Recognizing outstanding students who are top achievers in scholastic studies.
On second reading, coming up in regular order, was read a second time.
The following amendment to the bill, from the Committee on Education, was reported by the Clerk and adopted:
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 two new sections, designated §18-2-38 and §18-2- 39; and that said code be amended by adding thereto a new section, designated §18-2E-8g, all to read as follows:
ARTICLE 2. STATE BOARD OF EDUCATION.
§18-2-38. State board to establish high-quality digital learning program.

(a) The Legislature finds that:
(1) As technology becomes an increasingly integral part of our society, it has become imperative for West Virginia's students to have digital media incorporated into their learning curriculums. Many students use digital media in every aspect of their lives outside of school, yet our approach to learning is roughly the same as it was fifty years ago. In order to keep students engaged, we must present information using a format they are familiar with, such as digital learning;
(2) The traditional approach to learning is resulting in a great number of West Virginia students dropping out of high school or graduating unprepared for college or the workforce. This is evidenced by the high number of students who enter college needing to take developmental courses;
(3) Finding resources to improve the education system is never easy. However, a high-quality education system should be viewed as an investment in the future economy that has a high rate of return. This return is a skilled workforce to fill high-wage jobs which is a valuable resource for the state;
(4) Former Governor of West Virginia, Bob Wise, and former Governor of Florida, Jeb Bush, created the Digital Learning Council to identify policies that would integrate current and future technological innovations into public education. The council included more than one hundred leaders from education, government, philanthropy, business, technology and think tanks. The council identified ten elements of high-quality digital learning; and
(5) Digital learning can customize and personalize education allowing students to learn in their own style and at their own pace. Digital learning breaks down geographic barriers allowing every student to enroll in courses they would not otherwise have access to. Students in the most remote areas can enroll in high- quality college-prep and career-prep courses taught by a highly qualified teacher through multiple access points.
(b) The provisions of this section are subject to appropriation by the Legislature and subject to the provision of adequate professional development for teachers.
(c) The state board shall promulgate a rule in accordance with article three-b, chapter twenty-nine-a of this code establishing a high-quality digital learning program in accordance with this article. The program shall encompass the following ten elements:
(1) Student eligibility: All students are digital learners. The West Virginia Department of Education shall ensure access to high quality digital content and on-line courses for all students enrolled in kindergarten through grade twelve at any time in their academic career and also to all who are not enrolled in a public school in grades kindergarten through twelve but are eligible for enrollment.
(2) Student access: All students have access to high-quality digital content and on-line courses.
(A) The West Virginia Department of Education only may limit access to high-quality digital learning based on capacity. Nothing may restrict access to high-quality digital content and on-line courses based on arbitrary class-size ratios, arbitrary caps on enrollment, arbitrary caps on budget or geography.
(B) The West Virginia Department of Education shall require students to take high-quality on-line college-preparation or career-preparation courses as a condition to earning a high school diploma.
(3) Personalized learning: All students can customize their education using digital content through an approved digital learning provider.
(A) Students may take on-line classes full-time, part-time or by individual course.
(B) Students may enroll with multiple digital learning providers and blend online courses with on-site learning.
(C) Students may enroll year round.
(D) Students may earn an unlimited number of credits on-line.
(E) Students may experience hybrid learning which means that they may learn in an on-line or computer-based environment part of the day and in a traditional classroom, even one-on-one tutoring for part of the day.
(4) Advancement: Students progress based on demonstrated competency.
(A) Advancement shall be based on demonstrated competency and not on seat-time requirements.
(B) Students shall take assessments when they are ready to complete the course or unit in order to demonstrate competency.
(5) Content: Digital content, instructional materials and on- line and blended learning courses are high quality. Digital content and on-line and blended learning courses shall be aligned with state standards or internationally benchmarked standards where applicable.
(6) Instruction: Digital instruction and teachers are high quality.
(A) The Legislature and state board shall develop and provide alternative certification routes including on-line instruction and performance-based certification.
(B) An on-line teacher from any state shall meet the Essential Principles of High Quality Online Teaching developed by the Southern Regional Education Board.
(C) The state board shall maximize the use of digital instruction to allow one digital educator to provide instruction across the state and nation.
(D) Teacher preparation programs are encouraged to offer targeted digital instruction training and shall adopt digital instruction training in all teacher preparation programs by the 2012-2013 school year.
(E) A teacher may not teach an on-line or blended learning course unless that teacher has had professional development or training to use the technology for teaching an on-line or blended learning course.
(7) Digital learning providers: All students have access to multiple high-quality digital learning providers.
(A) The West Virginia Department of Education shall create an open transparent, expeditious approval process for digital learning providers. In addition to the new process, the already established instructional materials adoption process or the West Virginia Virtual School evaluation process for content providers may be used. Since there is a rigorous evaluation component for content alignment to state standards, all three methods are exempt from the procurement requirements set forth in chapter five-a of this code to meet the critical time lines of providing content to students and teachers when needed.
(B) Students shall have access to multiple approved digital learning providers including public, private and nonprofit and all are treated equally.
(C) All students shall have access to all approved digital learning providers.
(D) The state board may not require that digital learning providers be located in this state nor may the state board create any administrative requirements that would unnecessarily limit participation of high-quality providers.
(E) The state board shall ensure that easy-to-understand information about digital learning, including information about programs, content, courses, tutors and other digital resources, is provided to students.
(8) Assessment and accountability: Student learning is one method of evaluating the quality of content and instruction.
(A) The state board shall provide for the administration of assessments digitally, and shall create a digital formative assessment system.
(B) The state board shall evaluate the quality of content and courses predominately based on student learning data, and shall terminate the contracts of digital learning providers and programs that do not achieve an acceptable level of student learning as defined by the state board in the rule required by this section.
(C) The state board shall evaluate the effectiveness of teachers based partly on student learning data.
(D) The Legislature and state board shall hold schools and digital learning providers accountable for achievement and growth.
(9) Funding: Funding creates incentives for performance, options and innovation.
(A) The state board shall develop a funding model that pays digital learning providers in installments that incentivize completion and achievement.
(B) Digital content may be acquired through funding for instructional resources. The state board shall ensure that instructional resources adoption practices do not discourage digital content. If the state board finds that any part of this code related to instructional resources adoption discourages digital content, the state board shall make a recommendation to the Legislature for amending this code.
(C) The state board shall ensure that state funding allows for customization of education including choice of digital learning providers. If the state board finds that any part of this code inhibits customization of education, the state board shall make a recommendation to the Legislature for amending this code.
(10) Delivery: Infrastructure supports digital learning.
(A) The state board shall ensure that textbooks are being replaced, when appropriate, with digital content, including interactive and adaptive multimedia. The state board shall develop a plan for accomplishing this and report the plan to the Legislative Oversight Commission on Education Accountability before December 1, 2011.
(B) The state board shall work with the Legislature and other entities to ensure that Internet access is available for learning for public school teachers and students.
(C) The state board shall work with the Legislature and other entities to ensure that all public school students and teachers have Internet access devices for learning.
(D) The state board shall maximize purchasing power to negotiate lower cost licenses and contracts for digital content and online courses.
(E) The state board shall ensure that local and state data systems and related applications are updated and robust to inform longitudinal management decisions, accountability and instruction.
§18-2-39. Middle School Global 21.
(a) The Legislature finds that:
(1) West Virginia students continue to face an achievement gap between themselves and students in other states and internationally, beginning, in many cases, in middle school. For example, according to the National Assessment of Educational Progress (NAEP) report, "The Nation's Report Card: Science 2009," West Virginia students' scores are consistent with the national average in fourth grade, but have dropped into the lower fifteen states by eighth grade. It is crucial that we find innovative ways of keeping our middle school students engaged in learning, both to increase student achievement and to lower high school drop out rates. One approach to accomplishing these goals is through the implementation of digital learning in conjunction with career and technical education;
(2) Career and technical education is closely tied to successful work force development in West Virginia. According to the Georgetown University Center on Education and the Workforce, by 2018, forty-nine percent of all jobs in West Virginia will require some education beyond high school in order to maintain our current economic productivity. Of those jobs, fifty-eight percent will be filled by those with certificates or associate's degree. Meeting this goal necessitates a successful partnership between public and higher education in order to enhance college and career readiness. Providing dual enrollment opportunities for high school students in community and technical college programs will encourage them to stay in school and stay engaged; furthermore it will create a viable pipeline towards degrees and certificates, rather than just compartmentalizing at-risk students;
(3) Blending academics and career and technical education can raise graduation rates and achievement according to the Southern Regional Education Board. Combining core learning principles with applied vocational learning modules and delivering them through digital learning media should serve that purpose, while also adhering to the high-quality digital learning elements set forth in section thirty-eight of this article;
(4) The state board has developed and is seeking funding to implement an initiative entitled "Middle School Global 21". The goals identified for this program are to:
(A) Increase student achievement in all core subject areas in order to enhance career and college readiness; and
(B) Increase student "informed" decisions and establishment of realistic career goals;
(5) The state board also has identified objectives for the initiative. These include:
(A) Include authentic, real-world application modules that enhance career readiness in the core curriculum;
(B) Increase in the amount of time for students to acquire fundamental skills through access to academic and career resources twenty-four hours per day and seven days per week;
(C) Engagement of all students in their own learning process and the documentation of their progression;
(D) Documentation of student mastery and progress through an individual digital student profile system;
(E) Preparation of all students to make informed decisions and set realistic career goals, as reflected in an Individual Student Transition Plan that leads to a positive postsecondary outcome;
(F) Increase of successful career technical education participation, insuring every student has an "informed destination"; and
(G) Connection of students to post-secondary pathways including both community and technical and 4-year colleges;
(6) The process identified by the state board to accomplish the stated goals and objectives includes the following:
(A) Create a functional, digital platform to support the content delivery and documentation of individual student learning. This platform validates the student's acquisition of designated skill sets; provides the student with an individualized portfolio; and provides parents, students and teachers the ability to quickly assess the students position on the learning ladder;
(B) Design and/or procure engaging and relevant middle school career-focused modules that enhance rigorous core courses through a hands-on project-based curriculum, and transform students' core courses to have a career focus and a hands-on project-based curriculum;
(C) Provide students with learning opportunities twenty-four hours per day and seven days per week through equity of access to technology;
(D) Connect with community and technical colleges by:
(i) Developing career technical education and community and technical college concentrations at the secondary level. These concentrations would be designed so that students could graduate with an associate degree along with a high school diploma or a shortened degree granting period;
(ii) Requiring all students to engage in a capstone project in the eighth grade that would gather evidence that the student is prepared to be successful in high school;
(iii) Establishing mentoring relationships with community and technical colleges that would allow community and technical colleges to appoint student and/or faculty members to serve as mentors;
(E) Establish a memorandum of understanding with each county and school to implement all elements of Middle School Global 21 and establish defined supports. This memorandum of understanding would include the provision of adult mentors for students; working with the community to enrich student success such as through tutoring; the inclusion of physical education, health, wellness, the arts and world language in the curriculum; and a positive behavior structure.
(7) The state board is seeking state funding for the implementation of this Middle School Global 21 initiative. This includes funding for the development of a digital platform for all middle schools. Additionally, funding is being sought to pilot schools who sign the memorandum of understanding to implement additional career modules and to be evaluated.
(b) The state board shall report to the Legislative Oversight Commission on Education Accountability once every month that the commission meets on the implementation of this Middle School Global 21 initiative until the initiative is fully implemented.

ARTICLE 2E. HIGH QUALITY EDUCATIONAL PROGRAMS.
§18-2E-8g. Motivating student performance on the WESTEST2; recognizing outstanding students; and making results part of permanent record.

(a) The state board shall establish a program to recognize outstanding students whose scores are in the top ten of all students in the state in each subject area tested under the statewide summative assessment known as the WESTEST2 or any successor tests, in each grade level tested. These students shall receive recognition as being "All State" students in their respective scholastic categories and grade levels. The recognition of students under this program shall be in addition to, but may be integrated with any other state or county board program for recognizing the scholastic abilities of students. The state board shall promulgate a rule in accordance with article three-b, chapter twenty-nine-a of this code for the implementation of this program beginning with the 2011 - 2012 school year.
(b) Beginning with the 2011 - 2012 school year, the scores on the statewide summative assessment known as the WESTEST2 or any successor test shall be made a part of a student's permanent record.
The bill (Eng. Com. Sub. for H. B. No. 3034), as amended, was then ordered to third reading.
Eng. House Bill No. 3075, Increasing the time period in the hold-harmless provision when distributing state aid to local health departments.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3094, Requiring the Secretary of the Department of Health and Human Services to use existing department funds to develop a program to compensate employees for personal property loss.
On second reading, coming up in regular order, was read a second time and ordered to third reading.
Eng. Com. Sub. for House Bill No. 3126, Requiring a railroad company to provide pesticide safety information.
On second reading, coming up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Transportation and Infrastructure, were reported by the Clerk, considered simultaneously, and adopted:
On page five, section sixteen, lines fifty through sixty-nine, by striking out all of subsection (d);
And by relettering the remaining subsections;
And,
On page six, section sixteen, lines seventy-four and seventy- five, by striking out the words "or the Commissioner of Agriculture of the State of West Virginia".
The bill (Eng. Com. Sub. for H. B. No. 3126), as amended, was then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3196, Establishing a program and procedure for certifying medications assistive persons in the health industry.
On second reading, coming up in regular order, was read a second time.
On motion of Senator Wills, the following amendment to the bill was reported by the Clerk and adopted:
By striking out everything after the enacting clause and inserting in lieu thereof the following:
That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §30-7D-1, §30-7D-2, §30-7D-3, §30-7D-4, §30-7D-5, §30-7D-6, §30-7D-7, §30-7D-8, §30-7D- 9, §30-7D-10, §30-7D-11, §30-7D-12 and §30-7D-13, all to read as follows:
ARTICLE 7D. MEDICATION ASSISTIVE PERSONS.
§30-7D-1. Pilot program.
A pilot program is herein developed to monitor the practice of unlicensed personnel administering medication in the nursing home setting. Monitoring of this pilot program shall be conducted by the West Virginia Board of Examiners for Registered Professional Nurses and shall encompass the following:
(1) Signed participation agreements from a minimum of ten nursing homes licensed in West Virginia that meet participation requirements as determined by the board. The pilot program will not progress unless this requirement is met.
(2) After a period of six months of monitoring the implementation of the pilot program, a report shall be provided to the Legislative Commission for Health and Human Resources Accountability.
§30-7D-2. Definitions.
As used in this article:
(1) "Board" means the West Virginia Board of Examiners for Registered Professional Nurses;
(2) "Designated facility" means a type of facility determined by the board as an environment in which medication assistive persons may serve in accordance with the requirements of this article and rules promulgated by the board;
(3) "Medication assistive person" means a person who is certified by the board to administer certain nonprescription and legend drugs in designated facilities;
(4) "Supervision" means the active oversight of patient care services while on the premises of a designated facility in a manner defined by the board; and
(5) "MA-C" is the designation for a person who is certified as a medication assistive person.
§30-7D-3. Certificate required.
In order to safeguard life and health, any person serving or offering to serve as a medication assistive person shall:
(1) Submit evidence that he or she is qualified; and
(2) Be certified as provided in this article.
§30-7D-4. Designated facilities.
(a) The West Virginia Board of Examiners for Registered Professional Nurses shall designate the types of facilities that may use medication assistive persons.
(b) (1) Designated facilities may not be required to use medication assistive persons.
(2) If a designated facility elects to use medication assistive personnel, the facility shall notify the board in a manner prescribed by the board.
§30-7D-5. Qualifications.
(a) In order to be certified as a medication assistive person, an applicant shall submit to the West Virginia Board of Examiners for Registered Professional Nurses an application and appropriate fee. During the pilot program, temporary certificates will be issued. At the completion of the pilot program, if proven successful, qualified individuals holding a temporary certificate as a medication assistive person meeting requirements for full certification shall be issued a permanent certificate. The application shall provide written evidence, verified by oath, that the applicant:
(1) (A) Is currently listed in good standing on the state's certified nurse aide registry;
(B) Has maintained registration on the state's certified nurse aide registry continuously for a minimum of one year;
(C) Has completed at least one continuous year of full-time experience as a certified nurse aide in this state;
(D) Is currently employed at a designated facility;
(E) Has a high school diploma or the equivalent;
(F) Has successfully completed a literacy and reading comprehension screening process approved by the board;
(G) Has completed a state and federal criminal background check in compliance with board requirements;
(H) Has successfully completed a medication assistive person training course of not less than one hundred hours approved by the board; and
(I) Has successfully passed an examination on subjects the board determines; or
(2) (A) Has completed a portion of a nursing education program equivalent to the medication assistive person training course; and
(B) Passed the medication aide examination.
(b) The board may issue a certification as a medication assistive person by endorsement to an applicant who has been licensed or certified as a medication assistive person under the laws of another state or territory if:
(1) In the opinion of the board, the applicant meets the qualifications of medication assistive persons in this state; and
(2) The board recommends certification.
(c) Any person holding a certification as a medication assistive person may use the title "medication aide-certified" and the abbreviation "MA-C".
§30-7D-6. Scope of work.
(a) (1) A medication assistive person may perform the delegated nursing function of medication administration and related tasks in accordance with rules promulgated by the West Virginia Board of Examiners for Registered Professional Nurses.
(2) A medication assistive person shall perform medication administration and related tasks only:
(A) At a designated facility; and
(B) Under the supervision of a registered professional nurse.
(3) (A) Medication administration is limited to the administration of nonprescription and legend drugs ordered by an authorized prescriber and only by the following methods:
(i) Orally;
(ii) Topically;
(iii) Drops for eye, ear or nose;
(iv) Vaginally;
(v) Rectally;
(vi) Transdermally; and
(vii) Via oral inhaler.
(B) Medication administration by a medication assistive person may not include controlled substances.
(b) A medication assistive person may not:
(1) Receive, have access to or administer any controlled substance;
(2) Administer parenteral, enteral, or injectable medications;
(3) Administer any substances by nasogastric, oralgastric or gastrostomy tubes;
(4) Calculate drug dosages;
(5) Destroy medication;
(6) Receive orders either in writing or verbally for new or changed medications;
(7) Transcribe orders from the medical record;
(8) Order initial medications;
(9) Evaluate medication error reports;
(10) Perform treatments;
(11) Conduct patient assessments or evaluations; or
(12) Engage in patient teaching activities.
§30-7D-7. Renewal of certifications.
(a) (1) The West Virginia Board of Examiners for Registered Professional Nurses shall prescribe the procedure for the cyclical renewal of medication assistive person certifications.
(2) In each case, the board shall provide a notification for renewal to the medication assistive person at least thirty days before the expiration date of the certification by United States Postal Service or by electronic means.
(b) (1) Upon receipt of the renewal application and the fee, the board shall verify the accuracy of the application.
(2) (A) If the board finds the application to be accurate and related documents indicate that the applicant remains in good standing, the board shall issue a certificate of renewal to the applicant.
(B) As a condition of certification renewal, a medication assistive person shall be:
(i) Currently listed in good standing on the state's certified nurse aide registry; and
(ii) Required to satisfactorily complete all continuing education required in the legislative rules governing the practice of the MA-C.
(c) The renewal renders the holder of the certificate a legal provider of medication assistive person services for the period stated in the certificate of renewal.
(d) Any medication assistive person who allows his or her certification to lapse by failing to renew the certification as provided in this section may be reinstated by the board on:
(1) Payment of the renewal fee plus a penalty; and
(2) Submission of evidence that the person currently meets the requirements to serve as a medication assistive person.
(e) Any person providing services as a medication assistive person during the time his or her certification has lapsed is considered to be providing services illegally and is subject to the penalties provided for violations of this article.
§30-7D-8. Disciplinary actions.
(a) The West Virginia Board of Examiners for Registered Professional Nurses has sole authority to deny, suspend, revoke or limit any medication assistive person certificate issued by the board or applied for in accordance with the provisions of this article or to otherwise discipline a certificate holder upon proof that the person:
(1) Is or was guilty of fraud or deceit in procuring or attempting to procure a certificate to practice as a medication aide certified;
(2) Has been found guilty of or pled guilty or nolo contendere to a felony, crime of moral turpitude or violation of chapter sixty-one-a of this code;
(3) Is unfit or incompetent by reason of negligence, habits or other causes;
(4) Is habitually intemperate or is addicted to the use of habit-forming drugs;
(5) Is mentally incompetent;
(6) Is guilty of unprofessional conduct;
(7) Is practicing or attempting to practice as a medication aide certified without a certification;
(8) Has had a license, certificate, or registration revoked or suspended;
(9) Has been placed on probation or under disciplinary order in any jurisdiction;
(10) Has voluntarily surrendered a license, certification, or registration and has not been reinstated in any jurisdiction; or
(11) Has willfully or repeatedly violated any of the provisions of this article.
(b) The board shall refuse to issue or shall revoke the certificate of any person who would be disqualified from employment under the provisions of this law or the rules governing the practice of the medication assistive person.
(c) Proceedings under this section shall be conducted in accordance with the West Virginia Administrative Procedure Act, chapter twenty-nine-a of this code.
§30-7D-9. Offenses and penalties.
(a) It shall be a misdemeanor for any person to:

(1) Sell or fraudulently obtain or furnish any medication assistive person's certificate, renewal or record, or aid or abet in any such sale or fraud;
(2) Serve as a medication assistive person under cover of any certificate or record illegally or fraudulently obtained or signed or issued unlawfully or under fraudulent representation;
(3) Serve as a medication assistive person unless certified by the West Virginia Board of Examiners for Registered Professional Nurses;
(4) Use in connection with his or her name any of the following titles, names, or initials if the user is not properly certified under this article:
(A) Medication assistive person;
(B) M.A.P.;
(C) Medication aide;
(D) Medication technician;
(E) Certified medication aide;
(F) C.M.A.;
(G) Medication Aide - certified;
(H) MA-C; or
(I) Any other name, title, or initials that would cause a reasonable person to believe the user is certified under this article;
(5) Serve as a medication assistive person during the time his or her certification is suspended;
(6) Conduct an education program for the preparation of medication assistive persons unless the program has been approved by the board; or
(7) Otherwise violate any provisions of this article.
(b) Any person convicted of any such misdemeanor shall be punished by a fine of not less than $25 nor more than $250.
§30-7D-10. Injunction.
(a) The Kanawha County circuit court is vested with jurisdiction and power to enjoin the unlawful provision of medication assistive person services in any county of the State of West Virginia in a proceeding initiated by the West Virginia Board of Examiners for Registered Professional Nurses, any member of the board, or any citizen in this state.
(b) (1) The issuance of an injunction does not relieve a person from criminal prosecution for violation of the provisions of this article.
(2) The remedy of injunction is in addition to liability for criminal prosecution.
§30-7D-11. Medication Assistive Person Advisory Committee.
(a) (1) The Medication Assistive Person Advisory Committee is created as an advisory committee to the West Virginia Board of Examiners for Registered Professional Nurses.
(2) The committee shall assist the board in implementing the provisions of this article regarding medication assistive persons.
(b) The board shall appoint six members who have the following qualifications:
(1) Two members shall be certified medication assistive persons;
(2) One member shall be a licensed nursing home administrator who has worked in that capacity for at least three years;
(3) One member shall be a registered nurse who has been in a practice using certified nurse aides for at least three years;
(4) One member shall be a lay person representing the interests of consumers of health care services; and
(5) One member shall be a nursing faculty member of a West Virginia nursing education program.
(c) Members shall serve three-year terms.
(d) The board may remove any committee member after notice and hearing for incapacity, incompetence, neglect of duty or malfeasance in office.
(e) The members of the committee shall serve without compensation but may receive expense reimbursement in accordance with applicable law or rule.
§30-7D-12. Applicability of article.
Nothing in this article relieves a nurse from the responsibility of assessing each patient daily and as needed to assure public safety and safe medication administration.
§30-7D-13. Rulemaking authority.
The board may promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of the code.

The bill (Eng. Com. Sub. for H. B. No. 3196), as amended, was
then ordered to third reading.
Eng. Com. Sub. for House Bill No. 3204, Creating the West Virginia Enterprise Resource Planning Board and Executive Committee.
On second reading, coming
up in regular order, was read a second time.
The following amendments to the bill, from the Committee on Government Organization, were reported by the Clerk, considered simultaneously, and adopted:
On page eight, section four, lines thirty-seven and thirty- eight, by striking out all of subdivision (7) and inserting in lieu thereof a new subdivision (7), to read as follows:
(7) A member who represents public employees, who shall be a nonvoting member.;
And,
On page ten, section five, after line thirty-two, by adding a new subsection, designated subsection (e), to read as follows:
(e) Nothing in this section limits the power of the Legislature and its staff under the provisions of chapter four of this code.
The bill (Eng. Com. Sub. for H. B. No. 3204), as amended, was then ordered to third reading.
The end of today's second reading calendar having been reached, the Senate returned to the consideration of
Eng. Com. Sub. for House Bill No. 2555, Establishing the offense of operating a motor vehicle while sending, reading or receiving a text message
.
On third reading, coming up in deferred order, with Senator Browning's amendments to the Judiciary committee amendment to the bill pending (shown in the Senate Journal of today, pages 35 to 51, inclusive) was again reported by the Clerk.
The question being on the adoption of Senator Browning's amendments to the Judiciary committee amendment to the bill, the same was put and prevailed.
The question now being on the adoption of the Judiciary committee amendment to the bill, as amended, the same was put and prevailed.
Having been engrossed, the bill (Eng. Com. Sub. for H. B. No. 2555), as amended, was then read a third time and put upon its passage.
On the passage of the bill, the yeas were: Beach, Browning, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Palumbo, Plymale, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--29.
The nays were: Barnes, Boley, Chafin and Nohe--4.
Absent: Tomblin (Mr. President)--1.

So, a majority of all the members present and voting having voted in the affirmative, the Acting President declared the bill (Eng. Com. Sub. for H. B. No. 2555) passed.
At the request of Senator Palumbo , as chair of the Committee on the Judiciary , and by unanimous consent, the unreported Judiciary committee amendment to the title of the bill was withdrawn.
On motion of Senator Browning, the following amendment to the title of the bill was reported by the Clerk and adopted:
Eng. Com. Sub. for House Bill No. 2555--A Bill to amend and reenact §17B-2-3a of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §17C-14-15; and to amend and reenact §17C-15-49 of said code, all relating to establishing the primary misdemeanor offense of operating a motor vehicle while sending or reading a text message; providing exceptions; providing definitions; providing penalties; making graduated driver's license provisions consistent with new offense; making the offense of failure to wear safety belts a primary offense; and modifying fines.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate proceeded to the tenth order of business.
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Eng. Com. Sub. for House Bill No. 2248, Expanding the list of federal law-enforcement officers who are extended the authority of state and local law-enforcement officers to enforce the laws of this state.
Eng. Com. Sub. for House Bill No. 2451, Relating to victim impact statements.
Eng. Com. Sub. for House Bill No. 2539, Authorizing the West Virginia State Police to enter into agreements for certain forensic services with the Marshall University Forensic Science Center.
Eng. Com. Sub. for House Bill No. 2864, All relating to the creation of a misdemeanor crime of unlawful restraint in the first and second degree.
Eng. Com. Sub. for House Bill No. 2888, Strengthening of protections for whistleblowers of unsafe working conditions in mines.
Eng. House Bill No. 2918, Relating to permanent business registrations.
Eng. Com. Sub. for House Bill No. 2953, Relating to dedication of coalbed methane severance tax proceeds.
Eng. House Bill No. 2993, Relating to the West Virginia Commercial Patents Incentives Tax Act.
Eng. Com. Sub. for House Bill No. 3054, Relating to DNA data collection.
Eng. Com. Sub. for House Bill No. 3105, Providing immunity from civil or criminal liability for first responders who use forced entry to a residence.
Eng. House Bill No. 3119, Increasing the expenditure limit on public service district construction and purchase contracts.
Eng. House Bill No. 3134, Relating to child support enforcement.
Eng. House Bill No. 3137, Providing for additional circumstances giving rise to "state 'on' indicators" for purposes of extended unemployment compensation.
And,
Eng. Com. Sub. for House Bill No. 3163, Relating to workers' compensation programs of state government entities.
Pending announcement of meetings of standing committees of the Senate,
On motion of Senator Unger, the Senate recessed until 6 p.m. today.
Upon expiration of the recess, the Senate reconvened and, without objection, returned to the third order of business.
Executive Communications

Senator Kessler (Acting President) laid before the Senate the following communication from His Excellency, the Governor, which was read by the Clerk:
STATE OF WEST VIRGINIA

OFFICE OF THE GOVERNOR

CHARLESTON

March 8, 2011

The Honorable Jeffrey V. Kessler
Acting President, West Virginia Senate
State Capitol
Charleston, West Virginia
Dear Acting President Kessler:
Pursuant to the provisions of section fourteen, article VII of the Constitution of West Virginia, I hereby disapprove and return Enrolled Committee Substitute for Senate Bill No. 458.
I must object to this Bill because its object is not adequately expressed in the title. The Bill would alter the certification and certification renewal process for timbering operation supervisors; however, the title incorrectly states the length of the renewal certification.
Unfortunately, because the Bill's proposed title does not adequately reflect the amendments it purports to make to the West Virginia Code, a reasonable person would not be able to discern the amendments without reading the entire text of the Bill. For this reason, I must veto Enrolled Committee Substitute for Senate Bill No. 458.
Additionally, while not technically deficient, the title also indicates that certification fees will be increased in the Bill. The Bill, however, does not increase certification fees as suggested by the title.
Very truly yours,
Earl Ray Tomblin,
Governor.
Senator Unger moved that in accordance with Section 14, Article VII of the Constitution of the State of West Virginia, the Senate proceeded to reconsider
Enr. Com. Sub. for Senate Bill No. 458, Updating Logging Sediment Control Act.
Heretofore disapproved and returned by His Excellency, the Governor, with his objections.
The question being on the adoption of Senator Unger's motion that the Senate reconsider Enrolled Committee Substitute for Senate Bill No. 458, the same was put and prevailed.
On motion of Senator Laird, the following amendments to the bill were reported by the Clerk, considered simultaneously, and adopted:
On page six, section seven, line nine, after the word "operation." by inserting the following: The certified logger shall attend a training program every four years after certification.;
On page seven, section seven, lines thirty-three through thirty-seven, by striking out all of subsection (f) and inserting in lieu thereof a new subsection (f), to read as follows:
(f) The certified logger shall submit a fee of $150 for the initial certification application and the renewal application every two years thereafter.;
And,
Enr. Com. Sub. for Senate Bill No. 458--An Act to amend and reenact §19-1B-3, §19-1B-4, §19-1B-5, §19-1B-7, §19-1B-11 and §19- 1B-12a of the Code of West Virginia, 1931, as amended, all relating to updating the Logging Sediment Control Act; increasing licensure and certification fees; requiring the Division of Forestry to report certain information to the Tax Commissioner on a monthly basis; requiring the Director of the Division of Forestry to notify the Director of the Division of Water and Waste Management of the Department of Environmental Protection of licensure suspension or revocation within thirty days; modifying licensure and certification renewal and application procedures; revising certification training requirements; permitting the director the discretion to immediately suspend a timbering operator or operation, or any part of a timbering operation, in any part of the state; and requiring the Director of the Division of Forestry to convene a committee to review best management practices every five years.
The question now being on the passage of the bill, disapproved by the Governor and amended by the Senate.
On the
passage of the bill, the yeas were: Beach, Boley, Browning, Chafin, Edgell, D. Facemire, K. Facemyer, Fanning, Foster, Green, Hall, Helmick, Jenkins, Klempa, Laird, McCabe, Miller, Minard, Nohe, Palumbo, Prezioso, Snyder, Stollings, Sypolt, Tucker, Unger, Wells, Williams, Wills, Yost and Kessler (Acting President)--31.
The nays were: None.
Absent: Barnes, Plymale and Tomblin (Mr. President)--3.

So, a majority of all the members elected to the Senate having voted in the affirmative, the President declared the bill (Enr. Com. Sub. for S. B. No. 458) passed with its title, as amended, as a result of the objections of the Governor.
Ordered, That The Clerk communicate to the House of Delegates the action of the Senate and request concurrence therein.
The Senate again proceeded to the fourth order of business.
Senator Miller, 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 ninth day of March, 2011, presented to His Excellency, the Governor, for his action, the following bill, signed by the Acting President of the Senate and the Speaker of the House of Delegates:
(H. B. No. 2708), Removing a twelve-month limitation for certain agreements between or among law-enforcement agencies.
Respectfully submitted,
Ron Miller,
Chair, Senate Committee.
Meshea Poore,
Chair, House Committee.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Senate Bill No. 70, Budget Bill.
And reports back a committee substitute for same with the following title:
Com. Sub. for Senate Bill No. 70 (originating in the Committee on Finance)--A Bill
making appropriations of public money out of the Treasury in accordance with section fifty-one, article VI of the Constitution.
With the recommendation that the committee substitute do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Beach, from the Committee on Transportation and Infrastructure, submitted the following report, which was received:
Your Committee on Transportation and Infrastructure has had under consideration
Senate Concurrent Resolution No. 55, Requesting DOH name State Route 35 from mouth of Sweetwater Branch to Gourd Branch, in Wayne County, "Perry Brothers Memorial Highway".
And,
Senate Concurrent Resolution No. 56, Requesting DOH name State Route 35 from State Route 152 at Missouri Branch to Tank Hollow, in Wayne County, "Crum Brothers Memorial Highway".
And reports the same back with the recommendation that they each be adopted.
Respectfully submitted,
Robert D. Beach,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2013, Requiring the West Virginia Enhanced 911 Council to propose Emergency Medical Dispatch procedures.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 3, 2011;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2075, Relating to acquisition of a municipal business license.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Prezioso, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Government Organization.
At the request of Senator Snyder, and by unanimous consent, the bill (Eng. Com. Sub. for H. B. No. 2075) was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2362, Increasing penalties for financial exploitation of an elderly person or incapacitated adult.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2362) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 2368, Relating to the practice of beauty care.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2368) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Green, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under consideration
Eng. Com. Sub. for House Bill No. 2437, Requiring study relating to mandating the utilization of devices that case underground mining machines to shut-off when methane is detected.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on the Judiciary.
Respectfully submitted,
Mike Green,
Chair.
At the request of Senator Palumbo, as chair of the Committee on the Judiciary, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on Energy, Industry and Mining.
At the request of Senator Green, and by unanimous consent, the bill (Eng. Com. Sub. for H. B. No. 2437) was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2505, Adding synthetic cannabinoids and hallucinogens and stimulants to the Schedule I list of controlled substances (K2).
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2505) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2517, Allowing Correctional Industries to directly purchase workers' compensation coverage for inmates.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 3, 2011;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 2521, Eliminating the requirement of serving domestic violence orders by certified mail.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. H. B. No. 2521) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2542, Clarifying requirements and procedures for access to cemeteries and grave sites located on private land.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2542) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 2639, Authorizing miscellaneous boards and agencies to promulgate legislative rules.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2639) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2695, Relating to the educational broadcasting authority.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Finance on March 3, 2011;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. House Bill No. 2763, Prohibiting the Executive Director of Workforce West Virginia from billing a reimbursable employer under the unemployment compensation law for overpaid amounts of benefits paid to a claimant.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
At the request of Senator Prezioso, unanimous consent being granted, the bill (Eng. H. B. No. 2763) contained in the preceding report from the Committee on Finance was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Green, from the Committee on Energy, Industry and Mining, submitted the following report, which was received:
Your Committee on Energy, Industry and Mining has had under consideration
Eng. Com. Sub. for House Bill No. 2955, Authorizing the Division of Mining and Reclamation to assess certain fees to coal mine operators.
And reports the same back with the recommendation that it do pass; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Mike Green,
Chair.
At the request of Senator Green, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 2955) contained in the preceding report from the Committee on Energy, Industry and Mining was taken up for immediate consideration, read a first time, ordered to second reading and, under the original double committee reference, was then referred to the Committee on Finance.
Senator Prezioso, from the Committee on Finance, submitted the following report, which was received:
Your Committee on Finance has had under consideration
Eng. Com. Sub. for House Bill No. 2981, Clarifying payment for trade certifications and allowing use of tuition assistance for West Virginia National Guard members enrolled in a doctor of medicine or osteopathic medicine program.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Roman W. Prezioso, Jr.,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. House Bill No. 3000, Making it lawful to hunt coyotes with a green colored light.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 7, 2011;
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Corey Palumbo,
Chair.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 3004, Relating to the Greater Huntington Park and Recreation District.
And reports the same back with the recommendation that it do pass.
Respectfully submitted,
Herb Snyder,
Chair.
At the request of Senator Snyder, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3004) contained in the preceding report from the Committee on Government Organization was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Snyder, from the Committee on Government Organization, submitted the following report, which was received:
Your Committee on Government Organization has had under consideration
Eng. Com. Sub. for House Bill No. 3028, Expanding the responsibilities of the Maternal Mortality Review Team.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on Government Organizaiton on March 4, 2011;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Herb Snyder,
Chair.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3185, Allowing county commissions to waive or reduce impact fees and capital improvement fees of affordable housing units in their county.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended; but under the original double committee reference first be referred to the Committee on Finance.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Prezioso, as chair of the Committee on Finance, unanimous consent was granted to dispense with the second committee reference of the bill contained in the foregoing report from the Committee on the Judiciary.
At the request of Senator Palumbo, and by unanimous consent, the bill (Eng. Com. Sub. for H. B. No. 3185) was taken up for immediate consideration, read a first time and ordered to second reading.
Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3202, Relating to residential rental security deposits.
And has amended same.
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
At the request of Senator Palumbo, unanimous consent being granted, the bill (Eng. Com. Sub. for H. B. No. 3202) contained in the preceding report from the Committee on the Judiciary was taken up for immediate consideration, read a first time and ordered to second reading.

Senator Palumbo, from the Committee on the Judiciary, submitted the following report, which was received:
Your Committee on the Judiciary has had under consideration
Eng. Com. Sub. for House Bill No. 3225, Expanding the definition of harassment, intimidation or bullying.
And has amended same.
Now on second reading, having been read a first time and referred to the Committee on the Judiciary on March 8, 2011;
And reports the same back with the recommendation that it do pass, as amended.
Respectfully submitted,
Corey Palumbo,
Chair.
On motion of Senator Unger, a leave of absence for the day was granted Senator Tomblin (Mr. President).
Pending announcement of meetings of standing committees of the Senate, including the Committee on Rules,
On motion of Senator Unger, the Senate recessed until tomorrow, Thursday, March 10, 2011, at 11 a.m.
________



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