COMMITTEE SUBSTITUTE
FOR
H. B. 2669

( By Delegates Mahan, Palumbo,
Cann, Pino, Armstead and Overington )
(Originating in the Committee on the Judiciary)

[March 25, 2005]

A

BILL to amend and reenact article 9, chapter 64 of the code of West Virginia, 1931, as amended; all relating generally to the promulgation of administrative rules by the various executive or administrative agencies and the procedures relating thereto; legislative mandate or authorization for the promulgation of certain legislative rules by various executive or administrative agencies of the state; authorizing certain of the agencies to promulgate certain legislative rules in the form that the rules were filed in the state register; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee; authorizing certain of the agencies to promulgate certain legislative rules as amended by the legislature; authorizing certain of the agencies to promulgate certain legislative rules with various modifications presented to and recommended by the legislative rule-making review committee and as amended by the legislature; authorizing the Board of Acupuncture to promulgate a legislative rule relating to the dispensing of materia medica, formulary and legend drugs ; authorizing the Department of Agriculture to promulgate a legislative rule relating to animal disease control ; authorizing the Department of Agriculture to promulgate a legislative rule relating to the inspection of meat and poultry ; authorizing the Department of Agriculture to promulgate a legislative rule relating to commercial feed ; authorizing the Board of Chiropractic Examiners to promulgate a legislative rule relating to the chiropractic practice ; authorizing the Contractor Licensing Board to promulgate a legislative rule relating to the West Virginia contractor licensing act ; relating to authorizing the Board of Dental Examiners to promulgate a legislative rule relating to the Board ; authorizing the Board of Dental Examiners to promulgate a legislative rule relating to the formation and approval of professional limited liability companies ; authorizing the Board of Dental Examiners to promulgate a legislative rule relating to fees ; authorizing the Board of Dental Examiners to promulgate a legislative rule relating to the formation and approval of dental corporations ; authorizing the Family Protection Services Board to promulgate a legislative rule relating to perpetrator intervention programs licensure for correctional institutions ; authorizing the Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to law enforcement training standards ; authorizing the Governor's Committee on Crime, Delinquency and Correction to promulgate a legislative rule relating to the protocol for law enforcement response to domestic violence ; authorizing the Hatfield-McCoy Regional Recreation Authority to promulgate a legislative rule relating to use of facilities ; authorizing the Division of Information Services and Communications to promulgate a legislative rule relating to telecommunications payments by spending units ; authorizing the Board of Examiners of Land Surveyors to promulgate a legislative rule relating to minimum standards for the practice of land surveying in West Virginia ; authorizing the Board of Examiners for Licensed Practical Nurses to promulgate a legislative rule relating to fees for services rendered by the Board ; authorizing the Public Service Commission to promulgate a legislative rule relating to statewide telephone information and referral 211 service; authorizing the Radiologic Technology Board of Examiners to promulgate a legislative rule relating to the Board ; authorizing the Board of Examiners for Registered Professional Nurses to promulgate a legislative rule relating to fees for services rendered by the Board ; authorizing the Secretary of State to promulgate a legislative rule relating to agencies designated to provide voter registration services ; authorizing the Board of Examiners for Speech-Language Pathology and Audiology to promulgate a legislative rule relating to speech- language pathology and audiology assistants ; authorizing the State Treasurer to promulgate a legislative rule relating to procedures for fees in collections by charge, credit or debit card or by electronic payment ; authorizing the Board of Veterinary Medicine to promulgate a legislative rule relating to organization and operation ; authorizing the Board of Veterinary Medicine to promulgate a legislative rule relating to certified animal euthanasia technicians ; and authorizing the Board of Veterinary Medicine to promulgate a legislative rule relating to a schedule of fees.

Be it enacted by the Legislature of West Virginia:
That article 9, chapter 64 of the code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:

ARTICLE 9. AUTHORIZATION FOR MISCELLANEOUS AGENCIES AND BOARDS TO PROMULGATE LEGISLATIVE RULES.

§64-9-1. Board of Acupuncture.
The legislative rule filed in the state register on the second day of September, two thousand three, under the authority of section seven, article thirty-six, chapter thirty, of this code, modified by the Board of Acupuncture to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourteenth day of October, two thousand four, relating to the Board of Acupuncture (dispensing of materia medica, formulary and legend drugs, 32 CSR 2), is disapproved and not authorized.
§64-9-2. Department of Agriculture.
(a) The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section two, article nine, chapter nineteen, of this code, modified by the Department of Agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on the nineteenth day of November, two thousand four, relating to the Department of Agriculture (animal disease control, 61 CSR 1), is authorized, with the following amendments:
On page twelve, paragraph 6.19.b.C., after the words 'pullorum/typhoid' by changing the period to a semicolon and inserting the word 'and';
and
On page twelve, paragraph 6.19.b.D. by striking out the entire paragraph and inserting in lieu thereof the following: 'a United States Department of Agriculture Form 9-3 stating that a minimum of 20 birds per flock or the entire flock of 20 birds or less had a negative test for avian influenza within 10 days prior to import. The test shall be a NPIP approved procedure.'
(b) The legislative rule filed in the state register on the fourth day of August, two thousand four, under the authority of section three, article two-b, chapter nineteen, of this code, relating to the Department of Agriculture (inspection of meat and poultry, 61 CSR 16), is authorized.
(c) The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section three, article fourteen, chapter nineteen, of this code, modified by the Department of Agriculture to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fourth day of November, two thousand four, relating to the Department of Agriculture (commercial feed, 61 CSR 5), is authorized.
§64-9-3. Board of Chiropractic Examiners.
The legislative rule filed in the state register on the twenty-sixth day of August, two thousand four, under the authority of section five, article sixteen, chapter thirty, of this code, modified by the Board of Chiropractic Examiners to meet the objections of the legislative rule-making review committee and refiled in the state register on the first day of February, two thousand five, relating to the Board of Chiropractic Examiners (chiropractic practice, 4 CSR 1), is authorized, with the following amendments:
On page two, paragraph 3.1.d.1, after the word "subdivision", by striking the reference "3.1.c.2" and inserting in lieu thereof the reference "3.1.d.3";
On page two, paragraph 3.1.d.3, subparagraph 2, after the words "set forth in", by striking the code reference "W.Va. Code §30-16-6(a)(5)" and inserting in lieu thereof the code reference "W.Va. Code §30-16-6(b)(5)";
On page seven, subsection 11.2, after the words "The Board", by striking the word "my" and inserting in lieu thereof the word "may"; and
On page eight, subsection 13.1, after the word "traction" by striking the comma and the word "massage".
§64-9-4. Contractor Licensing Board.
The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section five, article eleven, chapter twenty-one, of this code, modified by the Contractor Licensing Board to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fifth day of January, two thousand five, relating to the Contractor Licensing Board (West Virginia contractor licensing act, 28 CSR 2), is authorized, with the following amendments:
On page two, subdivision 3.9.a, after the word "five" by inserting the word "hundred";
On page seven, subdivision 3.30., after the word "repair." by inserting the words "A residential contractor is considered licensed for all crafts required in the construction, repair or improvement of a residential structure as defined in subsection 3.33 of this rule. However, the residential contractor licensure necessitates all other licensure requirements of state law and local ordinance, such as the electrician's license as required by the Office of the State Fire Marshal under the provisions of W.Va. Code §29-3b.";
On page fifteen, subdivision 8.1, after the word "person." by striking out the word "The" and inserting in lieu thereof the words "After an administrative hearing, as provided for in Section 9 of this rule, the";
On page fifteen, subdivision 8.1, after the word "license." by striking out the remainder of the subdivision;
and
On page fifteen, after subdivision 8.3, by inserting a new subdivision, designated subdivision 8.4, to read as follows: "The Board shall, in accordance with Section 9 of this rule, provide for an administrative hearing before a penalty is assessed."
§64-9-5. Board of Dental Examiners.
(a) The legislative rule filed in the state register on the twenty-fifth day of August, two thousand four, under the authority of section six, article four, chapter three, of this code, modified by the Board of Dental Examiners to meet the objections of the legislative rule-making review committee and refiled in the state register on the fifteenth day of February, two thousand five, relating to the Board of Dental Examiners (rule for the board of dental examiners, 5 CSR 1), is authorized.
(b) The legislative rule filed in the state register on the twenty-fifth day of August, two thousand four, under the authority of section thirteen hundred four, article thirteen, chapter thirty- one-b, of this code, modified by the Board of Dental Examiners to meet the objections of the legislative rule-making review committee and refiled in the state register on the fifteenth day of February, two thousand five, relating to the Board of Dental Examiners (formation and approval of professional limited liability companies, 5 CSR 2), is authorized.
(c) The legislative rule filed in the state register on the twenty-fifth day of August, two thousand four, under the authority of section six, article four, chapter thirty, of this code, modified by the Board of Dental Examiners to meet the objections of the legislative rule-making review committee and refiled in the state register on the fifteenth day of February, two thousand five, relating to the Board of Dental Examiners (formation and approval of dental corporations, 5 CSR 6), is authorized.
§64-9-6. Family Protection Services Board.
The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section four hundred four, article twenty-six, chapter forty-eight, of this code, modified by the Family Protection Services Board to meet the objections of the legislative rule- making review committee and refiled in the state register on the eighteenth day of February, two thousand five, relating to the Family Protection Services Board (perpetrator intervention programs licensure for correctional institutions, 191 CSR 5), is authorized, with the following amendments:
On page eight, section four, subsection 6., by striking out the word "shall", and inserting in lieu thereof the word "may" and after the word "subdivision" by striking out the letter "d" and inserting in lieu thereof the letter "c".

§64-9-7. Governor's Committee on Crime, Delinquency and Correction.

(a) The legislative rule filed in the state register on the fifteenth day of June, two thousand four, under the authority of section three, article twenty-nine, chapter thirty, of this code, modified by the Governor's Committee on Crime, Delinquency and Correction to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty- sixth day of July, two thousand four, relating to the Governor's Committee on Crime, Delinquency and Correction (law enforcement training standards, 149 CSR 2), is authorized .
(b) The legislative rule filed in the state register on the ninth day of August, two thousand four, under the authority of section one thousand one hundred two, article twenty-seven, chapter forty-eight, of this code, relating to the Governor's Committee on Crime, Delinquency and Correction (protocol for law enforcement response to domestic violence, 149 CSR 3), is authorized.
(c) The legislative emergency rule filed in the state register on the twenty-third day of November, two thousand four, under the authority of section three, article two, chapter seventeen-G, of this code, relating to the Governor's Committee on Crime, Delinquency and Correction (motor vehicle stop data collection standards for the study of racial profiling, 149 CSR 5), is disapproved and not authorized.
§64-9-8. Hatfield-McCoy Regional Recreation Authority.
The legislative rule filed in the state register on the eighth day of April, two thousand four, under the authority of section one, article fourteen, chapter twenty, of this code, modified by the Hatfield-McCoy Regional Recreation Authority to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-fifth of January, two thousand five, relating to the Hatfield-McCoy Regional Recreation Authority (use of facilities, 204 CSR 1), is authorized, with the following amendments:
On page four, section three, subsection five, at the end of the subsection, by adding a new subdivision, designated subdivision a, containing paragraphs 1 and 2 and subparagraphs A, B, C and D, all to read as follows:
"a. No all-terrain vehicle may be operated in this state:
1. On any road or highway with a center line or more than two lanes except for the purpose of crossing the road, street or highway, if:
A. The crossing is made at an angle of approximately ninety degrees to the direction of the highway and at a place where no obstruction prevents a quick and safe crossing;
B. The vehicle is brought to a complete stop before crossing the shoulder or main traveled way of the highway;
C. The operator yields his or her right-of-way to all oncoming traffic that constitutes an immediate potential hazard; and
D. Both the headlight and taillight are illuminated when the crossing is made if the vehicle is so equipped.";
On page six, section four, subsection three, at the end of the subsection, by adding a new sentence to read as follows:
"No all-terrain vehicle may be operated with a passenger under the age of eighteen, unless the operator has at a minimum a level two intermediate driver's license or its equivalent or is eighteen years of age or older.";
On page seven, section four, after subsection eleven, by adding thereto a new subsection, designated subsection twelve, to read as follows:
"4.12. No person under the age of eighteen may operate an ATV without the signature of his or her parent or guardian certifying that:
a. Any machine operated by the minor will be of a model that is recommended by the manufacturer as appropriate to the minor's age and size;
b. All rules governing the use of the Area have been reviewed by the parent or guardian and explained to the minor in sufficient detail to enable the minor to abide by the rules; and
c. Any minor under the age of 16 will remain under the supervision of and within the sight of the parent or guardian at all times.";
and
On page seven, section five, subsection two, after the words "When operated from", by striking the words "one-half hour after sunset to one-half hour before sunrise", and inserting in lieu thereof the words "sunset to sunrise".
§64-9-9. Department of Information Services and Communications.
The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, under the authority of section four-a, article seven, chapter five-a, of this code, modified by the Division of Information Services and Communications to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirteenth day of January, two thousand five, relating to the Division of Information Services and Communications (telecommunications payments by spending units, 161 CSR 2), is authorized, with the following amendments:
On page two, section two, line 20, following the words "in §5A-7-4a" by striking "(l)" and inserting in lieu thereof "(k)";
On page two, section two, line 22, by striking all of subsection (l) and inserting in lieu thereof the following:
"(l.) 'Spending Unit' means a department, agency or institution of the state government for which an appropriation is requested, or to which an appropriation is made by the Legislature: Provided, That spending unit does not include the Legislature or the judiciary.";
On page three, section three, line 1, following the words "applies to" by striking the remainder of the section and inserting in lieu thereof the following:
"all spending units that have their telecommunications services billed on the state's shared account.";
On page three, section four, line 12, by striking the words "to ensure the legitimacy of the charges.";
On page three, section four, line 23, by striking all of subdivision (g.) and relettering the remaining subdivision;
On page three, section five, line 27, by striking the words "IS&C will insure all of its duties and rights are executed as defined below after the first billing period. This allows IS&C to implement the new policies and allow for transition by all parties (vendors, spending units, etc.)";
On page three, section five, line 32, by striking all of subdivisions 5.1.2. and 5.1.3. and renumbering the remaining subdivision;
On page four, section five, line 9, following the word "Charges" by striking the words "not rejected during this preliminary review by IS&C";
On page five, section six, line 13, by striking the following words "Any spending unit that is utilizing the services and pricing of a telecommunications provider via a state-issued contract must agree to have its charges included in the shared account and all requests for telecommunications services must be obtained by submitting to IS&C a Telecommunications Change Request form for approval.";
On page eight, section eight, line 3, following the word "units" by striking the words "via a state-issued contract" and inserting in lieu thereof the words "via a shared account";
On page eight, section eight, line 7, by striking all of subsection 8.1;
On page eight, section eight, line 17, by striking the words "8.2 Invoices submitted for payment.
8.2.1 Vendors are required to submit all invoices to IS&C that include more than one spending unit. If vendors are providing services to spending units governed by the pricing included in the applicable state-issued contract then the charges for these services must be included on the shared account.";
and
On page eight, section eight, line 22, by striking out the number "8.2.2.".
§64-9-10. Board of Examiners of Land Surveyors.
The legislative rule filed in the state register on the seventeenth day of May, two thousand four, under the authority of section four, article thirteen-a, chapter thirty, of this code, modified by the Board of Examiners of Land Surveyors to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourth day of February, two thousand five, relating to the Board of Examiners of Land Surveyors (minimum standards for the practice of land surveying in West Virginia, 23 CSR 1), is authorized, with the following amendments:
On page four, subdivision 5.3.1, by striking out the words "at least 62 years of age,";
and
On page four, subdivision 5.3.2, by striking out the words "for up to a one-year period ending June 30".
§64-9-11. Board of Examiners of Licensed Practical Nurses.
The legislative rule filed in the state register on the eighteenth day of August, two thousand four, under the authority of section seven-a, article seven-a, chapter thirty, of this code, relating to the Board of Examiners of Licensed Practical Nurses (fees for services rendered by the Board, 10 CSR 4), is authorized.
§64-9-12. Public Service Commission.
The legislative rule filed in the state register on the fourth day of March, two thousand four, under the authority of section two, article eight, chapter twenty-four, of this code, modified by the Public Service Commission to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-first day of January, two thousand five, relating to the Public Service Commission (statewide telephone information and referral 211 service, 150 CSR 29), is authorized .
§64-9-13. Radiologic Technology Board of Examiners.
The legislative rule filed in the state register on the tenth day of June, two thousand four, under the authority of section five, article twenty-three, chapter thirty, of this code, modified by the Radiologic Technology Board of Examiners to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-sixth day of July, two thousand four, relating to the Radiologic Technology Board of Examiners (Board rule, 18 CSR 1), is authorized.
§64-9-14. Board of Examiners for Registered Professional Nurses.
The legislative rule filed in the state register on the seventeenth day of August, two thousand four, under the authority of section eight-a, article seven, chapter thirty, of this code, modified by the Board of Examiners for Registered Professional Nurses to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-ninth day of September, two thousand four, relating to the Board of Examiners for Registered Professional Nurses (fees for services rendered by the Board, 19 CSR 12), is authorized.
§64-9-15. Secretary of State.
The legislative rule filed in the state register on the twenty-seventh day of August, two thousand four, authorized under the authority of section thirteen, article two, chapter three, of this code, relating to the Secretary of State (agencies designated to provide voter registration services, 153 CSR 28), is authorized.

§64-9-16. Board of Examiners for Speech-Language Pathology and Audiology.

The legislative rule filed in the state register on the ninth day of August, two thousand four, under the authority of section ten, article thirty-two, chapter thirty, of this code, modified by the Board of Examiners for Speech-Language Pathology and Audiology to meet the objections of the legislative rule-making review committee and refiled in the state register on the thirteenth day of December, two thousand four, relating to the Board of Examiners for Speech-Language Pathology and Audiology (speech-language pathology and audiology assistants, 29 CSR 2), is authorized.
§64-9-17. State Treasurer.
The legislative rule filed in the state register on the eighteenth day of August, two thousand four, under the authority of section six, article three-a, chapter twelve, of this code, modified by the State Treasurer to meet the objections of the legislative rule-making review committee and refiled in the state register on the seventh day of February, two thousand five, relating to the State Treasurer (procedures for fees in collections by charge, credit or debit card or by electronic payment, 112 CSR 12), is authorized.
§64-9-18. Board of Veterinary Medicine.
(a) The legislative rule filed in the state register on the eleventh day of August, two thousand three, under the authority of section four, article ten, chapter thirty, of this code, modified by the Board of Veterinary Medicine to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourteenth day of June, two thousand four, relating to the Board of Veterinary Medicine (organization and operation, 26 CSR 1), is authorized, with the following amendments:
On page four, section four, subsection seven, after the words "not qualified to take the examination, the" by striking out the word "Board" and inserting in lieu thereof the words "Secretary Treasurer";
On page four, section four, subsection seven, after the words "The Board shall refund", by striking out the words "fifty percent of the";
On page four, section five, subsection four, after the word "The" at the beginning of the subsection, by striking out the word "Board" and inserting in lieu thereof the words "Secretary Treasurer";
and
On page six, section seven, subsection one, after the words "On or", by striking out the word "about" and inserting in lieu thereof the word "before" .
(b) The legislative rule filed in the state register on the eleventh day of August, two thousand four, under the authority of section nine, article ten, chapter thirty, of this code, modified by the Board of Veterinary Medicine to meet the objections of the legislative rule-making review committee and refiled in the state register on the fourteenth day of June, two thousand four, relating to the Board of Veterinary Medicine (certified animal euthanasia technicians, 26 CSR 5), is authorized.
(c) The legislative rule filed in the state register on the ninth day of August, two thousand four, under the authority of section four, article ten, chapter thirty, of this code, modified by the Board of Veterinary Medicine to meet the objections of the legislative rule-making review committee and refiled in the state register on the twenty-first day of January, two thousand five, relating to the Board of Veterinary Medicine (schedule of fees, 26 CSR 6), is authorized, with the following amendments:
On page one, by striking out all of subsections 2.1 through 2.8, and inserting in lieu thereof the following:
"2.1 Veterinarian application fee$5.00
2.2 Veterinarian examination and license fee$295.00
2.3 Duplicate license$15.00
2.4 Annual renewal fee$225.00
2.5 Temporary permit$100.00
2.6 Temporary permit renewal fee$25.00
2.7 Written confirmation of licensure, registration or
certification by West Virginia$25.00
2.8 North American Veterinary License Exam (NAVLE)
eligibility processing fee$50.00".