__________*__________




Saturday, March 8, 2008

SIXTIETH DAY

[Mr. Speaker, Mr. Thompson, in the Chair]



The House of Delegates met at 11:00 a.m., and was called to order by the Honorable Richard Thompson, Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Friday, March 7, 2008, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Committee Reports

Chairman Doyle, 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 5th day of March, 2008, presented to His Excellency, the Governor, for his action, the following bills, signed by the President of the Senate and the Speaker of the House of Delegates:
(H. B. 2503), Authorizing the Division of Motor Vehicles to issue an identification card to West Virginia residents who already possess a valid driver's license,
(Com. Sub. for H. B. 4418), Establishing a statewide reporting system for hospitals to report their infection rates,
(H. B. 4478), Limiting the mid-year transfer of certain school employees working with students with exceptionalities,
(H. B. 4676), Continuing the permissible appropriation of Public Employees Insurance Reserve Fund moneys to the bureau for medical services,
(H. B. 4677), Reducing the requirement that the Director of Personnel must have five years experience in personnel management,
(H. B. 4712), Supplementary appropriation to the Department of Transportation-Division of Motor Vehicles,
(H. B. 4713), Expiring funds to the balance of the Department of Health and Human Resources, Health Care Authority,
(H. B. 4714), Supplementary appropriation to the Department of Commerce, Department of Education and the Arts-Division of Rehabilitation Services, Department of Military Affairs and Public Safety-Fire Marshal,
(Com. Sub. for S. B. 145), Relating to reasonable force in defense of self, real and personal property.
(Com. Sub. for S. B. 579), Appointing additional nonresident members to Bluefield's sanitary board,
And,
(Com. Sub. for S. B. 704), Regulating viatical life insurance settlements.
Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 110, Requesting the Joint Committee on Government and Finance to study mitigation practices and resources in wetland areas,
H. C. R. 112, Calling for an economic stimulus rebate to resident personal income tax filers,
S. C. R. 58, Requesting Division of Highways name bridge near Eleanor, Putnam County, "Memorial Bridge",
And,
S. C. R. 76, Requesting Division of Highways place sign at Fayetteville, Fayette County, "Coolest Small Town",
And reports the same back with the recommendation that they each be adopted.
Messages from the Executive

Mr. Speaker, Mr. Thompson, laid before the House a communication from His Excellency, the Governor, which was read by the Clerk as follows:
State of West Virginia

OFFICE OF THE GOVERNOR

Charleston


March 7, 2008


EXECUTIVE MESSAGE NO. 3

The Honorable Richard Thompson
Speaker, West Virginia House of Delegates
State Capitol
Charleston, West Virginia 25305

Dear Mr. Speaker:

As empowered by Section aa, Article VII of the Constitution of West Virginia and section sixteen, article one, chapter five of the Code of West Virginia, I extended clemency to the persons named on the attached report. I submit this report in accordance with the above-cited provisions for the period March 10, 2007 through March 7, 2008.

Very truly yours,

Joe Manchin III Governor.


PARDONS AND MEDICAL RESPITES GRANTED

BY GOVERNOR JOE MANCHIN III

FOR THE PERIOD MARCH 10, 2007 THROUGH MARCH 7, 2008


Bowers, Charles Roderick, Jr.

Decided November 15, 2007


In 1960, Mr. Bowers pleaded guilty to one count of Grand Larceny. On December 7, 1960, he was sentenced by the Circuit Court of Kanawha County to a term of one to ten years of imprisonment. In July of 1962, Mr. Bowers was granted parole and successfully completed his term of parole in July of 1963. Since that time, Mr. Bowers has maintained himself as a responsible, law- abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Bowers be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Charles Roderick, Bowers, Jr. for the offense of Grand Larceny.
Jarvis, Robert Mark

Decided November 15, 2007

In 1970, Mr. Jarvis pleaded guilty to one count of Possession of Marijuana. On December 28, 1970, he was sentenced by the Circuit Court of Fayette County to a term of two to five years of imprisonment, which sentence was reduced on May 10, 1971 to a two-year term of probation. Mr. Jarvis successfully completed his term of probation on May 10, 1973. Since that time, Mr. Jarvis has maintained himself as a responsible, law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Jarvis be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Robert Mark Jarvis for the offense of Possession of Marijuana.
Kallai, George Lucien III

Decided November 15, 2007

In 1991, Mr. Kallai pleaded guilty to one county of Petit Larceny. On June 3, 1991, he was sentenced by the Magistrate Court of Nicholas County to pay a fine. Mr. Kallai successfully fulfilled all requirements placed upon him by the court. Since that time, Mr. Kallai has maintained himself as a responsible, law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his history and record, unanimously recommended that Mr. Kallai be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to George Lucien Kallai for the offense of Possession of Marijuana.
Kyle, Roger Lee

Decided November 15, 2007

In 1968, Mr. Kyle pleaded guilty to one count of Grant Larceny. On February 29, 1968, he was sentenced by the Circuit Court of Monongalia County to a term of one to ten years of imprisonment, which sentence was reduced to a term of tree years of probation. Mr. Kyle was released from probation in February of 1970. Since that time, Mr. Kyle has maintained himself as a responsible, law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Kyle be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Roger Lee Lyle for the offense of Grand Larceny.
Painter, Charles Franklin

Decided November 15, 2007

In 1966, Mr. Painter pleaded guilty to one count of Breaking and Entering. On August 5, 1966, he was sentenced by the Circuit Court of Brooke County to a term of one to ten years of imprisonment. Mr. Painter was granted parole on September 3, 1968, and successfully completed his term of parole on August 21, 1969. Since that time, Mr. Painter has maintained himself as a responsible, law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Kyle be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Charles Franklin Painter for the offense of Breaking and Entering.
Rakes, Darrell Gene

Decided November 15, 2007

In 1980, Mr. Rakes pleaded guilty to one count of Possession with Intent to Deliver a Controlled Substance (Marijuana). On August 13,1980, he was sentenced by the Circuit Court of Fayette County to a term of one to ten years of imprisonment, which sentence was reduced to a term of three years of probation and payment of court costs. Mr. Rakes successfully completed all requirements of the court and was released from probation on August 10, 1983. Since that time, Mr. Rakes has maintained himself as a responsible, law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Rakes be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Darrell Eugene Rakes for the offense of Possession with Intent to Deliver a Controlled Substance (Marijuana).
Robertson, Glenn Douglas

Decided November 15, 2007

In 1968, Mr. Robertson pleaded guilty to one count of Petit Larceny and one count of Deface and Destroy Property. On November 1, 1968, he was sentenced by a Mineral County Justice of the Peace to pay restitution, fines and court costs on each charge. Mr. Robertson successfully fulfilled all requirements placed upon him by the Mineral County Justice of the Peace. Since that time, Mr. Robertson has maintained himself as a responsible and law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Robertson be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Glenn Douglas Robertson for the offenses of Petit Larceny and Deface and Destroy Property.
Shackelford, William Forrest

Decided November 15, 2007

In 1958, Mr. Schackelford pleaded guilty to one count of Grand Larceny. On May 16, 1958, he was sentenced by the Circuit Court of Jefferson County to a term of one to ten years of imprisonment, which sentence was reduced to a term of three years of probation. Mr Shackelford successfully completed his term of probation in September 0f 1960. Since that time, he has maintained himself as a responsible, law-abiding citizen and has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, unanimously recommended that Mr. Robertson be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to William Forrest Shackelford offense of Grand Larceny.
Vincent Robert William

Decided November 15, 2007

In 1970, Mr. Vincent pleaded guilty to one count of Breaking and Entering. On July 3, 1970, he was sentenced by a the Circuit Court of Brooke County to a term of one to ten years of imprisonment, which sentence was reduced to a term of two years of probation. Mr. Vincent successfully completed his term of probation July 3, 1972. Since that time, he has maintained himself as a responsible, law-abiding citizen had has led an exemplary and productive life. The West Virginia Parole Board, having fully reviewed and considered his record, recommended that Mr. Robertson be granted a full, unconditional and complete pardon.
For these reasons, Governor Manchin granted a full, unconditional and complete pardon to Robert William Vincent for the offense of Breaking and Entering.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of five from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Plymale, Edgell, Prezioso, Wells and Facemyer.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a Committee of Conference of five from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates M. Poling, Paxton, Williams, Doyle and Ireland.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4021, Revising mining safety equipment requirements and enhancing penalties for crimes against mining property.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §22A-2-6 of the Code of West Virginia, 1931, as amended, be amended and reenacted; §22A-2-55 of said code be amended and reenacted; and that §61-3-12 and §61-3-29 of said code be amended and reenacted, all to read as follows:
CHAPTER 22A. MINERS' HEALTH, SAFETY AND TRAINING.

ARTICLE 2. UNDERGROUND MINES.
§22A-2-6. Movement of mining equipment.
(a) Mining equipment being transported or trammed underground, other than ordinary sectional movements, shall be transported or trammed by qualified personnel under the supervision of a certified foreman. When equipment is being transported or trammed, no person shall be permitted to be in by the equipment in the ventilating split that is passing over such equipment. To avoid accidental contact with power lines, face equipment shall be insulated and assemblies removed, if necessary, so as to provide clearance.
(b) The task force shall, upon the effective date of the amendments to this section made during the two-thousand eight Regular Session of the West Virginia Legislature, undertake a study of methods and technologies available related to transporting miners, mining equipment and supplies in underground mines.
(c) Upon completion of the study directed by the provisions of subsection (b) of this section, the task force may present recommendations to the West Virginia Board of Coal Mine Health and Safety designed to improve the safety and efficiency of underground mines transportation systems. The board may upon the consideration of any such task force recommendations, promulgate rules governing the movement of mining equipment within coal mines in the State of West Virginia.
(d)
The rules governing the movement of Mining Equipment within Coal Mines in the State of West Virginia (CSR36-4) as modified by the circuit court of Kanawha County, West Virginia in civil action 79-2723 and practices as approved by the director as of the first day of February two- thousand eight shall remain in full force and effect until modified by any rules promulgated pursuant to subsection (c) of this section.
§22A-2-55. Protective equipment and clothing.

(a) Welders and helpers shall use proper shields or goggles to protect their eyes. All employees shall have approved goggles or shields and use the same where there is a hazard from flying particles or other eye hazards.
(b) Employees engaged in haulage operations and all other persons employed around moving equipment on the surface and underground shall wear snug-fitting clothing.
(c) Protective gloves shall be worn when material which may injure hands is handled, but gloves with gauntleted cuffs shall not be worn around moving equipment.
(d) Safety hats and safety-toed shoes shall be worn by all persons while in or around a mine: Provided, That metatarsal guards are not required to be worn by persons when working in those areas of underground mine workings which average less than forty-eight inches in height as measured from the floor to the roof of the underground mine workings.
(e) Approved eye protection shall be worn by all persons while being transported in open- type man trips.
(f)(1) A self-contained self-rescue device approved by the director shall be worn by each person underground or kept within his immediate reach and the device shall be provided by the operator. The self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. Each operator shall train each miner in the use of such device and refresher training courses for all underground employees shall be held during each calendar year.
(2) In addition to the requirements of subdivision (1) of this subsection, the operator shall also provide caches of additional self-contained self-rescue devices throughout the mine in accordance with a plan approved by the director. Each additional self-contained self-rescue device shall be adequate to protect a miner for one hour or longer. The total number of additional self-contained self-rescue devices, the total number of storage caches and the placement of each cache throughout the mine shall be established by rule pursuant to subsection (i) of this section. Intrinsically safe battery-powered strobe lights shall be affixed to each cache and shall be capable of automatic activation in the event of an emergency. A luminescent sign with the words 'SELF-CONTAINED SELF-RESCUER' or 'SELF-CONTAINED SELF-RESCUERS' shall be conspicuously posted at each cache and luminescent direction signs shall be posted leading to each cache. Lifeline cords or other similar device, with reflective material at twenty-five foot intervals, shall be attached to each cache from the last open crosscut to the surface. The operator shall conduct weekly inspections of each cache the affixed strobe lights and each lifeline cord or other similar device to ensure operability.
(3) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any self-contained self-rescue device or battery-powered strobe light lifeline cord from the mine or mine site with the intent to permanently deprive the operator of the device or light lifeline cord or knowingly tampers with or attempts to tamper with such device or light lifeline cord shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(g)(1) A wireless emergency communication device approved by the director and provided by the operator shall be worn by each person underground. The wireless emergency communication device shall, at a minimum, be capable of receiving emergency communications from the surface at any location throughout the mine. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine any and all equipment necessary to transmit emergency communications from the surface to each wireless emergency communication device at any location throughout the mine.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless emergency communication device or related equipment, from the mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(h)(1) A wireless tracking device approved by the director and provided by the operator shall be worn by each person underground. In the event of an accident or other emergency, the tracking device shall, at a minimum, be capable of providing real-time monitoring of the physical location of each person underground: Provided, That no person shall discharge or discriminate against any miner based on information gathered by a wireless tracking device during nonemergency monitoring. Each operator shall train each miner in the use of the device and provide refresher training courses for all underground employees during each calendar year. The operator shall install in or around the mine all equipment necessary to provide real-time emergency monitoring of the physical location of each person underground.
(2) Any person that, without the authorization of the operator or the director, knowingly removes or attempts to remove any wireless tracking device or related equipment, approved by the director, from a mine or mine site with the intent to permanently deprive the operator of the device or equipment or knowingly tampers with or attempts to tamper with the device or equipment shall be guilty of a felony and, upon conviction thereof, shall be imprisoned in a state correctional facility for not less than one year nor more than ten years or fined not less than ten thousand dollars nor more than one hundred thousand dollars, or both.
(I) The director may promulgate emergency and legislative rules to implement and enforce this section pursuant to the provisions of article three, chapter twenty-nine-a of this code.
(j) The penalties set forth in this article enacted during the regular session of the Legislature in January, two thousand six, shall become effective the first day of July, two thousand six.
CHAPTER 61. CRIMES AND THEIR PUNISHMENT.

ARTICLE 3. CRIMES AGAINST PROPERTY.
§61-3-12. Entry of building other than dwelling; entry of railroad, traction or motorcar, steamboat or other vessel; penalties; counts in indictment.

If any person shall, at any time, break and enter, or shall enter without breaking, any office, shop, underground coal mine, storehouse, warehouse, banking house, or any house or building, other than a dwelling house or outhouse adjoining thereto or occupied therewith, or any railroad or traction car, propelled by steam, electricity or otherwise, or any steamboat or other boat or vessel, within the jurisdiction of any county in this state, with intent to commit a felony or any larceny, he or she shall be deemed guilty of a felony, and, upon conviction, shall be confined in the penitentiary a state correctional facility not less than one nor more than ten years. And if any person shall, at any time, break and enter, or shall enter without breaking, any automobile, motorcar or bus, with like intent, within the jurisdiction of any county in this state, he shall be guilty of a misdemeanor, and, upon conviction, shall be confined in the county jail not less than two nor more than twelve months and be fined not exceeding one hundred dollars.
An indictment for burglary may contain one or more counts for breaking and entering, or for entering without breaking, the house or building mentioned in the count for burglary under the provisions of this and the preceding section.
§61-3-29. Damage or destruction of railroad or public utility company property, or real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; penalties; restitution.

(a) Any person who knowingly and willfully damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service, is guilty of a misdemeanor and, upon conviction thereof, shall be fined not more than two thousand dollars, or confined in the county or regional jail not more than one year, or both.
(b) Any person who knowingly and willfully: (1) damages or destroys any real or personal property owned by a railroad company, or public utility company, or any real or personal property used for producing, generating, transmitting, distributing, treating or collecting electricity, natural gas, coal, water, wastewater, stormwater, telecommunications or cable service; causing and, (2) causes serious bodily injury to another is guilty of a felony and, upon conviction thereof, shall be fined not less than five thousand dollars nor more than fifty thousand dollars, or confined in a state correctional facility not less than one nor more than five years, or both.
(c) Nothing in this section may be construed to limit or restrict the ability of an entity referred to in subsection (a) or (b) of this section or a property owner or other person who has been damaged or injured as a result of a violation of this section from seeking recovery for damages arising from violation of this section."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4021 - "A Bill to amend and reenact §22A-2-6 of the Code of West Virginia, 1931, as amended; to amend and reenact §22A-2-55 of said code; and to amend and reenact §61-3-12 and §61-3-29 of said code, all relating generally to coal mine health and safety; clarifying currency of rules and policies relating to transportation of miners and supplies; directing the West Virginia Mine Safety Task Force study possible improvements in transportation of miners and supplies in underground coal mines; eliminating requirement that strobe lights be affixed to caches of self-contained self-rescue devices; expanding criminal penalties for theft of certain coal mine equipment; establishing criminal penalties for illegal entry into underground coal mines; creating a criminal penalty for damage or destruction of coal mine equipment and property; and creating a criminal penalty for damage or destruction of coal mine equipment and property when a serious bodily injury results."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 444), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4021) passed.
Delegate DeLong moved that the bill take effect April 1, 2008.
On this question, the yeas and nays were taken (Roll No. 445), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4021) takes effect April 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §29-21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931, as amended, be repealed; that said code be amended by adding thereto a new section, designated §29-21-3b; and that §29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code be amended and reenacted, all to read as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3b. Indigent Defense Commission.
(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with regard to the general policies and procedures of the agency, including, but not limited to, the opening of public defender offices throughout the state and the establishment of performance measures for the qualitative review of indigent defense.
(b) In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall consist of the Executive Director of Public Defender Services, who shall serve as chair, the Director of the Prosecuting Attorneys Institute, and the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Two lawyers experienced in providing legal services to the indigent;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing legal services to the indigent.
(c) The commission shall meet at the times and places specified by the call of the chair: Provided, That the commission shall meet no less than four times each year. Members shall serve without compensation but may receive reimbursement of actual and necessary expenses for each day or portion thereof engaged in this discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(d) The appointed members of the commission serve four-year terms that shall coincide with the term of the Governor.
(e) The commission has the following powers and duties:
(1) To develop standards regarding the qualifications and training for public defenders, assistant public defenders and staff;
(2) To explore opportunities related to the training of appointed panel attorneys;
(3) To evaluate, on an annual basis, the caseloads of public defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert witnesses, investigators and other persons who provide services related to legal representation under this article;
(5) To study, monitor and evaluate existing standards for determining eligibility for legal representation under section sixteen of this article;
(6) To approve the creation of additional public defender corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender corporations in accordance with the provisions of section eight of this article; and
(7) To monitor and make recommendations regarding the following activities of the board of directors of each public defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant to subdivision (2), subsection (c), section fifteen of this article; and
(C) The removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance pursuant to subdivision (3), subsection (c), section fifteen of this article.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations for the purpose of providing legal representation under this article and may make such any other grants and contracts as that are necessary to carry out the purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided for in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance relating related to the delivery of legal representation; and to engage in research, except that broad general, legal or policy research unrelated to direct representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or his or her designate designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. This The accounting and auditing division shall review all plans and proposals for grants and contracts and shall make a recommendation of approval or disapproval to the executive director. The accounting and auditing division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article. The accounting and auditing division shall require each public defender corporation to periodically submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time utilized used in administration of the respective offices, so as to compare such the time to similar time expended in nonpublic law offices for like similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. Such This assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or a person designated by the executive director his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or a person designated by the executive director his or her designee shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts or by the Supreme Court of Appeals. The division may, however, refuse such the appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently utilize use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director is empowered to may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain vouchers and records for of representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation of an additional public defender corporation in a judicial circuit where the creation of such additional public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation of additional public defender corporations in accordance with this subsection, the executive director shall provide a report to the Secretary of the Department of Administration regarding the caseload and annual budget of the existing corporation and all payments made to panel attorneys appointed in the circuit.
(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.
(b) If the judge of a single-judge circuit, the chief judge of a multi-judge circuit or a majority of the active members of the bar in the circuit determine there is a need to activate the corporation, they shall certify that fact in writing to the executive director If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate a corporation in a judicial circuit of the state, he or she shall certify that fact in writing to the Secretary of the Department of Administration. The executive director shall allocate funds to those corporations so certifying certified corporations in the order in which he or she deems most efficient and cost effective.
(c) The executive director, with the approval of the Indigent Defense Commission, may require public defender corporations may apply in writing to the executive director for permission to merge to form multicircuit or regional public defender corporations where a merger would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who shall be are available to serve as counsel for eligible clients. An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients by informing the court. An agreement to accept cases generally or certain types of cases particularly shall may not prevent a panel attorney from declining an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge in the following order of preference:
(1)
In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless such an appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation;
(2) If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel;
(3) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;
(4) If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment;
(5) If the adjoining public defender office does not accept the appointment, the judge may appoint a panel attorney from an adjoining circuit; or
(6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case.
(c) In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court's reasons for doing so.
§29-21-13. Approval of public defender corporation funding applications; funding; recordkeeping by public defender corporations.

(a) On or before the first day of May of each year, each active public defender corporation shall submit to the executive director a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and annual budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with the applicants the board of directors of each public defender corporation, prepare a plan for providing legal services, execute a funding contract for the fiscal year and commit funds for that purpose.
(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article. At the discretion of the executive director, when caseloads increase or unusual expenses occur, funding contracts may be amended during a fiscal year if necessary to provide cost effective representation.
(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall maintain such records as required by the executive director.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than four years ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension: Provided, That claims where the last date of service occurred prior to the first day of July, two thousand eight, shall be rejected unless submitted prior to the first day of January, two thousand nine.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid, and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by Public Defender Services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In- court work includes, but is not limited to, all time spent awaiting hearing or trial if the presence of the attorney is required before a judge, magistrate, special master or other judicial officer.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(e) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of fifteen hundred one thousand five hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide receipts, invoices or other documentation required by the executive director and the State Auditor:
(1) (A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in section four, article seven, chapter fifty-one of this code. Reimbursement of the cost of copies of such transcripts is limited to the cost per copy page as provided for under said section. It is the duty of the executive director of Public Defender Services to maintain computer records of all transcripts, including originals and copies, for which payment has been made.
(B) (i) There shall be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court jury trial, which has been reported by a court reporter at the request of the attorney, where the preliminary such hearing or jury trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (I) of this paragraph or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court, is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (a) of this subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this paragraph, there shall be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court jury trials is limited to the rates established by the Supreme Court of Appeals for the reimbursement of transcriptions of electronically recorded hearings and trial one dollar per page.
(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the Governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.
(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article or the voucher guidelines established issued pursuant to subsection (a) of this section and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after the first day of July, two thousand eight, shall be reimbursed within ninety days of receipt. Reimbursements after ninety days shall bear interest from the ninety-first day at the legal rate in effect for the calendar year in which payment is due.
(i) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.
"
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4022 - "A Bill to repeal §29-21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §29-21-3b; and to amend and reenact §29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code, all relating to Public Defender Services generally; creating the Indigent Defense Commission; specifying members and their terms; specifying certain powers and duties of the Indigent Defense Commission; requiring public defender corporations to submit monthly financial statements and reports; providing requirements for the creation, activation and merger of public defender corporations; authorizing employment of certain attorneys; providing for the order of appointment of panel attorneys; establishing requirements for funding applications; requiring corporations to submit proposed budgets; authorizing amended funding contracts; authorizing executive director to establish guidelines for submission of claims and vouchers; establishing certain deadlines for submitting claims; providing for periodic payment of fees to panel attorneys; clarifying in-court work and meaning of separate cases; establishing limitations on reimbursement of certain expenses; requiring vouchers be reimbursed within a certain period; providing for interest accruing on late reimbursements; and giving preference to processing vouchers involving child abuse and neglect cases."
On motion of Delegate DeLong, the House refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4075, Providing for a video recording device monitoring system during Amber Alert periods.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4129, Revising licensing requirements for professional licensing boards, including authorizing a special volunteer license for health care professionals.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §30-1-18; that §30-3-10a of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §30-3-16a; that said code be amended by adding thereto two new sections, designated §30-4-8a and §30-4-10a; that said code be amended by adding thereto a new section, designated §30-5-10a; that said code be amended by adding thereto a new section, designated §30-7-6a; that said code be amended by adding thereto a new section, designated §30-8-5a; that said code be amended by adding thereto a new section, designated §30- 14A-5; that said code be amended by adding thereto a new section, designated §30-20-8a; that said code be amended by adding thereto a new section, designated §30-21-16; and that said code be amended by adding thereto a new section, designated §30-28-8a, all to read as follows:
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.

ARTICLE 1. GENERAL PROVISIONS APPLICABLE TO STATE BOARDS.
§30-1-18. Retired, volunteer and inactive status licenses.
(a) Every board referred to in this chapter may propose rules

for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code, to establish licensure criteria and continuing education requirements for retired, volunteer and inactive licenses.
(b) If a board which establishes licensure criteria as authorized in this section does not establish specific continuing education requirements, the retired, volunteer or inactive licensees shall comply with the same continuing education requirements as established by the respective boards for an active license.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-10a. Special volunteer medical license; civil immunity for voluntary services rendered to indigents.

(a) There is hereby established a special volunteer medical license for physicians retired or retiring from the active practice of medicine who wish to donate their expertise for the medical care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer medical license shall be issued by the West Virginia board of medicine to physicians licensed or otherwise eligible for licensure under this article and the rules promulgated hereunder without the payment of any application fee, license fee or renewal fee, shall be issued for a fiscal year or part thereof, and shall be renewable annually. The board shall develop application forms for the special license provided for in this subsection which shall contain the physician's acknowledgment that: (1) The physician's practice under the special volunteer medical license will be exclusively and totally devoted to providing medical care to needy and indigent persons in West Virginia; (2) the physician will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any medical services rendered under the special volunteer medical license; (3) the physician will supply any supporting documentation that the board may reasonably require; and (4) the physician agrees to continue to participate in continuing medical education as required of physicians in active practice.
(b) Any physician who renders any medical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer medical license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the physician and the clinic pursuant to which the physician will provide voluntary noncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician at the clinic: Provided, That any clinic entering into such written agreement shall be required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (a) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge shall not be relieved from imputed liability for the negligent acts of a physician rendering voluntary medical services at or for the clinic under a special volunteer medical license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section ten of this article and in the legislative rules promulgated hereunder, except the fee requirements of subsections (b) and (d) of said section and of the legislative rule promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer medical license to any physician whose medical license is or has been subject to any disciplinary action or to any physician who has surrendered a medical license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her medical license, or who has elected to place a medical license in inactive status in lieu of having a complaint initiated or other action taken against his or her medical license, or who have been denied a medical license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physician who holds a special volunteer medical license: Provided, That this subsection shall not apply to a terminated policy, terminated contract of liability insurance or extended reporting endorsement attached thereto that provides 'tail insurance' as defined by section two, article twenty-d, chapter thirty-three of this code: Provided further, That nothing within this subsection shall be construed to extend coverage under a terminated policy or terminated contract of liability insurance or any extended reporting endorsement attached thereto to (1) alter or amend the effective policy period of any policy, contract of liability insurance or extended reporting endorsement or (2) cover the treatment of indigent and needy patients by a physician who holds a special volunteer medical license.
§30-3-16a. Special volunteer physician assistant license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer physician assistant license for physician assistants retired or retiring from the active practice of medicine who wish to donate their expertise for the medical care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer physician assistant license shall be issued by the West Virginia Board of Medicine to physician assistants licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the physician assistant's acknowledgment that:
(1) The physician assistant's practice under the special volunteer physician assistant license will be exclusively devoted to providing medical care to needy and indigent persons in West Virginia;
(2) The physician assistant will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any medical services rendered under the special volunteer physician assistant license;
(3) The physician assistant will supply any supporting documentation that the board may reasonably require; and
(4) The physician assistant agrees to continue to participate in continuing education as required by the board for the special volunteer physician assistant license.
(b) Any physician assistant who renders any medical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer physician assistant license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation, is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the medical service at the clinic unless the act or omission was the result of the physician assistant's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the physician assistant and the clinic pursuant to which the physician assistant will provide voluntary uncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the physician assistant at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a physician assistant rendering voluntary medical services at or for the clinic under a special volunteer physician assistant license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section sixteen of this article and in the legislative rules promulgated thereunder, except the fee requirements of subsection (n) of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer physician assistant license to any physician assistant whose license is or has been subject to any disciplinary action or to any physician assistant who has surrendered a physician assistant license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a physician assistant license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a physician assistant license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physician assistant covered under the provisions of this article, shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physician assistant who holds a special volunteer physician assistant license.
ARTICLE 4. WEST VIRGINIA DENTAL PRACTICE ACT.
§30-4-8a. Special volunteer dental license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer dental license for dentists retired or retiring from the active practice of dentistry who wish to donate their expertise for the dental care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer dental license shall be issued by the West Virginia board of dental examiners to dentists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of a application fee, license fee or renewal fee, shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the dentist's acknowledgment that:
(1) The dentist's practice under the special volunteer dental license will be exclusively devoted to providing dental care to needy and indigent persons in West Virginia;
(2) The dentist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any dental services rendered under the special volunteer dental license;
(3) The dentist will supply any supporting documentation that the board may reasonably require; and
(4) The dentist agrees to continue to participate in continuing dental education as required by the board for a special volunteer dental license.
(b) Any dentist who renders any dental service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer dental license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the dental service at the clinic unless the act or omission was the result of the dentist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the dentist and the clinic pursuant to which the dentist will provide voluntary uncompensated dental services under the control of the clinic to patients of the clinic before the rendering of any services by the dentist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a dentist rendering voluntary dental services at or for the clinic under a special volunteer dental license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section eight of this article and in the legislative rules promulgated thereunder, except the fee requirements of subdivision six of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer dental license to any dentist whose dental license is or has been subject to any disciplinary action or to any dentist who has surrendered a dental license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her dental license, or who has elected to place a dental license in inactive status in lieu of having a complaint initiated or other action taken against his or her dental license, or who has been denied a dental license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any dentist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a dentist who holds a special volunteer dental license.
§30-4-10a. Special volunteer dental hygienist license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer dental hygienist license for dental hygienists retired or retiring from the active practice of dental hygiene who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer dental hygienist license shall be issued by the West Virginia board of dental examiners to dental hygienists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the dental hygienist's acknowledgment that:
(1) The dental hygienist's practice under the special volunteer dental hygienist license will be exclusively devoted to providing dental hygiene care to needy and indigent persons in West Virginia;
(2) The dental hygienist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any dental hygiene services rendered under the special volunteer dental hygienist license;
(3) The dental hygienist will supply any supporting documentation that the board may reasonably require; and
(4) The dental hygienist agrees to continue to participate in continuing professional education as required by the board for the special volunteer dental hygienist.
(b) Any dental hygienist who renders any dental hygiene service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer dental hygienist license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the dental hygiene service at the clinic unless the act or omission was the result of the dental hygienist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the dental hygienist and the clinic pursuant to which the dental hygienist will provide voluntary uncompensated dental hygiene services under the control of the clinic to patients of the clinic before the rendering of any services by the dental hygienist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a dental hygienist rendering voluntary dental hygiene services at or for the clinic under a special volunteer dental hygienist license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section ten of this article and in the legislative rules promulgated thereunder, except the fee requirements of subdivision six of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer dental hygienist license to any dental hygienist whose license is or has been subject to any disciplinary action or to any dental hygienist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her dental hygienist license, or who has elected to place a dental hygienist license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a dental hygienist license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any dental hygienist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a dental hygienist who holds a special volunteer dental hygienist license.
ARTICLE 5. PHARMACISTS, PHARMACY TECHNICIANS, PHARMACY INTERNS AND PHARMACIES.

§30-5-10a. Special volunteer pharmacist license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer pharmacist license for pharmacists retired or retiring from the active practice of pharmaceutical care who wish to donate their expertise for the pharmaceutical care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer pharmacist license shall be issued by the West Virginia Board of Pharmacy to pharmacists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the pharmacist's acknowledgment that:
(1) The pharmacist's practice under the special volunteer pharmacist license will be exclusively devoted to providing pharmaceutical care to needy and indigent persons in West Virginia;
(2) The pharmacist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any pharmaceutical services rendered under the special volunteer pharmacist license;
(3) The pharmacist will supply any supporting documentation that the board may reasonably require; and
(4) The pharmacist agrees to continue to participate in continuing professional education as required by the board for the special volunteer pharmacist license.
(b) Any pharmacist who renders any pharmaceutical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer pharmacist license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the pharmaceutical service at the clinic unless the act or omission was the result of the pharmacist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the pharmacist and the clinic pursuant to which the pharmacist will provide voluntary uncompensated pharmaceutical services under the control of the clinic to patients of the clinic before the rendering of any services by the pharmacist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a pharmacist rendering voluntary pharmaceutical services at or for the clinic under a special volunteer pharmacist license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section five of this article and in the legislative rules promulgated thereunder, except the fee requirements of subsection (b) of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer pharmacist license to any pharmacist whose license is or has been subject to any disciplinary action or to any pharmacist who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a pharmacist license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a pharmacist license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any pharmacist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a pharmacist who holds a special volunteer pharmacist license.
ARTICLE 7. REGISTERED PROFESSIONAL NURSES.
§30-7-6a. Special volunteer registered professional nurse license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for registered professional nurses retired or retiring from the active practice of nursing who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer registered professional nurse license shall be issued by the West Virginia board of examiners for registered professional nurses to registered professional nurses licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the registered professional nurse's acknowledgment that:
(1) The registered professional nurse's practice under the special volunteer registered professional nurse license will be exclusively devoted to providing nursing care to needy and indigent persons in West Virginia;
(2) The registered professional nurse will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any nursing services rendered under the special volunteer registered professional nurse license;
(3) The registered professional nurse will supply any supporting documentation that the board may reasonably require; and
(4) The registered professional nurse agrees to continue to participate in continuing education as required by the board for the special volunteer registered professional nurse license.
(b) Any registered professional nurse who renders nursing service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer registered professional nurse license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the nursing service at the clinic unless the act or omission was the result of the registered professional nurse's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the registered professional nurse and the clinic pursuant to which the registered professional nurse will provide voluntary uncompensated nursing services under the control of the clinic to patients of the clinic before the rendering of any services by the registered professional nurse at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a registered professional nurse rendering voluntary nursing services at or for the clinic under a special volunteer registered professional nurse license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section six of this article and in the legislative rules promulgated thereunder, except the fee requirements of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer registered professional nurse license to any registered professional nurse whose license is or has been subject to any disciplinary action or to any registered professional nurse who has surrendered his or her license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a registered professional nurse license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a registered professional nurse license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any registered professional nurse covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a registered professional nurse who holds a special volunteer registered professional nurse license.
ARTICLE 8. OPTOMETRISTS.
§30-8-5a. Special volunteer certificate of registration; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer certificate of registration for optometrists retired or retiring from the active practice of optometry who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer certificate of registration shall be issued by the West Virginia board of optometry to optometrists registered or otherwise eligible for registration under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special certificate of registration provided in this subsection which shall contain the optometrist's acknowledgment that:
(1) The optometrist's practice under the special volunteer certificate of registration will be exclusively devoted to providing optometrical care to needy and indigent persons in West Virginia;
(2) The optometrist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any optometrical services rendered under the special volunteer certificate of registration;
(3) The optometrist will supply any supporting documentation that the board may reasonably require; and
(4) The optometrist agrees to continue to participate in continuing education as required by the board for a special volunteer optometrist license.
(b) Any optometrist who renders any optometrical service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer certificate of registration authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the optometrical service at the clinic unless the act or omission was the result of the optometrist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the optometrist and the clinic pursuant to which the optometrist will provide voluntary uncompensated optometrical services under the control of the clinic to patients of the clinic before the rendering of any services by the optometrist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an optometrist rendering voluntary optometrical services at or for the clinic under a special volunteer certificate of registration authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for registration' means the satisfaction of all the requirements for registration as listed in section five of this article and in the legislative rules promulgated thereunder, except the fee requirements of section seven of this article and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer certificate of registration to any optometrist whose certificate of registration is or has been subject to any disciplinary action or to any optometrist who has surrendered a certificate of registration or caused such registration to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her registration, or who has elected to place a certificate of registration in inactive status in lieu of having a complaint initiated or other action taken against his or her registration, or who has been denied a certificate of registration.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any optometrist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an optometrist who holds a special volunteer certificate of registration.
ARTICLE 14A. ASSISTANTS TO OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14A-5. Special volunteer osteopathic physician assistant certification; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer osteopathic physician assistant certificate for osteopathic physician assistants retired or retiring from the active practice of osteopathy who wish to donate their expertise for the medical care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer osteopathic physician assistant certificate shall be issued by the West Virginia Board of Osteopathy to osteopathic physician assistants certified or otherwise eligible for certification under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, shall be issued for and the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special certificate provided in this subsection which shall contain the osteopathic physician assistant's acknowledgment that:
(1) The osteopathic physician assistant's practice under the special volunteer osteopathic physician assistant certificate will be exclusively devoted to providing osteopathic care to needy and indigent persons in West Virginia;
(2) The osteopathic physician assistant will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any osteopathic services rendered under the special volunteer osteopathic physician assistant certificate;
(3) The osteopathic physician assistant will supply any supporting documentation that the board may reasonably require; and
(4) The osteopathic physician assistant agrees to continue to participate in continuing education as required by the board for a special volunteer osteopathic physician assistant license.
(b) Any osteopathic physician assistant who renders any osteopathic service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer osteopathic physician assistant certificate authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation, is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the osteopathic service at the clinic unless the act or omission was the result of the osteopathic physician assistant's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the osteopathic physician assistant and the clinic pursuant to which the osteopathic physician assistant will provide voluntary uncompensated medical services under the control of the clinic to patients of the clinic before the rendering of any services by the osteopathic physician assistant at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an osteopathic physician assistant rendering voluntary medical services at or for the clinic under a special volunteer osteopathic physician assistant certificate authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for certification' means the satisfaction of all the requirements for certification as listed in section one of this article and in the legislative rules promulgated thereunder. The term does not include the fee requirement of section three of this article or of legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer osteopathic physician assistant certificate to any osteopathic physician assistant whose certificate is or has been subject to any disciplinary action or to any osteopathic physician assistant who has surrendered an osteopathic physician assistant certificate or caused such certificate to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her certificate, or who has elected to place an osteopathic physician assistant certificate in inactive status in lieu of having a complaint initiated or other action taken against his or her certificate, or who has been denied an osteopathic physician assistant certificate.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any osteopathic physician assistant covered under the provisions of this article, shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an osteopathic physician assistant who holds a special volunteer osteopathic physician assistant certificate.
ARTICLE 20. PHYSICAL THERAPISTS.
§30-20-8a. Special volunteer physical therapist license, physical therapist assistant license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer license for physical therapists or physical therapy assistants, as the case may be, retired or retiring from active practice who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer license provided by this section shall be issued by the West Virginia board of physical therapy to physical therapists or physical therapist assistants licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the applicant's acknowledgment that:
(1) The applicant's practice under the special volunteer license will be exclusively devoted to providing physical therapy care to needy and indigent persons in West Virginia;
(2) The applicant will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any physical therapy services rendered under the special volunteer license;
(3) The applicant will supply any supporting documentation that the board may reasonably require; and
(4) The applicant agrees to continue to participate in continuing education as required of by the board for a special volunteer physical therapists or physical therapist assistants license, as the case may be.
(b) Any physical therapist or physical therapist assistant who renders any physical therapy service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the physical therapy service at the clinic unless the act or omission was the result of gross negligence or willful misconduct on the part of the physical therapist or physical therapist assistant. In order for the immunity under this subsection to apply, there must be a written agreement between the physical therapist or physical therapist assistant and the clinic pursuant to which the physical therapist or physical therapist assistant will provide voluntary uncompensated physical therapy services under the control of the clinic to patients of the clinic before the rendering of any services by the physical therapist or physical therapist assistant at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a physical therapist or physical therapist assistant rendering voluntary physical therapy services at or for the clinic under a special volunteer license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure for a physical therapist or physical therapist assistant, as the case may be, as listed in section six of this article and in the legislative rules promulgated thereunder, except the fee requirements of subsection (e) of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer license to any physical therapist or physical therapist assistant whose license is or has been subject to any disciplinary action or to any physical therapist or physical therapist assistant who has surrendered a license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any physical therapist or physical therapist assistant covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a physical therapist or physical therapist assistant who holds a special volunteer license.
ARTICLE 21. PSYCHOLOGISTS; SCHOOL PSYCHOLOGISTS.
§30-21-16. Special volunteer psychologists license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer psychologists license for psychologists retired or retiring from the active practice of psychology who wish to donate their expertise for the psychological care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer psychologist license shall be issued by the West Virginia Board of Examiners of Psychologists to psychologists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the psychologist's acknowledgment that:
(1) The psychologist's practice under the special volunteer psychologists license will be exclusively devoted to providing psychological care to needy and indigent persons in West Virginia;
(2) The psychologist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any psychological services rendered under the special volunteer psychological license;
(3) The psychologist will supply any supporting documentation that the board may reasonably require; and
(4) The psychologist agrees to continue to participate in continuing education as required by the board for a special volunteer psychologists license.
(b) Any psychologist who renders any psychological service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer psychologist license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation, is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the psychological service at the clinic unless the act or omission was the result of the psychologist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the psychologist and the clinic pursuant to which the psychologist will provide voluntary uncompensated psychological services under the control of the clinic to patients of the clinic before the rendering of any services by the psychologists at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of a psychologist rendering voluntary psychological services at or for the clinic under a special volunteer psychological license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section seven of this article and in the legislative rules promulgated thereunder, except the fee requirements of subsection (d) of that section and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer psychologist license to any psychologist whose license is or has been subject to any disciplinary action or to any psychologist who has surrendered a psychologist license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her license, or who has elected to place a psychologist license in inactive status in lieu of having a complaint initiated or other action taken against his or her license, or who has been denied a psychologist license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any psychologist covered under the provisions of this article, shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by a psychologist who holds a special volunteer psychologist license.
ARTICLE 28. WEST VIRGINIA OCCUPATIONAL THERAPY PRACTICE ACT.
§30-28-8a. Special volunteer occupational therapist license; civil immunity for voluntary services rendered to indigents.

(a) There is established a special volunteer occupational therapist license for occupational therapists retired or retiring from the active practice of occupational therapy who wish to donate their expertise for the care and treatment of indigent and needy patients in the clinic setting of clinics organized, in whole or in part, for the delivery of health care services without charge. The special volunteer occupational therapist license shall be issued by the West Virginia board of occupational therapy to occupational therapists licensed or otherwise eligible for licensure under this article and the legislative rules promulgated hereunder without the payment of an application fee, license fee or renewal fee, and the initial license shall be issued for the remainder of the licensing period, and renewed consistent with the boards other licencing requirements. The board shall develop application forms for the special license provided in this subsection which shall contain the occupational therapist's acknowledgment that:
(1) The occupational therapist's practice under the special volunteer occupational therapist license will be exclusively devoted to providing occupational therapy care to needy and indigent persons in West Virginia;
(2) The occupational therapist will not receive any payment or compensation, either direct or indirect, or have the expectation of any payment or compensation, for any occupational therapy services rendered under the special volunteer occupational therapist license;
(3) The occupational therapist will supply any supporting documentation that the board may reasonably require; and
(4) The occupational therapist agrees to continue to participate in continuing education as required by the board for a special volunteer occupational therapists license.
(b) Any occupational therapist who renders any occupational therapy service to indigent and needy patients of a clinic organized, in whole or in part, for the delivery of health care services without charge under a special volunteer occupational therapist license authorized under subsection (a) of this section without payment or compensation or the expectation or promise of payment or compensation is immune from liability for any civil action arising out of any act or omission resulting from the rendering of the occupational therapy service at the clinic unless the act or omission was the result of the occupational therapist's gross negligence or willful misconduct. In order for the immunity under this subsection to apply, there must be a written agreement between the occupational therapist and the clinic pursuant to which the occupational therapist will provide voluntary uncompensated occupational therapy services under the control of the clinic to patients of the clinic before the rendering of any services by the occupational therapist at the clinic: Provided, That any clinic entering into such written agreement is required to maintain liability coverage of not less than one million dollars per occurrence.
(c) Notwithstanding the provisions of subsection (b) of this section, a clinic organized, in whole or in part, for the delivery of health care services without charge is not relieved from imputed liability for the negligent acts of an occupational therapist rendering voluntary occupational therapy services at or for the clinic under a special volunteer occupational therapist license authorized under subsection (a) of this section.
(d) For purposes of this section, 'otherwise eligible for licensure' means the satisfaction of all the requirements for licensure as listed in section eight of this article and in the legislative rules promulgated thereunder, excepting the fee requirements of subsection (a), section eleven of this article and of the legislative rules promulgated by the board relating to fees.
(e) Nothing in this section may be construed as requiring the board to issue a special volunteer occupational therapist license to any occupational therapist whose occupational therapist license is or has been subject to any disciplinary action or to any occupational therapist who has surrendered an occupational therapist license or caused such license to lapse, expire and become invalid in lieu of having a complaint initiated or other action taken against his or her occupational therapist license, or who has elected to place an occupational therapist license in inactive status in lieu of having a complaint initiated or other action taken against his or her occupational therapist license, or who has been denied an occupational therapist license.
(f) Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any occupational therapist covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of the care and treatment of needy and indigent patients by an occupational therapist who holds a special volunteer occupational therapist license."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4129 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §30-1-18; to amend and reenact §30-3-10a of said code; to amend said code by adding thereto a new section, designated §30-3-16a; to amend said code by adding thereto two new sections, designated §30-4-8a and §30-4-10a; to amend said code by adding thereto a new section, designated §30-5-10a; to amend said code by adding thereto a new section, designated §30-7-6a; to amend said code by adding thereto a new section, designated §30-8-5a; to amend said code by adding thereto a new section, designated §30-14A-5; to amend said code by adding thereto a new section, designated §30-20-8a; to amend said code by adding thereto a new section, designated §30-21-16; and to amend said code by adding thereto a new section, designated §30-28-8a, all relating to the establishment of special, retired, volunteer and inactive licenses for certain professions and occupations; special volunteer medical license; exception as to terminated policy with 'tail insurance'; no extended coverage for certain circumstances; providing legislative rulemaking authority to the respective boards to set licensure criteria and continuing education; providing for special volunteer licenses for certain health care providers providing volunteer services; waiving certain licensing fees; and providing civil immunity for special volunteer licenses for certain health care providers."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 446), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4129) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 447), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4129) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4331, Eliminating the requirement to send surrendered driver's licenses back to the original state of licensure.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. ISSUANCE OF LICENSE, EXPIRATION AND RENEWAL.
§17B-2-1a. Surrender of license from other state or jurisdiction prior to receipt of license from this state; examination; fees required.

(a) The division of motor vehicles Division of Motor Vehicles shall not issue a driver's license to a person who holds a valid license to operate a motor vehicle issued by another state or jurisdiction unless or until the applicant shall surrender to the division the foreign license, or the person has signed and submitted to the division an affidavit to the effect that the person has surrendered all valid licenses issued to him or her by other states or jurisdictions. Any surrendered license issued by any other state or jurisdiction shall be returned to the division of motor vehicles or similar agency in that state or jurisdiction together with a notice destroyed or at the discretion of the division retained by the division and the division shall notify the original state of licensure that the person who surrendered the license has been licensed in this state. It shall be unlawful for a person to possess more than one valid driver's license at any time.
(b) Every driver shall, within thirty days after taking up residence in this state, apply to the division for a driver's license as prescribed in this article. For the purposes of this chapter the presumption that a natural person is a resident of this state is based on the provisions of section one-a, article three, chapter seventeen-a of this code. The division may assign the driver's license class, type, endorsements or restrictions based on the applicant's prior licensing status, age and the type of licensing system used by the state of prior licensing.
(c) All other applicable provisions of this article relating to issuance, fees, expiration and renewal of licenses, and driver examination of applicants shall also apply to this section.
§17B-2-3a. Graduated driver's licenses.
(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 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 birth certificate copy of a birth certificate issued by a state or other governmental entity responsible for vital records or a valid and unexpired 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 current school enrollment form or otherwise shows compliance with the provisions of section eleven, article eight, chapter eighteen of this code; and
(E) Pays a fee of five dollars 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 eleven 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 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 may not use a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 911 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
(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 thirty hours of behind-the-wheel driving experience 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 current school enrollment form 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 five dollars.
(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 eleven p.m.;
(B) Only under the direct supervision of a licensed driver, age twenty-one years or older, between the hours of eleven 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) Operates the vehicle with no more than three passengers under the age of nineteen, unless the passengers are family members, in addition to the driver;
(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 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 may not use a wireless communication device while operating a motor vehicle, unless the use of the wireless communication device is for contacting a 911 system. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
(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.
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
(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 the day designated by the commissioner of the month in which the licensee attains the age of twenty-one 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 two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents 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; 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 two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents 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 twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
§17B-2-5. Qualifications, issuance and fee for instruction permits.
(a) Any person who is at least fifteen years of age may apply to the division for an instruction permit. However, any person who has not attained the age of eighteen shall comply with the provisions of section three-a of this article. The division may, in its discretion, after the applicant has successfully passed all parts of the examination other than the road skills test, issue to the applicant an instruction permit which entitles the applicant while having the permit in his or her immediate possession to drive a motor vehicle upon the public highways when accompanied by a licensed driver of at least twenty-one years of age, a driver's education or driving school instructor that is acting in an official capacity as an instructor, who is alert and unimpaired or a certified division license examiner acting in an official capacity as an examiner, who is occupying a seat beside the driver.
(1) Any instruction permit issued to a person under the age of eighteen years shall be issued in accordance with the provisions of section three-a of this article.
(2) Any permit issued to a person who has reached the age of eighteen years is valid for a period of sixty ninety days and may be renewed within a period of sixty days without reexamination for an additional period of sixty days or a new permit issued. The fee for the instruction permit is four five dollars, one dollar of which shall be paid into the state treasury and credited to the state road fund, and the other three dollars of which shall be paid into the state treasury and credited to the general fund to be appropriated to the state police for application in the enforcement of the road law.
(b) Any person sixteen years of age or older may apply to the division for a motorcycle instruction permit. On and after the first day of January, two thousand one, any Any person under the age of eighteen must have first completed the requirements for a level two intermediate driver's license set forth in paragraphs (B), (C) and (D), subdivision (1), subsection (j), section three-a of this article, junior driver's license or driver's license before or a Class E driver's license before being eligible for a motorcycle instruction permit.
The division may, in its discretion, after the applicant has successfully passed all parts of the motorcycle examination other than the driving test, and presented documentation of compliance with the provisions of section eleven, article eight, chapter eighteen of this code, if applicable, issue to the applicant an instruction permit which entitles the applicant while having the permit in his or her immediate possession to drive a motorcycle upon the public streets or highways for a period of ninety days, during the daylight hours between sunrise and sunset only. No holder of a motorcycle instruction permit shall operate a motorcycle while carrying any passenger on the vehicle.
A motorcycle instruction permit is not renewable, but a qualified applicant may apply for a new permit. The fee for a motorcycle instruction permit is five dollars, which shall be paid into a special fund in the state treasury known as the motorcycle license examination fund as established in section seven-c, article two of this chapter motor vehicle fees fund.
§17B-2-6. Application for license or instruction permit; fee to accompany application.
(a) Every application for an instruction permit or for a driver's license shall be made upon a form furnished by the division. Every application shall be accompanied by the proper fee and payment of the fee shall entitle an applicant under the age of eighteen to not more than two attempts at the written test or not more than three attempts to pass the road skills test. An applicant age eighteen years or older is entitled to not more than two attempts at the written test or not more than three attempts to pass the road skills test within a period of sixty ninety days from the date of issuance of the instruction permit. An applicant who fails either the written test or the road skills test may not be tested twice within a period of one week.
(b) Any applicant who has not been previously licensed must hold an instruction permit for a minimum of thirty days. For the purposes of this section, the term 'previously licensed' means an applicant who has obtained at least a level two one graduated license or junior driver's license issued under the provisions of this article or has obtained an equal or greater level of licensure if previously licensed in another state.
(c) Every said application shall state the full legal name, date of birth, sex, and residence address of the applicant and briefly describe the applicant and shall state whether the applicant has theretofore been a licensed driver and, if so, when, and by what state or country and whether any such license has ever been suspended or revoked within the five years next preceding the date of application, or whether an application has ever been refused and, if so, the date of and reason for the suspension, revocation or refusal, whether the applicant desires a notation on the driver's license indicating that the applicant is an organ donor, in accordance with article one-b of this chapter, a diabetic, deaf, or hard of hearing, or has any other handicap or disability and such other pertinent information as the commissioner may require.
§17B-2-7. Examination of applicants.
(a) Upon the presentment of the applicant's birth certificate, or a certified copy of the birth certificate issued by a state or other governmental entity responsible for vital records or a valid and unexpired passport issued by the United States government, as evidence that the applicant is of lawful age and verifiable identity, the Division of Motor Vehicles shall examine every applicant for a license to operate a motor vehicle in this state, except as otherwise provided in this section. The examination shall include a test of the applicant's eyesight, the applicant's ability to read and understand highway signs regulating, warning, and directing traffic, the applicant's knowledge of the traffic laws of this state, and the applicant's knowledge of the effects of alcohol upon persons and the dangers of driving a motor vehicle under the influence of alcohol. The examination shall also include an actual demonstration of ability to exercise ordinary and reasonable control in the operation of a motor vehicle, and any further physical and mental examination as the division of motor vehicles Division of Motor Vehicles considers necessary to determine the applicant's fitness to operate a motor vehicle safely upon the highways.
(b) The commissioner shall propose legislative rules for promulgation in accordance with the provisions of article three, chapter twenty-nine-a of this code concerning the examination of applicants for licenses and the qualifications required of applicants, and the examination of applicants by the division shall be in accordance with the rules. The rules shall provide for the viewing of educational material or films on the medical, biological, and psychological effects of alcohol upon persons, the dangers of driving a motor vehicle while under the influence of alcohol and the criminal penalties and administrative sanctions for alcohol and drug related motor vehicle violations.
(c) After successful completion of the examination required by this section, section three-a, or section seven-b of this article, and prior to the issuance of a license pursuant to the provisions of section eight of this article, every applicant for a driver's license, junior driver's license, graduated driver's license, or motorcycle-only license shall attend a mandatory education class on the dangers and social consequences of driving a motor vehicle while under the influence of alcohol. To the extent practicable, the commissioner shall use as lecturers at those classes persons who can relate first-hand experiences as victims or family members of victims of alcohol-related accidents or drivers who have been involved in alcohol-related accidents which caused serious bodily injury or death.
§17B-2-8. Issuance and contents of licenses; fees.
(a) The division shall, upon payment of the required fee, issue to every applicant qualifying therefor a driver's license, which shall indicate the type or general class or classes of vehicle or vehicles the licensee may operate in accordance with this chapter or chapter seventeen-e of this code, or motorcycle-only license. Each license shall contain a coded number assigned to the licensee, the full legal name, date of birth, residence address, a brief description and a color photograph of the licensee and either a facsimile of the signature of the licensee or a space upon which the signature of the licensee shall be written with pen and ink immediately upon receipt of the license. No license is valid until it has been so signed by the licensee. Provided, that the commissioner may issue upon proper documentation, a duplicate or renewed valid without-photo license for resident applicants temporarily out of state.
(b) A driver's license which is valid for operation of a motorcycle shall contain a motorcycle endorsement.
(c) The division shall use such process or processes in the issuance of licenses that will, insofar as possible, prevent any alteration, counterfeiting, duplication, reproduction, forging or modification of, or the superimposition of a photograph on, the license.
(b) (d) The fee for the issuance of a Class E driver's license is two dollars and fifty cents per year for each year the license is issued to be valid. The fee for issuance of a Class D driver's license is six dollars and twenty-five cents per year for each year the license is issued to be valid. An additional fee of fifty cents shall be collected from the applicant at the time of original issuance or each renewal and the additional fee shall be deposited in the 'combined voter registration and driver's licensing fund,' established pursuant to the provisions of section twelve, article two, chapter three of this code. The additional fee for adding a motorcycle endorsement to a driver's license is one dollar per year for each year the license is issued.
(e) The fee for issuance of a motorcycle-only license is two dollars and fifty cents for each year for which the motorcycle license is to be valid. The fees for the motorcycle endorsement or motorcycle-only license shall be paid into a special fund in the State Treasury known as the Motorcycle Safety Fund as established in section seven, article one-d of this chapter.
(c) (f) On or after the first day of January, two thousand one, the The fee for the issuance of either the level one or level two graduated driver's license as prescribed in section three-a of this article is five dollars.
(g) The division may use an address on the face of the license other than the applicant's address of residence if:
(1) The applicant has a physical address or location that is not recognized by the post office for the purpose of receiving mail;
(2) The applicant is enrolled in a state address confidentiality program or the alcohol test and lock program;
(3) The applicant's address is entitled to be suppressed under a state or federal law or suppressed by a court order; or
(4) At the discretion of the commissioner, the applicant's address may be suppressed to provide security for classes of applicants such as law-enforcement officials, protected witnesses and members of the state and federal judicial systems."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 448), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4331) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4404, Discount Medical Plan Organizations and Discount Prescription Drug Plan Organizations Act.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page thirteen, section eight, lines twenty-eight through thirty-one, by striking out all of subsection (c) and inserting in lieu thereof a new subsection (c), to read as follows:
"(c) When a marketer or discount medical plan organization sells a discount medical plan in conjunction with any other products, the marketer or discount medical plan organization shall:
(1) Provide the charges for each discount medical plan in writing to the member; or
(2) Reimburse the member for all periodic charges for the discount medical plan and all periodic charges for any other product if the member cancels his or her membership in accordance with subdivision (1), subsection (b) of this section."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 449), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4404) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4471, Making certain changes to the West Virginia State Police Retirement System.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Foster, McCabe and Facemyer.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Stalnaker, Craig and Evans.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
H. B. 4482, Allowing payments from the Parkways Authority to the Hatfield-McCoy Regional Recreational Authority to continue past the nine-year limitation.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Boley, Edgell and Guills.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Browning, Barker and Walters.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
H. B. 4513, Relating to the reimbursement of costs for newborn screenings.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section three, lines seven and eight, by striking out the words "No later than the first day of July, two thousand seven, the" and inserting in lieu thereof the word "The".
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 450), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4513) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4617, Allowing e-notification by using e-certified cards for verification of certified mail acceptance to the court of origin for service of process.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §31B-1-111 of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §31D-5-504 of said code be amended and reenacted; that §31D-15-1510 of said code be amended and reenacted; that §31E-5-504 of said code be amended and reenacted; that §31E-14- 1410 of said code be amended and reenacted; that §46A-2-137 of said code be amended and reenacted; that §47-9-4 of said code be amended and reenacted; and that §56-3-31 and §56-3-33 of said code be amended and reenacted, all to read as follows:
CHAPTER 31B. UNIFORM LIMITED LIABILITY COMPANY ACT.

ARTICLE 1. GENERAL PROVISIONS.
§31B-1-111. Service of process.
(a) An agent for service of process appointed by a limited liability company or a foreign limited liability company is an agent of the company for service of any process, notice or demand required or permitted by law to be served upon the company.
(b) If a limited liability company or foreign limited liability company fails to appoint or maintain an agent for service of process in this state or the agent for service of process cannot with reasonable diligence be found at the agent's address, the Secretary of State is an agent of the company upon whom process, notice or demand may be served.
(c) Service of any process, notice or demand on the Secretary of State may be made by delivering to and leaving with the Secretary of State, the assistant Secretary of State or clerk having charge of the limited liability company department of the Secretary of State, the original process, notice or demand and two copies thereof for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. No process, notice or demand may be served on or accepted by the Secretary of State less than ten days before the return day thereof. If the process, notice or demand is served on the Secretary of State, the Secretary of State shall forward one of the copies by registered or certified mail, return receipt requested, to the company at its designated office and shall file in his or her office a copy of such process, notice or demand, with a note thereon endorsed of the time of service, or acceptance, as the case may be. The Secretary of State, upon being served with or accepting any process, notice or demand, shall: (1) File in his or her office a copy of the process, notice or demand, endorsed as of the time of service or acceptance; and (2) transmit one copy of the process, notice or demand by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to the limited liability company's registered agent: Provided, That if there is no registered agent, then to the individual whose name and address was last given to the Secretary of State's office as the person designated to receive process, notice or demand. If no person has been named, then to the principal office of the limited liability company at the address last given to the Secretary of State's office and if no address is available on record with the Secretary of State then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Such service or acceptance of process, notice or demand is sufficient if the return receipt is signed by an agent or employee of such company, or the registered or certified mail so sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, showing the stamp of the United States postal service that delivery thereof has been refused, and such return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process, notice or demand and filed in the clerk's office of the court from which the process, notice or demand was issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process, notice or demand may be served on the Secretary of State or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings. (d) The Secretary of State shall keep a record of all processes, notices and demands served pursuant to this section and record the time of and the action taken regarding the service.
(e) This section does not affect the right to serve process, notice or demand in any manner otherwise provided by law.
CHAPTER 31D. WEST VIRGINIA BUSINESS CORPORATION ACT.

ARTICLE 5. OFFICE AND AGENT.
§31D-5-504. Service on corporation.

(a) A corporation's registered agent is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(c) In addition to the methods of service on a corporation provided in subsections (a) and (b) of this section, the Secretary of State is hereby constituted the attorney-in-fact for and on behalf of each corporation created pursuant to the provisions of this chapter. The Secretary of State has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the Secretary of State as attorney-in-fact is necessary. Service of any process, notice or demand on the Secretary of State may be made by delivering to and leaving with the Secretary of State the original process, notice or demand and two copies of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code: Provided, That with regard to a class action suit in which all defendants are to be served with the same process, notice or demand, service may be made by filing with the Secretary of State the original process, notice or demand and one copy for each named defendant. Immediately after being served with or accepting any process or notice, the Secretary of State shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service or acceptance; and (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the Secretary of State's office as the person to whom notice and process are to be sent and if no person has been named, to the principal office of the corporation as that address was last given to the Secretary of State's office. If no address is available on record with the Secretary of State, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or necessarily the required means, of serving a corporation.
ARTICLE 15. FOREIGN CORPORATIONS.
§31D-15-1510. Service on foreign corporation.
(a) The registered agent of a foreign corporation authorized to transact business in this state is the corporation's agent for service of process, notice or demand required or permitted by law to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent return required pursuant to section three, article twelve-c, chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot with reasonable diligence be served;
(2) Has withdrawn from transacting business in this state under section one thousand five hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section one thousand five hundred thirty-one of this article.
(c) Service is perfected under subsection (b) of this section at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(d) In addition to the methods of service on a foreign corporation provided in subsections (a) and (b) of this section, the Secretary of State is hereby constituted the attorney-in-fact for and on behalf of each foreign corporation authorized to do or transact business in this state pursuant to the provisions of this chapter. The Secretary of State has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the Secretary of State as attorney-in-fact is necessary. Service of any process, notice or demand on the Secretary of State may be made by delivering to and leaving with the Secretary of State the original process, notice or demand and two copies one copy of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the Secretary of State shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service or acceptance; and (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The foreign corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the Secretary of State's office as the person to whom notice and process are to be sent and if no person has been named, to the principal office of the foreign corporation as that address was last given to the Secretary of State's office. If no address is available on record with the Secretary of State, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued. After receiving verification from United States postal service that acceptance of process, notice or demand has been accepted, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(e) Any foreign corporation doing or transacting business in this state without having been authorized to do so pursuant to the provisions of this chapter is conclusively presumed to have appointed the Secretary of State as its attorney-in-fact with authority to accept service of notice and process on behalf of the corporation and upon whom service of notice and process may be made in this state for and upon the corporation in any action or proceeding arising from activities described in section one thousand five hundred one of this article. No act of a corporation appointing the Secretary of State as its attorney-in-fact is necessary. Immediately after being served with or accepting any process or notice, of which process or notice two copies one copy for each defendant are to be furnished to the Secretary of State with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the Secretary of State shall file in his or her office a copy of the process or notice, with a note endorsed of the time of service or acceptance, and transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to the corporation at the address of its principal office, which address shall be stated in the process or notice. The service or acceptance of process or notice is sufficient if the return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing thereon the stamp of the United States postal service that delivery thereof has been refused and the return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed therewith in the clerk's office of the court from which the process or notice was issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return date thereof. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.
CHAPTER 31E. WEST VIRGINIA NONPROFIT CORPORATION ACT.

ARTICLE 5. OFFICE AND AGENT.
§31E-5-504. Service on corporation.
(a) A corporation's registered agent is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the corporation.
(b) If a corporation has no registered agent, or the agent cannot with reasonable diligence be served, the corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the corporation at its principal office. Service is perfected under this subsection at the earliest of:
(1) The date the corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(c) In addition to the methods of service on a corporation provided in subsections (a) and (b) of this section, the Secretary of State is hereby constituted the attorney-in-fact for and on behalf of each corporation created pursuant to the provisions of this chapter. The Secretary of State has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the Secretary of State as attorney-in-fact is necessary. Service of any process, notice or demand on the Secretary of State may be made by delivering to and leaving with the Secretary of State the original process, notice or demand and two copies of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the Secretary of State shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service, or acceptance; and (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the Secretary of State's office as the person to whom notice and process are to be sent, and if no person has been named, to the principal office of the corporation as that address was last given to the Secretary of State's office; and if no address is available on record with the Secretary of State, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service, the Secretary of State shall return the refused or undeliverable mail to the clerk's office from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(d) This section does not prescribe the only means, or necessarily the required means of serving a corporation.
ARTICLE 14. FOREIGN CORPORATIONS.
PART 1. CERTIFICATE OF AUTHORITY.

§31E-14-1410. Service on foreign corporation.

(a) The registered agent of a foreign corporation authorized to conduct activities in this state is the corporation's agent for service of process, notice, or demand required or permitted by law to be served on the foreign corporation.
(b) A foreign corporation may be served by registered or certified mail, return receipt requested, addressed to the secretary of the foreign corporation at its principal office shown in its application for a certificate of authority or in its most recent return required pursuant to section three, article twelve-c, chapter eleven of this code if the foreign corporation:
(1) Has no registered agent or its registered agent cannot with reasonable diligence be served;
(2) Has withdrawn from conducting activities in this state under section one thousand four hundred twenty of this article; or
(3) Has had its certificate of authority revoked under section one thousand four hundred thirty-one of this article.
(c) Service is perfected under subsection (b) of this section at the earliest of:
(1) The date the foreign corporation receives the mail;
(2) The date shown on the return receipt, if signed on behalf of the foreign corporation; or
(3) Five days after its deposit in the United States mail, as evidenced by the postmark, if mailed postpaid and correctly addressed.
(d) In addition to the methods of service on a foreign corporation provided in subsections (a) and (b) of this section, the Secretary of State is hereby constituted the attorney-in-fact for and on behalf of each foreign corporation authorized to conduct affairs in this state pursuant to the provisions of this chapter. The Secretary of State has the authority to accept service of notice and process on behalf of each corporation and is an agent of the corporation upon whom service of notice and process may be made in this state for and upon each corporation. No act of a corporation appointing the Secretary of State as attorney-in-fact is necessary. Service of any process, notice or demand on the Secretary of State may be made by delivering to and leaving with the Secretary of State the original process, notice or demand and two copies of the process, notice or demand for each defendant, along with the fee required by section two, article one, chapter fifty-nine of this code. Immediately after being served with or accepting any process or notice, the Secretary of State shall: (1) File in his or her office a copy of the process or notice, endorsed as of the time of service, or acceptance; and (2) transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to: (A) The foreign corporation's registered agent; or (B) if there is no registered agent, to the individual whose name and address was last given to the Secretary of State's office as the person to whom notice and process are to be sent, and if no person has been named, to the principal office of the foreign corporation as that address was last given to the Secretary of State's office. If no address is available on record with the Secretary of State, then to the address provided on the original process, notice or demand, if available; and (3) transmit the original process, notice or demand to the clerk's office of the court from which the process, notice or demand was issued. Service or acceptance of process or notice is sufficient if return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing the stamp of the United States postal service that delivery has been refused, and the return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed in the clerk's office of the court from which the process or notice was issued. After receiving verification from United States postal service that acceptance of process, notice or demand has been accepted, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return the refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return day of the process or notice. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(e) Any foreign corporation conducting affairs in this state without having been authorized to do so pursuant to the provisions of this chapter is conclusively presumed to have appointed the Secretary of State as its attorney-in-fact with authority to accept service of notice and process on behalf of the corporation and upon whom service of notice and process may be made in this state for and upon the corporation in any action or proceeding arising from activities described in section one thousand four hundred one of this article. No act of a corporation appointing the Secretary of State as its attorney-in-fact is necessary. Immediately after being served with or accepting any process or notice, of which process or notice two copies for each defendant are to be furnished to the Secretary of State with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the Secretary of State shall file in his or her office a copy of the process or notice, with a note endorsed of the time of service or acceptance, and transmit one copy of the process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to the corporation at the address of its principal office, which address shall be stated in the process or notice. The service or acceptance of process or notice is sufficient if the return receipt is signed by an agent or employee of the corporation, or the registered or certified mail sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his or her office, showing thereon the stamp of the United States postal service that delivery thereof has been refused, and the return receipt or registered or certified mail is received by the Secretary of State by a means which may include electronic issuance and acceptance of electronic return receipts. appended to the original process or notice and filed therewith in the clerk's office of the court from which the process or notice was issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. No process or notice may be served on the Secretary of State or accepted by him or her less than ten days before the return date thereof. The court may order continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings.
(f) This section does not prescribe the only means, or necessarily the required means, of serving a foreign corporation.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT AND PROTECTION ACT.

ARTICLE 2. CONSUMER CREDIT PROTECTION.
§46A-2-137. Service of process on certain nonresidents.

Any nonresident person, except a nonresident corporation authorized to do business in this state pursuant to the provisions of chapter thirty-one of this code, who takes or holds any negotiable instrument, nonnegotiable instrument, or contract or other writing, arising from a consumer credit sale or consumer lease which is subject to the provisions of this article, other than a sale or lease primarily for an agricultural purpose, or who is a lender subject to the provisions of section one hundred three of this article, shall be conclusively presumed to have appointed the Secretary of State as his attorney-in-fact with authority to accept service of notice and process in any action or proceeding brought against him arising out of such consumer credit sale, consumer lease or consumer loan. A person shall be considered a nonresident hereunder if he is a nonresident at the time such service of notice and process is sought. No act of such person appointing the Secretary of State shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the Secretary of State with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the Secretary of State shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to such person at his address, which address shall be stated in such process or notice: Provided, That such return receipt shall be signed by such person or an agent or employee of such person if a corporation, or the registered or certified mail so sent by said Secretary of State is refused by the addressee and the registered or certified mail is returned to said Secretary of State, or to his office, showing thereon the stamp of the U.S. postal service that delivery thereof has been refused, and such return receipt or registered or certified mail is appended to the original process or notice and filed therewith in the clerk's office of the court from which such process or notice was issued. after receiving verification from the United States postal service that acceptance of process or notice has been signed, the Secretary of State shall notify the clerk's office of the court from which the process or notice was issued by a means which may include electronic notification. If the process or notice was refused or undeliverable by the United States postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process or notice was issued. But no process or notice shall be served on the Secretary of State or accepted fewer than ten days before the return date thereof. The court may order such continuances as may be reasonable to afford each defendant opportunity to defend the action or proceeding. The provisions for service of process or notice herein are cumulative and nothing herein contained shall be construed as a bar to the plaintiff in any action from having process or notice in such action served in any other mode and manner provided by law.
CHAPTER 47. REGULATION OF TRADE.

ARTICLE 9. UNIFORM LIMITED PARTNERSHIP ACT.
§47-9-4. Secretary of State constituted attorney-in-fact for all limited partnerships; manner of acceptance or service of notice and process upon Secretary of State; what constitutes conducting affairs or doing or transacting business in this state for purposes of this section.

The Secretary of State is hereby constituted the attorney-in-fact for and on behalf of every limited partnership created by virtue of the laws of this state and every foreign limited partnership authorized to conduct affairs or do or transact business herein pursuant to the provisions of this article, with authority to accept service of notice and process on behalf of every such limited partnership and upon whom service of notice and process may be made in this state for and upon every such limited partnership. No act of such limited partnership appointing the Secretary of State such attorney-in-fact shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the Secretary of State with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the Secretary of State shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, to the person to whom notice and process shall be sent, whose name and address were last furnished to the state officer at the time authorized by statute to accept service of notice and process and upon whom notice and process may be served; and if no such person has been named, to the principal office of the limited partnership at the address last furnished to the state officer at the time authorized by statute to accept service of process and upon whom process may be served, as required by law, or if no address is available on record with the Secretary of State then to the address provided on the original process or process, if available. No process or notice shall be served on the Secretary
of State or accepted by him less than ten days before the return day thereof. Such limited partnership shall pay the annual fee prescribed by article twelve, chapter eleven of this code for the services of the Secretary of State as its attorney-in-fact.
Any foreign limited partnership which shall conduct affairs or do or transact business in this state without having been authorized so to do pursuant to the provisions of this article shall be conclusively presumed to have appointed the Secretary of State as its attorney-in-fact with authority to accept service of notice and process on behalf of such limited partnership and upon whom service of notice and process may be made in this state for and upon every such limited partnership in any action or proceeding described in the next following paragraph of this section. No act of such limited partnership appointing the Secretary of State as such attorney-in-fact shall be necessary. Immediately after being served with or accepting any such process or notice, of which process or notice two copies for each defendant shall be furnished the Secretary of State with the original notice or process, together with the fee required by section two, article one, chapter fifty-nine of this code, the Secretary of State shall file in his office a copy of such process or notice, with a note thereon endorsed of the time of service or acceptance, as the case may be, and transmit one copy of such process or notice by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, to such limited partnership at the address of its principal office, which address shall be stated in such process or notice. Such service or acceptance of such process or notice shall be sufficient if such return receipt shall be signed by an agent or employee of such limited partnership., or the registered or certified mail so sent by the Secretary of State is refused by the addressee and the registered or certified mail is returned to the Secretary of State, or to his office, showing thereon the stamp of the United States postal service that delivery thereof has been refused, and such return receipt or registered or certified mail is appended to the original process or notice and filed therewith in the clerk's office of the court from which such process or notice was issued. After receiving verification from the United States postal service that acceptance of process or notice has been signed, the Secretary of State shall notify the clerk's office of the court from which the process or notice was issued by a means which may include electronic notification. If the process or notice was refused or undeliverable by the United State postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process or notice was issued. No process or notice shall be served on the Secretary of State or accepted by him less than ten days before the return date thereof. The court may order such continuances as may be reasonable to afford each defendant opportunity to defend the action or proceedings. For the purpose of this section, a foreign limited partnership not authorized to conduct affairs or do or transact business in this state pursuant to the provisions of this article shall nevertheless be deemed to be conducting affairs or doing or transacting business herein (a) if such limited partnership makes a contract to be performed, in whole or in part, by any party thereto in this state, (b) if such limited partnership commits a tort, in whole or in part, in this state, or (c)if such limited partnership manufactures, sells, offers for sale or supplies any product in a defective condition and such product causes injury to any person or property within this state notwithstanding the fact that such limited partnership had no agents, servants or employees or contacts within this state at the time of said injury. The making of such contract, the committing of such tort or the manufacture or sale, offer of sale or supply of such defective product as herein above described shall be deemed to be the agreement of such limited partnership that any notice or process served upon, or accepted by, the Secretary of State pursuant to the next preceding paragraph of this section in any action or proceeding against such limited partnership arising from or growing out of such contract, tort or manufacture or sale, offer of sale or supply of such defective product shall be of the same legal force and validity as process duly served on such limited partnership in this state.
CHAPTER 56. PLEADING AND PRACTICE.

ARTICLE 3. WRITS, PROCESS AND ORDER OF PUBLICATION.
§56-3-31. Actions by or against nonresident operators of motor vehicles involved in highway accidents; appointment of Secretary of State, insurance company, as agents; service of process.

(a) Every nonresident, for the privilege of operating a motor vehicle on a public street, road or highway of this state, either personally or through an agent, appoints the Secretary of State, or his or her successor in office, to be his or her agent or attorney-in-fact upon whom may be served all lawful process in any action or proceeding against him or her in any court of record in this state arising out of any accident or collision occurring in the state of West Virginia in which the nonresident was involved: Provided, That in the event process against a nonresident defendant cannot be effected through the Secretary of State, as provided by this section, for the purpose only of service of process, the nonresident motorist shall be considered to have appointed as his or her agent or attorney-in-fact any insurance company which has a contract of automobile or liability insurance with the nonresident defendant.
(b) For purposes of service of process as provided in this section, every insurance company shall be considered the agent or attorney-in-fact of every nonresident motorist insured by that company if the insured nonresident motorist is involved in any accident or collision in this state and service of process cannot be effected upon the nonresident through the office of the Secretary of State. Upon receipt of process as provided in this section, the insurance company may, within thirty days, file an answer or other pleading or take any action allowed by law on behalf of the defendant.
(c) A nonresident operating a motor vehicle in this state, either personally or through an agent, is considered to acknowledge the appointment of the Secretary of State, or, as the case may be, his or her automobile insurance company, as his or her agent or attorney-in-fact, or the agent or attorney-in-fact of his or her administrator, administratrix, executor or executrix in the event the nonresident dies, and furthermore is considered to agree that any process against him or her or against his or her administrator, administratrix, executor or executrix, which is served in the manner provided in this section, shall be of the same legal force and validity as though the nonresident or his or her administrator, administratrix, executor or executrix were personally served with a summons and complaint within this state.
Any action or proceeding may be instituted, continued or maintained on behalf of or against the administrator, administratrix, executor or executrix of any nonresident who dies during or subsequent to an accident or collision resulting from the operation of a motor vehicle in this state by the nonresident or his or her duly authorized agent.
(d) Service of process upon a nonresident defendant shall be made by leaving the original and two copies of both the summons and complaint, together with the bond certificate of the clerk, and the fee required by section two, article one, chapter fifty-nine of this code with the Secretary of State, or in his or her office, and the service shall be sufficient upon the nonresident defendant or, if a natural person, his or her administrator, administratrix, executor or executrix: Provided, That notice of service and a copy of the summons and complaint shall be sent by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, by the Secretary of State to the nonresident defendant. The return receipt signed by the defendant or his or her duly authorized agent shall be attached to the original summons and complaint and filed in the office of the clerk of the court from which process is issued. In the event the registered or certified mail sent by the Secretary of State is refused or unclaimed by the addressee or if the addressee has moved without any forwarding address, the registered or certified mail returned to the Secretary of State, or to his or her office, showing on the mail the stamp of the post office department that delivery has been refused or not claimed or that the addressee has moved without any forwarding address, shall be appended to the original summons and complaint and filed in the clerk's office of the court from which process issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United State postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. The court may order any reasonable continuances to afford the defendant opportunity to defend the action.
(e) The fee remitted to the Secretary of State at the time of service shall be taxed in the costs of the proceeding. The Secretary of State shall keep a record in his or her office of all service of process and the day and hour of service of process.
(f) In the event service of process upon a nonresident defendant cannot be effected through the Secretary of State as provided by this section, service may be made upon the defendant's insurance company. The plaintiff shall file with the clerk of the circuit court an affidavit alleging that the defendant is not a resident of this state; that process directed to the Secretary of State was sent by registered or certified mail, return receipt requested; that the registered or certified mail was returned to the office of the Secretary of State showing the stamp of the post office department that delivery was refused or that the notice was unclaimed or that the defendant addressee moved without any forwarding address; and that the Secretary of State has complied with the provisions of subsection (d) of this section. Upon receipt of process the insurance company may, within thirty days, file an answer or other pleading and take any action allowed by law in the name of the defendant.
(g) The following words and phrases, when used in this article, for the purpose of this article and unless a different intent on the part of the Legislature is apparent from the context, have the following meanings:
(1) 'Duly authorized agent' means and includes, among others, a person who operates a motor vehicle in this state for a nonresident as defined in this section and chapter, in pursuit of business, pleasure or otherwise, or who comes into this state and operates a motor vehicle for, or with the knowledge or acquiescence of, a nonresident; and includes, among others, a member of the family of the nonresident or a person who, at the residence, place of business or post office of the nonresident, usually receives and acknowledges receipt for mail addressed to the nonresident.
(2) 'Motor vehicle' means and includes any self-propelled vehicle, including a motorcycle, tractor and trailer, not operated exclusively upon stationary tracks.
(3) 'Nonresident' means any person who is not a resident of this state or a resident who has moved from the state subsequent to an accident or collision and among others includes a nonresident firm, partnership, corporation or voluntary association, or a firm, partnership, corporation or voluntary association that has moved from the state subsequent to an accident or collision.
(4) 'Nonresident plaintiff or plaintiffs' means a nonresident who institutes an action in a court in this state having jurisdiction against a nonresident in pursuance of the provisions of this article.
(5) 'Nonresident defendant or defendants' means a nonresident motorist who, either personally or through his or her agent, operated a motor vehicle on a public street, highway or road in this state and was involved in an accident or collision which has given rise to a civil action filed in any court in this state.
(6) 'Street', 'road' or 'highway' means the entire width between property lines of every way or place of whatever nature when any part of the street, road or highway is open to the use of the public, as a matter of right, for purposes of vehicular traffic.
(7) 'Insurance company' means any firm, corporation, partnership or other organization which issues automobile insurance.
(h) The provision for service of process in this section is cumulative and nothing contained in this section shall be construed as a bar to the plaintiff in any action from having process in the action served in any other mode and manner provided by law.
§56-3-33. Actions by or against nonresident persons having certain contracts with this state; authorizing Secretary of State to receive process; bond and fees; service of process; definitions; retroactive application.

(a) The engaging by a nonresident, or by his or her duly authorized agent, in any one or more of the acts specified in subdivisions (1) through (7) of this subsection shall be deemed equivalent to an appointment by such nonresident of the Secretary of State, or his or her successor in office, to be his or her true and lawful attorney upon whom may be served all lawful process in any action or proceeding against him or her, in any circuit court in this state, including an action or proceeding brought by a nonresident plaintiff or plaintiffs, for a cause of action arising from or growing out of such act or acts, and the engaging in such act or acts shall be a signification of such nonresident's agreement that any such process against him or her, which is served in the manner hereinafter provided, shall be of the same legal force and validity as though such nonresident were personally served with a summons and complaint within this state:
(1) Transacting any business in this state;
(2) Contracting to supply services or things in this state;
(3) Causing tortious injury by an act or omission in this state;
(4) Causing tortious injury in this state by an act or omission outside this state if he or she regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(5) Causing injury in this state to any person by breach of warranty expressly or impliedly made in the sale of goods outside this state when he or she might reasonably have expected such person to use, consume or be affected by the goods in this state: Provided, That he or she also regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered in this state;
(6) Having an interest in, using or possessing real property in this state; or
(7) Contracting to insure any person, property or risk located within this state at the time of contracting.
(b) When jurisdiction over a nonresident is based solely upon the provisions of this section, only a cause of action arising from or growing out of one or more of the acts specified in subdivisions (1) through (7), subsection (a) of this section may be asserted against him or her.
(c) Service shall be made by leaving the original and two copies of both the summons and the complaint, and the fee required by section two, article one, chapter fifty-nine of this code with the Secretary of State, or in his or her office, and such service shall be sufficient upon such nonresident: Provided, That notice of such service and a copy of the summons and complaint shall forthwith be sent by registered or certified mail, return receipt requested, by a means which may include electronic issuance and acceptance of electronic return receipts, by the Secretary of State to the defendant at his or her nonresident address and the defendant's return receipt signed by himself or herself or his or her duly authorized agent or the registered or certified mail so sent by the Secretary of State which is refused by the addressee and which registered or certified mail is returned to the Secretary of State, or to his or her office, showing thereon the stamp of the post-office department that delivery has been refused, shall be appended to the original summons and complaint and filed therewith in the clerk's office of the court from which process issued. After receiving verification from the United States postal service that acceptance of process, notice or demand has been signed, the Secretary of State shall notify the clerk's office of the court from which the process, notice or demand was issued by a means which may include electronic notification. If the process, notice or demand was refused or undeliverable by the United States postal service the Secretary of State shall return refused or undeliverable mail to the clerk's office of the court from which the process, notice or demand was issued. If any defendant served with summons and complaint fails to appear and defend within thirty days of service, judgment by default may be rendered against him or her at any time thereafter. The court may order such continuances as may be reasonable to afford the defendant opportunity to defend the action or proceeding.
(d) The fee remitted to the Secretary of State at the time of service shall be taxed in the costs of the action or proceeding. The Secretary of State shall keep a record in his or her office of all such process and the day and hour of service thereof.
(e) The following words and phrases, when used in this section, shall for the purpose of this section and unless a different intent be apparent from the context, have the following meanings:
(1) 'Duly authorized agent' means and includes among others a person who, at the direction of or with the knowledge or acquiescence of a nonresident, engages in such act or acts and includes among others a member of the family of such nonresident or a person who, at the residence, place of business or post office of such nonresident, usually receives and receipts for mail addressed to such nonresident.
(2) 'Nonresident' means any person, other than voluntary unincorporated associations, who is not a resident of this state or a resident who has moved from this state subsequent to engaging in such act or acts, and among others includes a nonresident firm, partnership or corporation or a firm, partnership or corporation which has moved from this state subsequent to any of said such act or acts.
(3) 'Nonresident plaintiff or plaintiffs' means a nonresident of this state who institutes an action or proceeding in a circuit court in this state having jurisdiction against a nonresident of this state pursuant to the provisions of this section.
(f) The provision for service of process herein is cumulative and nothing herein contained shall be construed as a bar to the plaintiff in any action or proceeding from having process in such action served in any other mode or manner provided by the law of this state or by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction.
(g) This section shall not be retroactive and the provisions hereof shall not be available to a plaintiff in a cause of action arising from or growing out of any of said acts occurring prior to the effective date of this section."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 451), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4617) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 452), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4617) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4619, Collaborative Family Law Proceedings.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §48-5A-101 and §48-5A-102, all to read as follows:
ARTICLE 5A. COLLABORATIVE FAMILY LAW PROCEEDINGS.
§48-5A-101. Legislative findings.
The Legislature finds that parties to family law actions often have particular needs and interests that may not be addressed through traditional litigation. The Legislature also finds that in the area of family law there may be an alternative approach to dispute resolution which targets settlement from the outset and which employs cooperative negotiation and problem solving that encourages compromise and direct communication among the parties.
§48-5A-102. Collaborative law generally; requesting the Supreme Court to study collaborative law procedures for possible implementation in this state.

(a) Collaborative law is a procedure in which parties who are involved in family law matters and the involved attorneys agree in writing to use their best efforts and make a good-faith attempt to resolve their disputes arising from family law matters on an agreed basis without resorting to judicial intervention, except to have a court approve the settlement agreement, make the legal pronouncements and sign the orders required by law to effectuate the agreement of the parties as the court determines appropriate.
(b) Several states have passed laws adopting collaborative law procedures. The Legislature requests that the Supreme Court of Appeals study the use of collaborative law procedures in the family courts of this state and, should the Court find that the procedures would be an effective alternative approach to dispute resolution in family law matters, promulgate rules for the implementation of the collaborative law procedures. The Legislature further requests that the Supreme Court of Appeals present its findings and any rules promulgated to the Legislature at the regular session of the Legislature, 2009."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4619 - "A Bill to amend the Code of West Virginia, 1931, as amended by adding thereto a new article, designated §48-5A-101 and §48-5A-102, all relating to requesting the Supreme Court of Appeals to study collaborative law procedures and to present its finding to the Legislature; and providing legislative findings."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 453), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4619) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 454), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4619) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for S. B. 571, Relating to certain firefighters' workers' compensation benefits.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Jenkins, Minard and McKenzie.
A message from the Senate, by
The Clerk of the Senate, announced the passage by the Senate and requested the concurrence of the House of Delegates in the passage, of
Com. Sub. for S. B. 573 - "A Bill to amend and reenact §18A-4-2 and §18A-4-8a of the Code of West Virginia, 1931, as amended, all relating to school personnel salary increases; increasing minimum salaries of public school teachers; increasing salary bonuses for classroom teachers; and increasing minimum salaries of school service personnel."
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the bill (Com. Sub. for S. B. 573) to a committee was dispensed with, and it was taken up for immediate consideration, read a first time and ordered to second reading.
Delegate DeLong moved that the constitutional rule requiring the bill to be fully and distinctly read on three different days be dispensed with.
On this question, the yeas and nays were taken (Roll No. 455), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, four fifths of the members present having voted in the affirmative, the constitutional rule was dispensed with.
The bill was then read a second time.
On motion of Delegates M. Poling and White, the bill was amended on page one, by striking out the enacting section and inserting in lieu thereof a new enacting section to read as follows:
"That §18A-4-2, §18A-4-3, §18A-4-8 and §18A-4-8a of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows" followed by a colon.
And on page nine, following section §18A-4-3, by striking out the remainder of the bill and inserting in lieu thereof the following:
"ARTICLE 4. SALARIES, WAGES AND OTHER BENEFITS.
§18A-4-8. Employment term and class titles of service personnel; definitions.

(a) The purpose of this section is to establish an employment term and class titles for service personnel. The employment term for service personnel may be no less than ten months. A month is defined as twenty employment days: Provided, That the county board may contract with all or part of these service personnel for a longer term. The beginning and closing dates of the ten-month employment term may not exceed forty-three weeks.
(b) Service personnel employed on a yearly or twelve-month basis may be employed by calendar months. Whenever there is a change in job assignment during the school year, the minimum pay scale and any county supplement are applicable.
(c) Service personnel employed in the same classification for more than the two hundred day minimum employment term shall be paid for additional employment at a daily rate of not less than the daily rate paid for the two hundred day minimum employment term.
(d) No service employee, without his or her agreement, may be required to report for work more than five days per week and no part of any working day may be accumulated by the employer for future work assignments, unless the employee agrees thereto.
(e) If an employee whose regular work week is scheduled from Monday through Friday agrees to perform any work assignments on a Saturday or Sunday, the employee shall be paid for at least one-half day of work for each day he or she reports for work, and if the employee works more than three and one-half hours on any Saturday or Sunday, he or she shall be paid for at least a full day of work for each day.
(f) Custodians, aides, maintenance, office and school lunch employees required to work a daily work schedule that is interrupted, that is, who do not work a continuous period in one day, shall be paid additional compensation equal to at least one eighth of their total salary as provided by their state minimum salary and any county pay supplement, and payable entirely from county funds: Provided, That when engaged in duties of transporting students exclusively, aides shall not be regarded as working an interrupted schedule. Maintenance personnel are defined as personnel who hold a classification title other than in a custodial, aide, school lunch, office or transportation category as provided in section one, article one of this chapter.
(g) Upon the change in classification or upon meeting the requirements of an advanced classification of or by any employee, the employee's salary shall be made to comply with the requirements of this article, and to any county salary schedule in excess of the minimum requirements of this article, based upon the employee's advanced classification and allowable years of employment.
(h) An employee's contract as provided in section five, article two of this chapter shall state the appropriate monthly salary the employee is to be paid, based on the class title as provided in this article and any county salary schedule in excess of the minimum requirements of this article.
(i) The column heads of the state minimum pay scale and class titles, set forth in section eight-a of this article, are defined as follows:
(1) 'Pay grade' means the monthly salary applicable to class titles of service personnel;
(2) 'Years of employment' means the number of years which an employee classified as service personnel has been employed by a board in any position prior to or subsequent to the effective date of this section and including service in the armed forces of the United States, if the employee were employed at the time of his or her induction. For the purpose of section eight-a of this article, years of employment shall be limited to the number of years shown and allowed under the state minimum pay scale as set forth in section eight-a of this article;
(3) 'Class title' means the name of the position or job held by service personnel;
(4) 'Accountant I' means personnel employed to maintain payroll records and reports and perform one or more operations relating to a phase of the total payroll;
(5) 'Accountant II' means personnel employed to maintain accounting records and to be responsible for the accounting process associated with billing, budgets, purchasing and related operations;
(6) 'Accountant III' means personnel who are employed in the county board office to manage and supervise accounts payable and/or payroll procedures;
(7) 'Accounts payable supervisor' means personnel who are employed in the county board office who have primary responsibility for the accounts payable function, which may include the supervision of other personnel, and who have either completed twelve college hours of accounting courses from an accredited institution of higher education or have at least eight years of experience performing progressively difficult accounting tasks;
(8) 'Aide I' means those personnel selected and trained for teacher-aide classifications such as monitor aide, clerical aide, classroom aide or general aide;
(9) 'Aide II' means those personnel referred to in the 'Aide I' classification who have completed a training program approved by the state board, or who hold a high school diploma or have received a general educational development certificate. Only personnel classified in an Aide II class title may be employed as an aide in any special education program;
(10) 'Aide III' means those personnel referred to in the 'Aide I' classification who hold a high school diploma or a general educational development certificate and have completed six semester hours of college credit at an institution of higher education or are employed as an aide in a special education program and have one year's experience as an aide in special education;
(11) 'Aide IV' means personnel referred to in the 'Aide I' classification who hold a high school diploma or a general educational development certificate and who have completed eighteen hours of state board-approved college credit at a regionally accredited institution of higher education, or who have completed fifteen hours of state board-approved college credit at a regionally accredited institution of higher education and successfully completed an in-service training program determined by the state board to be the equivalent of three hours of college credit;
(12) 'Audiovisual technician' means personnel employed to perform minor maintenance on audiovisual equipment, films, supplies and the filling of requests for equipment;
(13) 'Auditor' means personnel employed to examine and verify accounts of individual schools and to assist schools and school personnel in maintaining complete and accurate records of their accounts;
(14) 'Autism mentor' means personnel who work with autistic students and who meet standards and experience to be determined by the state board: Provided, That if any employee has held or holds an aide title and becomes employed as an autism mentor, the employee shall hold a multiclassification status that includes aide and autism mentor titles, in accordance with section eight-b of this article;
(15) 'Braille or sign language specialist' means personnel employed to provide braille and/or sign language assistance to students: Provided, That if any employee has held or holds an aide title and becomes employed as a braille or sign language specialist, the employee shall hold a multiclassification status that includes aide and braille or sign language specialist title, in accordance with section eight-b of this article;
(16) 'Bus operator I' means personnel employed to operate school buses and other school transportation vehicles as provided by the state board;
(17) 'Bus operator II' means personnel employed to operate school buses and other school transportation vehicles as provided by the state board that have accumulated at least twenty years service as a bus operator;
(17) (18) 'Buyer' means personnel employed to review and write specifications, negotiate purchase bids and recommend purchase agreements for materials and services that meet predetermined specifications at the lowest available costs;
(18) (19) 'Cabinetmaker' means personnel employed to construct cabinets, tables, bookcases and other furniture;
(19) (20) 'Cafeteria manager' means personnel employed to direct the operation of a food services program in a school, including assigning duties to employees, approving requisitions for supplies and repairs, keeping inventories, inspecting areas to maintain high standards of sanitation, preparing financial reports and keeping records pertinent to food services of a school;
(20) (21) 'Carpenter I' means personnel classified as a carpenter's helper;
(21) (22) 'Carpenter II' means personnel classified as a journeyman carpenter;
(22) (23) 'Chief mechanic' means personnel employed to be responsible for directing activities which ensure that student transportation or other board-owned vehicles are properly and safely maintained;
(23) (24) 'Clerk I' means personnel employed to perform clerical tasks;
(24) (25) 'Clerk II' means personnel employed to perform general clerical tasks, prepare reports and tabulations and operate office machines;
(25) (26) 'Computer operator' means qualified personnel employed to operate computers;
(26) (27) 'Cook I' means personnel employed as a cook's helper;
(27) (28) 'Cook II' means personnel employed to interpret menus, to prepare and serve meals in a food service program of a school and shall include personnel who have been employed as a 'Cook I' for a period of four years, if the personnel have not been elevated to this classification within that period of time;
(28) (29) 'Cook III' means personnel employed to prepare and serve meals, make reports, prepare requisitions for supplies, order equipment and repairs for a food service program of a school system;
(29) (30) 'Crew leader' means personnel employed to organize the work for a crew of maintenance employees to carry out assigned projects;
(30) (31) 'Custodian I' means personnel employed to keep buildings clean and free of refuse;
(31) (32) 'Custodian II' means personnel employed as a watchman or groundsman;
(32) (33) 'Custodian III' means personnel employed to keep buildings clean and free of refuse, to operate the heating or cooling systems and to make minor repairs;
(33) (34) 'Custodian IV' means personnel employed as head custodians. In addition to providing services as defined in 'custodian III,' their duties may include supervising other custodian personnel;
(34) (35) 'Director or coordinator of services' means personnel who are assigned to direct a department or division. Nothing in this subdivision may prohibit professional personnel or professional educators as defined in section one, article one of this chapter, from holding this class title, but professional personnel may not be defined or classified as service personnel unless the professional personnel held a service personnel title under this section prior to holding class title of 'director or coordinator of services.' Directors or coordinators of service positions shall be classified as either a professional personnel or service personnel position for state aid formula funding purposes and funding for directors or coordinators of service positions shall be based upon the employment status of the director or coordinator either as a professional personnel or service personnel;
(35) (36) 'Draftsman' means personnel employed to plan, design and produce detailed architectural/engineering drawings;
(36) (37) 'Electrician I' means personnel employed as an apprentice electrician helper or who holds an electrician helper license issued by the state fire marshal;
(37) (38) 'Electrician II' means personnel employed as an electrician journeyman or who holds a journeyman electrician license issued by the state fire marshal;
(38) (39) 'Electronic technician I' means personnel employed at the apprentice level to repair and maintain electronic equipment;
(39) (40) 'Electronic technician II' means personnel employed at the journeyman level to repair and maintain electronic equipment;
(40) (41) 'Executive secretary' means personnel employed as the county school superintendent's secretary or as a secretary who is assigned to a position characterized by significant administrative duties;
(41) (42) 'Food services supervisor' means qualified personnel not defined as professional personnel or professional educators in section one, article one of this chapter, employed to manage and supervise a county school system's food service program. The duties would include preparing in-service training programs for cooks and food service employees, instructing personnel in the areas of quantity cooking with economy and efficiency and keeping aggregate records and reports;
(42) (43) 'Foremen' means skilled persons employed for supervision of personnel who work in the areas of repair and maintenance of school property and equipment;
(43) (44)'General maintenance' means personnel employed as helpers to skilled maintenance employees and to perform minor repairs to equipment and buildings of a county school system;
(44) (45) 'Glazier' means personnel employed to replace glass or other materials in windows and doors and to do minor carpentry tasks;
(45) (46) 'Graphic artist' means personnel employed to prepare graphic illustrations;
(46) (47) 'Groundsmen' means personnel employed to perform duties that relate to the appearance, repair and general care of school grounds in a county school system. Additional assignments may include the operation of a small heating plant and routine cleaning duties in buildings;
(47) (48) 'Handyman' means personnel employed to perform routine manual tasks in any operation of the county school system;
(48) (49) 'Heating and air conditioning mechanic I' means personnel employed at the apprentice level to install, repair and maintain heating and air conditioning plants and related electrical equipment;
(49) (50) 'Heating and air conditioning mechanic II' means personnel employed at the journeyman level to install, repair and maintain heating and air conditioning plants and related electrical equipment;
(50) (51) 'Heavy equipment operator' means personnel employed to operate heavy equipment;
(51) (52) 'Inventory supervisor' means personnel who are employed to supervise or maintain operations in the receipt, storage, inventory and issuance of materials and supplies;
(52) (53) 'Key punch operator' means qualified personnel employed to operate key punch machines or verifying machines;
(53) (54) 'Locksmith' means personnel employed to repair and maintain locks and safes;
(54) (55) 'Lubrication man' means personnel employed to lubricate and service gasoline or diesel-powered equipment of a county school system;
(55) (56) 'Machinist' means personnel employed to perform machinist tasks which include the ability to operate a lathe, planer, shaper, threading machine and wheel press. These personnel should also have, the ability to work from blueprints and drawings;
(56) (57) 'Mail clerk' means personnel employed to receive, sort, dispatch, deliver or otherwise handle letters, parcels and other mail;
(57) (58) 'Maintenance clerk' means personnel employed to maintain and control a stocking facility to keep adequate tools and supplies on hand for daily withdrawal for all school maintenance crafts;
(58) (59) 'Mason' means personnel employed to perform tasks connected with brick and block laying and carpentry tasks related to such laying;
(59) (60) 'Mechanic' means personnel employed who can independently perform skilled duties in the maintenance and repair of automobiles, school buses and other mechanical and mobile equipment to use in a county school system;
(60) (61) 'Mechanic assistant' means personnel employed as a mechanic apprentice and helper;
(61) (62) 'Multiclassification' means personnel employed to perform tasks that involve the combination of two or more class titles in this section. In these instances the minimum salary scale shall be the higher pay grade of the class titles involved;
(62) (63) 'Office equipment repairman I' means personnel employed as an office equipment repairman apprentice or helper;
(63) (64) 'Office equipment repairman II' means personnel responsible for servicing and repairing all office machines and equipment. Personnel are responsible for parts being purchased necessary for the proper operation of a program of continuous maintenance and repair;
(64) (65) 'Painter' means personnel employed to perform duties of painting, finishing and decorating of wood, metal and concrete surfaces of buildings, other structures, equipment, machinery and furnishings of a county school system;
(65) (66) 'Paraprofessional' means a person certified pursuant to section two-a, article three of this chapter to perform duties in a support capacity including, but not limited to, facilitating in the instruction and direct or indirect supervision of pupils under the direction of a principal, a teacher or another designated professional educator: Provided, That no person employed on the effective date of this section in the position of an aide may be reduced in force or transferred to create a vacancy for the employment of a paraprofessional: Provided, however, That if any employee has held or holds an aide title and becomes employed as a paraprofessional, the employee shall hold a multiclassification status that includes aide and paraprofessional titles in accordance with section eight-b of this article: Provided further, That once an employee who holds an aide title becomes certified as a paraprofessional and is required to perform duties that may not be performed by an aide without paraprofessional certification, he or she shall receive the paraprofessional title pay grade;
(66) (67) 'Payroll supervisor' means personnel who are employed in the county board office who have primary responsibility for the payroll function, which may include the supervision of other personnel, and who have either completed twelve college hours of accounting from an accredited institution of higher education or have at least eight years of experience performing progressively difficult accounting tasks;
(67) (68) 'Plumber I' means personnel employed as an apprentice plumber and helper;
(68) (69) 'Plumber II' means personnel employed as a journeyman plumber;
(69) (70) 'Printing operator' means personnel employed to operate duplication equipment, and as required, to cut, collate, staple, bind and shelve materials;
(70) (71) 'Printing supervisor' means personnel employed to supervise the operation of a print shop;
(71) (72) 'Programmer' means personnel employed to design and prepare programs for computer operation;
(72) (73) 'Roofing/sheet metal mechanic' means personnel employed to install, repair, fabricate and maintain roofs, gutters, flashing and duct work for heating and ventilation;
(73) (74) 'Sanitation plant operator' means personnel employed to operate and maintain a water or sewage treatment plant to ensure the safety of the plant's effluent for human consumption or environmental protection;
(74) (75) 'School bus supervisor' means qualified personnel employed to assist in selecting school bus operators and routing and scheduling of school buses, operate a bus when needed, relay instructions to bus operators, plan emergency routing of buses and promoting good relationships with parents, pupils, bus operators and other employees;
(75) (76) 'Secretary I' means personnel employed to transcribe from notes or mechanical equipment, receive callers, perform clerical tasks, prepare reports and operate office machines;
(76) (77) 'Secretary II' means personnel employed in any elementary, secondary, kindergarten, nursery, special education, vocational or any other school as a secretary. The duties may include performing general clerical tasks, transcribing from notes or stenotype or mechanical equipment or a sound-producing machine, preparing reports, receiving callers and referring them to proper persons, operating office machines, keeping records and handling routine correspondence. There is nothing implied in this subdivision that would prevent the employees from holding or being elevated to a higher classification;
(77) (78) 'Secretary III' means personnel assigned to the county board office administrators in charge of various instructional, maintenance, transportation, food services, operations and health departments, federal programs or departments with particular responsibilities of purchasing and financial control or any personnel who have served in a position which meets the definition of 'secretary II' or 'secretary III' in this section for eight years;
(78) (79) 'Supervisor of maintenance' means skilled personnel not defined as professional personnel or professional educators as in section one, article one of this chapter. The responsibilities would include directing the upkeep of buildings and shops, issuing instructions to subordinates relating to cleaning, repairs and maintenance of all structures and mechanical and electrical equipment of a board;
(79) (80) 'Supervisor of transportation' means qualified personnel employed to direct school transportation activities, properly and safely, and to supervise the maintenance and repair of vehicles, buses and other mechanical and mobile equipment used by the county school system;
(80) (81) 'Switchboard operator-receptionist' means personnel employed to refer incoming calls, to assume contact with the public, to direct and to give instructions as necessary, to operate switchboard equipment and to provide clerical assistance;
(82 'Technology system specialist' means personnel who has expertise in technology fields and meets the education and certification requirements determined by the state board and is employed to support and maintain local area networks, servers, computer workstations and other computer related systems and technologies;
(81) (83) 'Truck driver' means personnel employed to operate light or heavy duty gasoline and diesel-powered vehicles;
(82) (84) 'Warehouse clerk' means personnel employed to be responsible for receiving, storing, packing and shipping goods;
(83) (85) 'Watchman' means personnel employed to protect school property against damage or theft. Additional assignments may include operation of a small heating plant and routine cleaning duties;
(84) (86) 'Welder' means personnel employed to provide acetylene or electric welding services for a school system; and
(85) (87) 'WVEIS data entry and administrative clerk' means personnel employed to work under the direction of a school principal to assist the school counselor or counselors in the performance of administrative duties, to perform data entry tasks on the West Virginia education information system, and to perform other administrative duties assigned by the principal.
(j) In addition to the compensation provided for in section eight-a of this article, for service personnel, each service employee is, notwithstanding any provisions in this code to the contrary, entitled to all service personnel employee rights, privileges and benefits provided under this or any other chapter of this code without regard to the employee's hours of employment or the methods or sources of compensation.
(k) Service personnel whose years of employment exceed the number of years shown and provided for under the state minimum pay scale set forth in section eight-a of this article may not be paid less than the amount shown for the maximum years of employment shown and provided for in the classification in which he or she is employed.
(l) The county boards shall review each service personnel employee job classification annually and shall reclassify all service employees as required by the job classifications. The state superintendent of schools may withhold state funds appropriated pursuant to this article for salaries for service personnel who are improperly classified by the county boards. Further, the state superintendent shall order county boards to correct immediately any improper classification matter and with the assistance of the attorney general shall take any legal action necessary against any county board to enforce the order.
(m) No service employee, without his or her written consent, may be reclassified by class title, nor may a service employee, without his or her written consent, be relegated to any condition of employment which would result in a reduction of his or her salary, rate of pay, compensation or benefits earned during the current fiscal year or which would result in a reduction of his or her salary, rate of pay, compensation or benefits for which he or she would qualify by continuing in the same job position and classification held during that fiscal year and subsequent years.
(n) Any board failing to comply with the provisions of this article may be compelled to do so by mandamus, and is liable to any party prevailing against the board for court costs and the prevailing party's reasonable attorney fee, as determined and established by the court.
(o) Notwithstanding any provisions in this code to the contrary, service personnel who hold a continuing contract in a specific job classification and who are physically unable to perform the job's duties as confirmed by a physician chosen by the employee shall be given priority status over any employee not holding a continuing contract in filling other service personnel job vacancies if qualified as provided in section eight-e of this article.
§18A-4-8a. Service personnel minimum monthly salaries.
(a) The minimum monthly pay for each service employee whose employment is for a period of more than three and one-half hours a day shall be at least the amounts indicated in the 'state minimum pay scale pay grade' and the minimum monthly pay for each service employee whose employment is for a period of three and one-half hours or less a day shall be at least one-half the amount indicated in the 'state minimum pay scale pay grade' set forth in this section.
STATE MINIMUM PAY SCALE PAY GRADE
Years
Exp.
PAY GRADE
    B C D E F G H
0 1,507 1,528 1,569 1,621 1,673 1,735 1,766 1,838
1 1,539 1,560 1,601 1,653 1,705 1,767 1,798 1,870
2 1,571 1,592 1,633 1,685 1,737 1,799 1,830 1,902
3 1,603 1,624 1,665 1,717 1,769 1,831 1,862 1,934
4 1,635 1,656 1,697 1,749 1,801 1,863 1,894 1,967
5 1,667 1,688 1,729 1,781 1,833 1,895 1,926 1,999
6 1,699 1,720 1,762 1,813 1,865 1,927 1,958 2,031
7 1,732 1,752 1,794 1,845 1,897 1,959 1,990 2,063
8 1,764 1,784 1,826 1,877 1,929 1,991 2,022 2,095
9 1,796 1,816 1,858 1,910 1,961 2,023 2,054 2,127
10 1,828 1,849 1,890 1,942 1,993 2,056 2,087 2,159
11 1,860 1,881 1,922 1,974 2,025 2,088 2,119 2,191
12 1,892 1,913 1,954 2,006 2,058 2,120 2,151 2,223
13 1,924 1,945 1,986 2,038 2,090 2,152 2,183 2,255
14 1,956 1,977 2,018 2,070 2,122 2,184 2,215 2,287
15 1,988 2,009 2,050 2,102 2,154 2,216 2,247 2,319
16 2,020 2,041 2,082 2,134 2,186 2,248 2,279 2,352
17 2,052 2,073 2,115 2,166 2,218 2,280 2,311 2,384
18 2,084 2,105 2,147 2,198 2,250 2,312 2,343 2,416
19 2,117 2,137 2,179 2,230 2,282 2,344 2,375 2,448
20 2,149 2,169 2,211 2,263 2,314 2,376 2,407 2,480
21 2,181 2,201 2,243 2,295 2,346 2,408 2,439 2,512
22 2,213 2,234 2,275 2,327 2,378 2,441 2,472 2,544
23 2,245 2,266 2,307 2,359 2,411 2,473 2,504 2,576
24 2,277 2,298 2,339 2,391 2,443 2,505 2,536 2,608
25 2,309 2,330 2,371 2,423 2,475 2,537 2,568 2,640
26 2,341 2,362 2,403 2,455 2,507 2,569 2,600 2,672
27 2,373 2,394 2,435 2,487 2,539 2,601 2,632 2,704
28 2,405 2,426 2,467 2,519 2,571 2,633 2,664 2,737
29 2,437 2,458 2,500 2,551 2,603 2,665 2,696 2,769
30 2,470 2,490 2,532 2,583 2,635 2,697 2,728 2,801
31 2,502 2,522 2,564 2,615 2,667 2,729 2,760 2,833
32 2,534 2,554 2,596 2,648 2,699 2,761 2,792 2,865
33 2,566 2,586 2,628 2,680 2,731 2,793 2,825 2,897
34 2,598 2,619 2,660 2,712 2,763 2,826 2,857 2,929
35 2,630 2,651 2,692 2,744 2,796 2,858 2,889 2,961
36 2,662 2,683 2,724 2,776 2,828 2,890 2,921 2,993
37 2,694 2,715 2,756 2,808 2,860 2,922 2,953 3,025
38 2,726 2,747 2,788 2,840 2,892 2,954 2,985 3,057
39 2,758 2,779 2,820 2,872 2,924 2,986 3,017 3,089
40 2,790 2,811 2,852 2,904 2,956 3,018 3,049 3,122
STATE MINIMUM PAY SCALE PAY GRADE
Years
Exp
.
PAY GRADE
  A B C D E F G H
0
1,577
1,598 1,639 1,691 1,743 1,805 1,836 1,908
1 1,609 1,630 1,671 1,723 1,775 1,837 1,868 1,940
2 1,641 1,662 1,703 1,755 1,807 1,869 1,900 1,972
3 1,673 1,694 1,735 1,787 1,839 1,901 1,932 2,004
4 1,705 1,726 1,767 1,819 1,871 1,933 1,964 2,037
5 1,737 1,758 1,799 1,851 1,903 1,965 1,996 2,069
6 1,769 1,790 1,832 1,883 1,935 1,997 2,028 2,101
7 1,802 1,822 1,864 1,915 1,967 2,029 2,060 2,133
8 1,834 1,854 1,896 1,947 1,999 2,061 2,092 2,165
9 1,866 1,886 1,928 1,980 2,031 2,093 2,124 2,197
10 1,898 1,919 1,960 2,012 2,063 2,126 2,157 2,229
11 1,930 1,951 1,992 2,044 2,095 2,158 2,189 2,261
12 1,962 1,983 2,024 2,076 2,128 2,190 2,221 2,293
13 1,994 2,015 2,056 2,108 2,160 2,222 2,253 2,325
14 2,026 2,047 2,088 2,140 2,192 2,254 2,285 2,357
15 2,058 2,079 2,120 2,172 2,224 2,286 2,317 2,389
16 2,090 2,111 2,152 2,204 2,256 2,318 2,349 2,422
17 2,122 2,143 2,185 2,236 2,288 2,350 2,381 2,454
18 2,154 2,175 2,217 2,268 2,320 2,382 2,413 2,486
19 2,187 2,207 2,249 2,300 2,352 2,414 2,445 2,518
20 2,219 2,239 2,281 2,333 2,384 2,446 2,477 2,550
21 2,251 2,271 2,313 2,365 2,416 2,478 2,509 2,582
22 2,283 2,304 2,345 2,397 2,448 2,511 2,542 2,614
23 2,315 2,336 2,377 2,429 2,481 2,543 2,574 2,646
24 2,347 2,368 2,409 2,461 2,513 2,575 2,606 2,678
25 2,379 2,400 2,441 2,493 2,545 2,607 2,638 2,710
26 2,411 2,432 2,473 2,525 2,577 2,639 2,670 2,742
27 2,443 2,464 2,505 2,557 2,609 2,671 2,702 2,774
28 2,475 2,496 2,537 2,589 2,641 2,703
2,734 2,807
29 2,507 2,528 2,570 2,621 2,673 2,735 2,766 2,839
30 2,540 2,560 2,602 2,653 2,705 2,767 2,798 2,871
31 2,572 2,592 2,634 2,685 2,737 2,799 2,830 2,903
32 2,604 2,624 2,666 2,718 2,769 2,831 2,862 2,935
33 2,636 2,656 2,698 2,750 2,801 2,863 2,895 2,967
34 2,668 2,689 2,730 2,782 2,833 2,896 2,927 2,999
35 2,700 2,721 2,762 2,814 2,866 2,928 2,959 3,031
36 2,732 2,753 2,794 2,846 2,898 2,960 2,991 3,063
37 2,764 2,785 2,826 2,878 2,930 2,992 3,023 3,095
38 2,796 2,817 2,858 2,910 2,962 3,024 3,055 3,127
39 2,828 2,849 2,890 2,942 2,994 3,056 3,087 3,159
40 2,860 2,881 2,922 2,974 3,026 3,088 3,119 3,192
CLASS TITLE
PAY GRADE

Accountant ID
Accountant II E
Accountant III F
Accounts Payable Supervisor G
Aide I A
Aide II B
Aide III C
Aide IV D
Audiovisual Technician C
Auditor G
Autism Mentor F
Braille or Sign Language Specialist E
Bus Operator D
Bus Operator IIE
BuyerF
Cabinetmaker G
Cafeteria Manager D E
Carpenter I E
Carpenter II F
Chief MechanicG
Clerk IB
Clerk II C
Computer Operator E
Cook I A
Cook II B
Cook III C
Crew Leader F
Custodian I A
Custodian II B
Custodian III C
Custodian IVD
Director or Coordinator of Services H
Draftsman D
Electrician I F
Electrician II G
Electronic Technician I F
Electronic Technician II G
Executive Secretary G
Food Services SupervisorG
Foreman. G
General Maintenance C
Glazier D
Graphic Artist D
Groundsman B
Handyman B
Heating and Air Conditioning Mechanic I E
Heating and Air Conditioning Mechanic II G
Heavy Equipment Operator E
Inventory Supervisor D
Key Punch Operator B
Licensed Practical Nurse F
Locksmith G
Lubrication Man C
Machinist F
Mail Clerk D
Maintenance Clerk .C
Mason G
Mechanic F
Mechanic Assistant E
Office Equipment Repairman I F
Office Equipment Repairman II G
Painter E
Paraprofessional F
Payroll Supervisor G
Plumber I E
Plumber II G
Printing Operator B
Printing Supervisor D
Programmer H
Roofing/Sheet Metal Mechanic F
Sanitation Plant Operator G
School Bus Supervisor E
Secretary I D
Secretary II E
Secretary III F
Supervisor of Maintenance H
Supervisor of Transportation H
Switchboard Operator-Receptionist D
Technology system specialist F
Truck Driver D
Warehouse Clerk C
Watchman B
Welder F
WVEIS Data Entry and Administrative Clerk B
(b) An additional twelve dollars per month shall be added to the minimum monthly pay of each service employee who holds a high school diploma or its equivalent.
(c) An additional eleven dollars per month also shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds twelve college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(2) A service employee who holds twenty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(3) A service employee who holds thirty-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(4) A service employee who holds forty-eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(5) A service employee who holds sixty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(6) A service employee who holds seventy-two college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(7) A service employee who holds eighty-four college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(8) A service employee who holds ninety-six college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(9) A service employee who holds one hundred eight college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(10) A service employee who holds one hundred twenty college hours or comparable credit obtained in a trade or vocational school as approved by the state board;
(d) An additional forty dollars per month also shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds an associate's degree;
(2) A service employee who holds a bachelor's degree;
(3) A service employee who holds a master's degree;
(4) A service employee who holds a doctorate degree.
(e) An additional eleven dollars per month shall be added to the minimum monthly pay of each service employee for each of the following:
(1) A service employee who holds a bachelor's degree plus fifteen college hours;
(2) A service employee who holds a master's degree plus fifteen college hours;
(3) A service employee who holds a master's degree plus thirty college hours;
(4) A service employee who holds a master's degree plus forty-five college hours; and
(5) A service employee who holds a master's degree plus sixty college hours.
(f) When any part of a school service employee's daily shift of work is performed between the hours of six o'clock p.m. and five o'clock a.m. the following day, the employee shall be paid no less than an additional ten dollars per month and one half of the pay shall be paid with local funds.
(g) Any service employee required to work on any legal school holiday shall be paid at a rate one and one-half times the employee's usual hourly rate.
(h) Any full-time service personnel required to work in excess of their normal working day during any week which contains a school holiday for which they are paid shall be paid for the additional hours or fraction of the additional hours at a rate of one and one-half times their usual hourly rate and paid entirely from county board funds.
(I) No service employee may have his or her daily work schedule changed during the school year without the employee's written consent and the employee's required daily work hours may not be changed to prevent the payment of time and one-half wages or the employment of another employee.
(j) The minimum hourly rate of pay for extra duty assignments as defined in section eight-b of this article shall be no less than one seventh of the employee's daily total salary for each hour the employee is involved in performing the assignment and paid entirely from local funds: Provided, That an alternative minimum hourly rate of pay for performing extra duty assignments within a particular category of employment may be utilized used if the alternate hourly rate of pay is approved both by the county board and by the affirmative vote of a two-thirds majority of the regular full-time employees within that classification category of employment within that county: Provided, however, That the vote shall be by secret ballot if requested by a service personnel employee within that classification category within that county. The salary for any fraction of an hour the employee is involved in performing the assignment shall be prorated accordingly. When performing extra duty assignments, employees who are regularly employed on a one-half day salary basis shall receive the same hourly extra duty assignment pay computed as though the employee were employed on a full- day salary basis.
(k) The minimum pay for any service personnel employees engaged in the removal of asbestos material or related duties required for asbestos removal shall be their regular total daily rate of pay and no less than an additional three dollars per hour or no less than five dollars per hour for service personnel supervising asbestos removal responsibilities for each hour these employees are involved in asbestos related duties. Related duties required for asbestos removal include, but are not limited to, travel, preparation of the work site, removal of asbestos decontamination of the work site, placing and removal of equipment and removal of structures from the site. If any member of an asbestos crew is engaged in asbestos related duties outside of the employee's regular employment county, the daily rate of pay shall be no less than the minimum amount as established in the employee's regular employment county for asbestos removal and an additional thirty dollars per each day the employee is engaged in asbestos removal and related duties. The additional pay for asbestos removal and related duties shall be payable entirely from county funds. Before service personnel employees may be utilized used in the removal of asbestos material or related duties, they shall have completed a federal Environmental Protection Act approved training program and be licensed. The employer shall provide all necessary protective equipment and maintain all records required by the Environmental Protection Act.
(l) For the purpose of qualifying for additional pay as provided in section eight, article five of this chapter, an aide shall be considered to be exercising the authority of a supervisory aide and control over pupils if the aide is required to supervise, control, direct, monitor, escort or render service to a child or children when not under the direct supervision of certificated certified professional personnel within the classroom, library, hallway, lunchroom, gymnasium, school building, school grounds or wherever supervision is required. For purposes of this section, 'under the direct supervision of certificated certified professional personnel' means that certificated certified professional personnel is present, with and accompanying the aide."
There being no further amendments, the bill was then ordered to third reading.
Delegates Anderson, Ennis, Moye, Pethtel, Proudfoot, Rowan, Schadler, Schoen, Spencer, Stephens, Mr. Speaker, Mr. Thompson, Varner and White requested to be excused from voting under House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
The bill was then read a third time and put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 456), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 573) passed.
On motion of Delegates M. Poling and White, the title of the bill was amended to read as follows:
Com. Sub. for S. B. 573 - "A Bill to amend and reenact §18A-4-2, §18A-4-3, §18A-4-8 and §18A-4-8a of the Code of West Virginia, 1931, as amended, all relating to school personnel salary increases; increasing minimum salaries of public school teachers; increasing salary increment for principals and assistant principals; providing for certain class titles and pay grades; and increasing minimum salaries of school service personnel."
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 457), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 573) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
H. B. 4150, Requiring the purchasing of American-made flags with state funds.
Special Calendar

Unfinished Business

S. C. R. 18, Requesting Division of Highways name bridge in Martinsburg, Berkeley County, "Dr. C. Vincent Townsend, Sr., Bridge"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

Com. Sub. for S. B. 280, Modifying Downtown Redevelopment Act; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 458), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 280) passed.
An amendment to the title of the bill, recommended by the Committee on Finance, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 280 - "A Bill to amend and reenact §8-38-3, §8-38-5, §8-38-7, §8-38-12 and §8-38-16 of the Code of West Virginia, 1931, as amended, all relating to the municipal economic opportunity development district act generally; adding certain remediation projects to those for which special district excise taxes may be authorized upon meeting certain requirements; clarifying the rates of the tax; authorizing the Tax Commissioner to require the electronic filing of returns and electronic payment of the tax; providing for the sharing of tax information and confidentiality of such information; and requiring additional deposits of the tax into the general revenue fund in certain circumstances."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 11:50 a.m., on motion of Delegate DeLong, the House of Delegates recessed until 1:30 p.m., and reconvened at that time.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4032, Relating to payment of wages through a direct deposit system.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On pages two and three, section three, lines thirteen through nineteen, by striking out all of subdivision (3) and inserting in lieu thereof a new subdivision (3), to read as follows:
"(3) By deposit or electronic transfer of immediately available funds into an employee's payroll card account in a federally insured depository institution. The term 'payroll card account' means an account in a federally insured depository institution that is directly or indirectly established through an employer and to which electronic fund transfers of the employee's wages, salary, commissions or other compensation are made on a recurring basis, whether the account is operated or managed by the employer, a third-party payroll processor, a depository institution or another person. 'Payroll card' means a card, code or combination thereof or other means of access to an employee's payroll card account, by which the employee may initiate electronic fund transfers or use a payroll card to make purchases or payments. Payment of employee compensation by means of a payroll card must be agreed upon in writing by both the person, form or corporation paying the compensation and the person being compensated."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4032 - "A Bill to amend and reenact §21-5-3 of the Code of West Virginia, 1931, as amended, relating to payment of wages through a direct deposit system using an electronic payment card or other means of electronic transfer; defining terms; and requiring written agreement to use the payroll card."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 459), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Boggs, Doyle, Mahan, Marshall, Shook, Spencer and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4032) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4402, Relating to compulsive gambling.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §29-22A-10C and §29-22A-19 of the Code of West Virginia, 1931, as amended, be amended and reenacted to read as follows:
ARTICLE 22A. RACETRACK VIDEO LOTTERY.
§29-22A-10c. Surcharge; Capital Reinvestment Fund.

(a) For all fiscal years beginning on or after the first day of July, two thousand one, there shall be imposed a surcharge of ten percent against the excess of total net terminal income generated from a licensed racetrack for that fiscal year over total net terminal income from that licensed racetrack for the fiscal year ending the thirtieth day of June, two thousand one.
(b) A Capital Reinvestment Fund is hereby created within the lottery fund. Forty-two percent of the surcharge amount attributable to each racetrack shall be retained by the commission and deposited into a separate Capital Reinvestment Account for that licensed racetrack. For each dollar expended by a licensed racetrack for capital improvements at the racetrack, at the location of any amenity associated with the licensed racetrack's destination resort facility operations, or at adjacent facilities owned by the licensee, having a useful life of seven or more years and placed in service after the first day of April, two thousand one, the licensed racetrack shall receive one dollar in recoupment from its Capital Reinvestment Fund Account: Provided, That in the case of thoroughbred horse tracks, four cents of every dollar in recoupment shall be reserved into a separate account, which shall only be spent on capital improvements and upgrading to facilities used for the housing and care of horses, facilities located inside the perimeter of the racing surface, including the surface thereof, facilities used for housing persons responsible for the care of horses, and that any such capital improvements and upgrading shall be subject to recoupment under this section only if they have been approved by the Horsemen's Benevolent and Protective Association acting on behalf of the horsemen: Provided, That in the case of greyhound race tracks, four cents of every dollar in recoupment shall be spent on capital improvements and upgrading in the kennel area or other areas at the track. If a licensed racetrack's unrecouped capital improvements exceed its capital reinvestment fund account at the end of any fiscal year, the excess improvements may be carried forward to seven subsequent fiscal years. Provided, however, That excess improvements relating to remedial flood capital improvements may be carried forward to fifteen subsequent fiscal years.
(c) Fifty-eight percent of the surcharge amount plus any moneys remaining in a racetrack's Capital Reinvestment Fund Account at the end of any fiscal year shall be deposited in the State Excess Lottery Revenue Fund created in section eighteen-a, article twenty-two of this chapter.
§29-22A-19. Compulsive gambling treatment fund; contract requirements for compulsive gamblers treatment program.

(a) There is hereby created and established a separate special account to be known as the 'Compulsive Gambling Treatment Fund'. Such The fund shall be appropriated from the Commission's administrative expense account and shall be not less than one hundred fifty thousand dollars nor more than five hundred thousand dollars per fiscal year, as determined by the Commission, as well as other amounts designated for in this chapter to provide funds for compulsive gambling treatment programs in the state.
(b) The Department of Health and Human Resources shall administer the grants and funds issued from the 'Compulsive Gambling Treatment Fund'.
(c) The Department of Health and Human Resources shall develop criteria consistent with this section which a treatment program for compulsive gamblers must meet in order to become eligible for a grant from the funds made available for such treatment programs pursuant to this provision. The department, in conjunction with the commission, shall develop a formula for the distribution of available funds which will result in an equitable distribution among programs submitted which meet the eligibility criteria for grants as developed by the department.
The Commission shall report annually to the Legislature the number and amounts of grants distributed and the number of people served by such programs.
(d) The Department of Health and Human Resources is not subject to the purchasing requirements as set forth in the legislative rule of the Purchasing Division of the Department of Administration: Provided, That the Department of Health and Human Resources shall comply with all contract requirements set forth in this section.
(e) The Department of Health and Human Resources shall develop procedures for bidding and awarding the contract, which must include:
(1) The procedures to be followed for submitting bids and the procedures for making awards;
(2) The proposed general terms and conditions for the contract;
(3) The description of the commodities and services required for the contract, with sufficient clarity to assure that there is a comprehensive understanding of the project's scope and requirements, including, but not limited to, the following elements:
(A) Services to be provided, including education, prevention, crisis intervention, outreach, assessment, referral and treatment for problem gamblers, and protocols for emergency treatment;
(B) Requirements for the business and professional licensing of providers, parameters for media-related advertising and public service announcements;
(C) Training, licensing, monitoring, evaluation and reporting requirements;
(D) Requirements for maintaining the confidentiality of the client population; and
(E) Rights to conduct financial and performance audits;
(4) A proposed time schedule commencement and completion of the contract;
(5) A budget for the contract;
(6) Requirements or restrictions for the subletting of specific portions of the contract, if any; and
(7) Requirements for professional liability and other insurance coverage.
(f) The Department of Health and Human Resources may award the contract based on low bid, best value, sole source or other basis, or may choose to reject all bids and reissue an invitation for bids:
Provided, That the Department of Health and Human Resources shall document the basis of its decisions under this subsection and shall report its decisions in the annual report required in subsection (j) of this section.
(g) The Department of Health and Human Resources shall hold a post award conference with the contractor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference shall include, at a minimum, the introduction of all participants and identification of department and contractor key personnel, and discussion of the following items:
(1) The scope of the contract, including specifications of requirements set forth in the bid request;
(2) The contract terms and conditions, particularly any special contract provisions;
(3) The technical and reporting requirements of the contract;
(4) The contract administration procedures, including contract monitoring and progress measurement;
(5) The rights and obligations of both parties and the contractor performance evaluation procedures;
(6) An explanation that the contractor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;
(7) Potential contract problem areas and possible solutions;
(8) Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to outcomes achieved by the contractor; and
(9) An explanation of the limits of authority of the personnel of both the department and the contractor.
(h) The Department of Health and Human Resources shall develop a comprehensive and objective monitoring checklist which:
(1) Measures treatment outcomes;
(2) Monitors compliance with contract requirements; and
(3) Assesses contractor performance on a quarterly and annual basis.
(i) The Commission may not influence or interfere with the operation of the program or the advertising and marketing decisions of the contractor.
(j) The Department of Health and Human Resources may monitor contract performance, review compliance with the contract's terms and conditions, request and review pertinent information in support of tendered invoices and conduct other investigation so as to enable it to properly assess whether the project's objectives and the contract's terms and conditions are being met. However, the Department of Health and Human Resources may not unduly influence or interfere with the operation of the program or the advertising and marketing decisions of the contractor.
(k) Once any contract to render services under a compulsive gambling treatment program is awarded pursuant to this section, the contract shall be administrated by the Department of Health and Human Resources, and the department shall maintain all records pertaining to each request for reimbursement and disbursement for under said contract for a minimum of five (5) years.
(l) The contractor may prominently promote, display or advertise the Compulsive Gambler's Treatment Program, its purpose, its hotline or its program events in any location in which the Lottery Commission promotes, displays, advertises or conducts operations or in any other location:
Provided, That the Lottery Commission's name, logo or other indicia may not appear on any advertising, marketing or promotional material of the contractor.
(m) The Department of Health and Human Resources shall report annually to the Joint Committee on Government and Finance on the amount of program funds distributed, the amount of administrative fee retained by the department and its use of the fee, the number of persons served by the program, and on each requirement set forth
in this section.
"
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4402- "A Bill to amend and reenact §29-22A-10C and §29-22A-19 of the Code of West Virginia, 1931, as amended, relating to extending the period excess improvements related to remedial flood capital improvements may be carried forward for fifteen subsequent fiscal years; treating compulsive gambling; authorizing the Department of Health and Human Resources to bid and award contracts for treatment programs; requiring development of procedures; establishing contract requirements; requiring post award conferences; providing for performance monitoring; prohibiting interference with operation of program; prohibiting use of Lottery Commission logo on advertising media; and requiring annual report."
On motion of Delegate DeLong, the House refused to concur in the Senate amendments and requested the Senate to recede therefrom.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4636, Making changes to workers' compensation insurance.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §5A-3-10a 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 §23-1-20; that said code be amended by adding thereto a new section, designated §23-2-9a; that §23-2C-3, §23-2C-15 and §23-2C-17 of said code be amended and reenacted; that §23-4-7b of said code be amended and reenacted; and that §23-5-1 and §23-5-11 of said code be amended and reenacted, all to read as follows:
CHAPTER 5A. DEPARTMENT OF ADMINISTRATION.

ARTICLE 3. PURCHASING DIVISION.
§5A-3-10a. Prohibition for awarding contracts to vendors which owe a debt to the state or its political subdivisions.

(a) Unless the context clearly requires a different meaning, for the purposes of this section, the terms:
(1) 'Debt' means any assessment, premium, penalty, fine, tax or other amount of money owed to the state or any of its political subdivisions because of a judgment, fine, permit violation, license assessment, amounts owed to the workers' compensation funds as defined in article two-c, of chapter twenty-three of this code, penalty or other assessment or surcharge presently delinquent or due and required to be paid to the state or any of its political subdivisions, including any interest or additional penalties accrued thereon.
(2) 'Debtor' means any individual, corporation, partnership, association, limited liability company or any other form or business association owing a debt to the state or any of its political subdivisions, and includes any person or entity that is in employer default.
(3) 'Employer default' means having an outstanding balance or liability to the old fund or to the uninsured employers' fund or being in policy default, as defined in section two, article two-c, chapter twenty-three, of this code, failure to maintain mandatory workers' compensation coverage, or failure to fully meet its obligations as a workers' compensation self-insured employer. An employer is not in employer default if it has entered into a repayment agreement with the Insurance Commissioner and remains in compliance with the obligations under the repayment agreement.
(3) (4) 'Political subdivision' means any county commission; municipality; county board of education; any instrumentality established by a county or municipality; any separate corporation or instrumentality established by one or more counties or municipalities, as permitted by law; or any public body charged by law with the performance of a government function and whose jurisdiction is coextensive with one or more counties or municipalities.
(4) (5) 'Related party' means a party, whether an individual, corporation, partnership, association, limited liability company or any other form or business association or other entity whatsoever, related to any vendor by blood, marriage, ownership or contract through which the party has a relationship of ownership or other interest with the vendor so that the party will actually or by effect receive or control a portion of the benefit, profit or other consideration from performance of a vendor contract with the party receiving an amount that meets or exceeds five percent of the total contract amount.
(b) No contract or renewal of any contract may be awarded by the state or any of its political subdivisions to any vendor or prospective vendor when the vendor or prospective vendor or a related party to the vendor or prospective vendor is a debtor and:
(1) The debt owed is an amount greater than one thousand dollars in the aggregate; or
(2) The debtor is in employer default.
(c) The prohibition of this section does not apply where a vendor has contested any tax administered pursuant to chapter eleven of this code, amount owed to the workers' compensation funds as defined in article two-c, of chapter twenty-three of this code, permit fee or environmental fee or assessment and the matter has not become final or where the vendor has entered into a payment plan or agreement and the vendor is not in default of any of the provisions of such plan or agreement.
(d) All bids, contract proposals or contracts with the state or any of its political subdivisions submitted or approved under the provisions of this code shall include an affidavit that the vendor, prospective vendor or a related party to the vendor or prospective vendor is not in employer default and does not owe any debt in an amount in excess of one thousand dollars or, if a debt is owed, that the provisions of subsection (c) of this section apply.
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 1. GENERAL ADMINISTRATIVE PROVISIONS.
§23-1-20. Employment preference for employees in workers' compensation litigation unit.
(a) The Legislature finds that, as claims against the workers' compensation Old Fund continue to decrease, persons currently employed on a permanent basis by the Attorney General in the workers' compensation litigation unit may soon face layoffs due to the decreasing workload. The Legislature hereby declares that such employees should have certain preferences if they seek continued employment with the state.
(b) Notwithstanding any provision of this code to the contrary, any person, not a temporary or probationary employee, employed by the Attorney General in the workers' compensation litigation unit who is laid off as a result of a decreased workload, shall be afforded the opportunity to transfer to other state employment if he or she is an employee in good standing at the time of the layoff.
(c) The Attorney General shall establish and maintain, for a period of two years, a list of all employees who are eligible for employment due to a layoffs pursuant to this section, and who wish to remain eligible for employment with the state. The Attorney General shall give priority to any person on the list for employment in an available position equivalent to the position that person held in the workers' compensation litigation unit unless the Attorney General determines that the person is less qualified than other applicants for the position.
(d) Notwithstanding any other provision of this code to the contrary, the Division of Personnel shall maintain, for a period of two years, a list of employees who were laid off as a result of the reduction in the work force occasioned by the decreasing work load of the workers' compensation litigation unit within the office of the Attorney General. Any such employee shall be given preference in hiring for any position in classified or exempt service for which he or she is qualified and applies. The Director of the Division of Personnel may propose for promulgation, in accordance with the provisions of article three, chapter twenty-nine-a of this code, a legislative rule to effectuate the requirements of this section.
ARTICLE 2. EMPLOYERS AND EMPLOYEES SUBJECT TO THIS CHAPTER; EXTRATERRITORIAL COVERAGE

§23-2-9a. Sanctions for default by self-insured employers; rulemaking authority.
Whenever the authority of an employer to self-insure its obligations under this chapter is terminated and such employer is thereafter in default in the payment of any portion of surcharges or assessments required under this chapter or by rules promulgated thereunder, or in any payment required to be made as benefits provided by this chapter to the employer's injured employees or dependants of fatally injured employees, such employer shall be ineligible for government contracts to the same extent as an employer in 'employer default,' as provided for in section ten-a, article three, chapter five-a of this code, and shall also be subject to the license and permit revocation and termination sanctions to the same extent as employers in 'employer default' pursuant to the provisions of subdivision (1), subsection (e), section nineteen, article two-c of this chapter. The Insurance Commissioner shall propose rules, as provided in section five, article two-c of this chapter, establishing administrative penalties for nonpayment of obligations under this chapter.
ARTICLE 2C. EMPLOYERS' MUTUAL INSURANCE COMPANY.
§23-2C-3. Creation of employer mutual as successor organization of the West Virginia Workers' Compensation Commission.

(a) (1) On or before the first day of June, two thousand five, the executive director may take such actions as are necessary to establish an employers' mutual insurance company as a domestic, private, nonstock, corporation to:
(1) (A) Insure employers against liability for injuries and occupational diseases for which their employees may be entitled to receive compensation pursuant to this chapter twenty-three of this code and federal Longshore and Harbor Workers' Compensation Act, 33 U.S.C. §901, et seq.;
(2) (B) Provide employer's liability insurance incidental to and provided in connection with the insurance specified in subdivision (1) paragraph (A) of this subdivision, including coal-workers' pneumoconiosis coverage and employer excess liability coverage as provided in this chapter; and
(3) (C) Transact such other kinds of property and casualty insurance for which the company is otherwise qualified under the provisions of this code.
(4) (2) The company shall may not sell, assign or transfer substantial assets or ownership of the company.
(b) If the executive director establishes a domestic mutual insurance company pursuant to subsection (a) of this section:
(1) As soon as practical, the company established pursuant to the provisions of this article shall, through a vote of a majority of its provisional board, file its corporate charter and bylaws with the Insurance Commissioner and apply for a license with the Insurance Commissioner to transact insurance in this state. Notwithstanding any other provision of this code, the Insurance Commissioner shall act on the documents within fifteen days of the filing by the company.
(2) In recognition of the workers' compensation insurance liability insurance crisis in this state at the time of enactment of this article and the critical need to expedite the initial operation of the company, the Legislature hereby authorizes the Insurance Commissioner to review the documentation submitted by the company and to determine the initial capital and surplus requirements of the company, notwithstanding the provisions of section five-b, article three, chapter thirty-three of this code. The company shall furnish the Insurance Commissioner with all information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The Insurance Commissioner shall monitor the economic viability of the company during its initial operation on not less than a monthly basis, until such time as the commissioner, in his or her discretion, determines that monthly reporting is not necessary. In all other respects the company shall be subject to comply with the applicable provisions of chapter thirty-three of this code.
(3) Subject to the provisions of subdivision (4) of this subsection, the Insurance Commissioner may waive other requirements imposed on mutual insurance companies by the provisions of chapter thirty-three of this code as the Insurance Commissioner determines is are necessary to enable the company to begin insuring employers in this state at the earliest possible date.
(4) Within forty months of the date of the issuance of its license to transact insurance, the company shall comply with the capital and surplus requirements set forth in subsection (a), section five-b, article three, chapter thirty-three of this code in effect on the effective date of this enactment, unless said the deadline is extended by the Insurance Commissioner.
(c) For the duration of its existence, the company is not and shall not be considered a department, unit, agency or instrumentality of the state for any purpose. All debts, claims, obligations and liabilities of the company, whenever incurred, shall be are the debts, claims, obligations and liabilities of the company only and not of the state or of any department, unit, agency, instrumentality, officer or employee of the state.
(d) The moneys of the company are not and shall not be considered part of the General Revenue Fund of the state. The debts, claims, obligations and liabilities of the company are not and shall not be considered a debt of the state or a pledge of the credit of the state.
(e) The company is not subject to provisions of article nine-a, chapter six of this code; the provisions of article two, chapter six-c of this code; the provisions of chapter twenty-nine-b of this code; the provisions of article three, chapter five-a of this code; the provisions of article six, chapter twenty-nine of this code; the provisions of article six-a of said chapter; or the provisions of chapter twelve of this code.
(f) If the commission has been terminated, effective upon said the termination, private carriers, including the company, shall not be are not subject to payment of premium taxes, surcharges and credits contained in article three, chapter thirty-three of this code on premiums received for coverage under this chapter. In lieu thereof, the workers' compensation insurance market shall be is subject to the following:
(1) (A) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be collected by each private carrier from its policyholders. The surcharge percentage shall be calculated by dividing the previous fiscal year's total premiums collected plus deductible payments by all employers into the portion of the Insurance Commissioner's budget amount attributable to regulation of the private carrier market. This resulting percentage shall be applied to each policyholder's premium payment and deductible payments as a surcharge and remitted to the Insurance Commissioner. Said surcharge shall be remitted within ninety days of receipt of premium payments;
(B) With respect to fiscal years beginning on and after the first day of July, two thousand eight, in lieu of the surcharge set forth in the preceding paragraph, each private carrier shall collect a surcharge in the amount of five and five-tenths percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied: Provided, That prior to the thirtieth day of June, two-thousand thirteen, and every five years thereafter, the commissioner shall review the percentage surcharge and determine a new percentage as he or she deems necessary.
(C) The amounts required to be collected under paragraph (B) of this subdivision shall be remitted to the Insurance Commissioner on or before the twenty-fifth day of the month succeeding the end of the quarter in which they are collected, except for the fourth quarter for which the surcharge shall be remitted on or before the first day of March of the succeeding year.
(2) Each fiscal year, the Insurance Commissioner shall calculate a percentage surcharge to be remitted on a quarterly basis by self-insured employers and said percentage shall be calculated by dividing previous year's self-insured payroll in the state into the portion of the Insurance Commissioner's budget amount attributable to regulation of the self-insured employer market. This resulting percentage shall be applied to each self-insured employer's payroll and the resulting amount shall be remitted as a regulatory surcharge by each self-insured employer. The Workers' Compensation Board of Managers or Industrial Council may promulgate a rule for implementation of this section. The company, all other private carriers and all self-insured employers shall furnish the Insurance Commissioner with all required information and cooperate in all respects necessary for the Insurance Commissioner to perform the duties set forth in this section and in other provisions of this chapter and chapter thirty-three of this code. The surcharge shall be calculated so as to only defray the costs associated with the administration of this chapter and the funds raised shall not be used for any other purpose;
(3) (A) Upon termination of the commission, the company and all other Each private carriers carrier shall collect a premiums surcharge from their its policyholders equal to ten percent, or such higher or lower rate as annually determined, by the first day of May of each year, by the Insurance Commissioner to produce forty-five million dollars annually, of each policyholder's periodic premium amount for workers' compensation insurance: Provided, That the surcharge rate on policies issued or renewed on or after the first day of July, two thousand eight shall be nine percent of the premium collected plus the total of all premium discounts based on deductible provisions that were applied.
(B) Additionally, by By the first day of May each year, the self-insured employer community shall be assessed a cumulative total of nine million dollars. The methodology for the assessment shall be fair and equitable and determined by exempt legislative rule issued by the workers' compensation board of managers or Industrial Council. The amount collected pursuant to this subdivision shall be remitted to the Insurance Commissioner for deposit in the Workers' Compensation Debt Reduction Fund created in section five, article two-d of this chapter.
(g) The new premiums surcharge imposed by paragraphs (A) and (B), subdivision (3), subsection (f) of this section shall sunset and not be are not collectible with respect to workers' compensation insurance premiums paid when the policy is renewed on or after the first day of the month following the month in which the Governor certifies to the Legislature that the revenue bonds issued pursuant to article two-d of this chapter twenty-three of this code have been retired and that the unfunded liability of the Old Fund has been paid or has been provided for in its entirety, whichever occurs last.
§23-2C-15. Mandatory coverage; changing of coverage.
(a) Effective upon termination of the commission, all subscriber policies with the commission shall novate to the company and all employers otherwise shall purchase workers' compensation insurance from the company unless permitted to self-insure their obligations. The company shall assume responsibility for all new fund obligations of the subscriber policies which novate to the company or which are issued thereafter. Each subscriber whose policy novates to the company shall also have its advanced deposit credited to its account with the company. Employers Each employer purchasing workers' compensation insurance from the company shall have the right to designate a representative or agent to act on its behalf in any and all matters relevant to coverage and claims as administered by the company.
(b) Effective the first day of July, two thousand eight, an employer may elect to: (1) Continue to purchase workers' compensation insurance from the company; (2) purchase workers' compensation insurance from another private carrier licensed and otherwise authorized to transact workers' compensation insurance in this state; or (3) self-insure its obligations if it satisfies all requirements of this code to so self-insure and is permitted to do so: Provided, That all state and local governmental bodies, including, but not limited to, all counties and municipalities and their subdivisions and including all boards, colleges, universities and schools, shall continue to purchase workers' compensation insurance from the company through the thirtieth day of June, two thousand twelve. The company and other private carriers shall be are permitted to sell workers' compensation insurance through licensed agents in the state. To the extent that a private carrier markets workers' compensation insurance through a licensed agent, it shall be is subject to all applicable provisions of chapter thirty-three of this code.
(c) Every employer shall post a notice upon its premises in a conspicuous place identifying its workers' compensation insurer. The notice must include the insurer's name, business address and telephone number and the name, business address and telephone number of its nearest adjuster in this state of the insurer and of the person to contact with questions about a claim. The employer shall at all times maintain the notice provided for the information of his or her employees. Release of employer policy information and status by the Industrial Council and the Insurance Commissioner shall be governed by section four, article one of this chapter. The Insurance Commissioner shall collect and maintain information related to officers, directors and ten percent or more owners of each carrier's policyholders, and each private carrier shall provide said information to the Insurance Commissioner within sixty days of the issuance of a policy and any changes to the information shall thereafter be reported within sixty days of such change.
(d) Any rule promulgated by the Board of Managers or Industrial Council empowering agencies of this state to revoke or refuse to grant, issue or renew any contract, license, permit, certificate or other authority to conduct a trade, profession or business to or with any employer whose account is in default with regard to any liability under this chapter shall be fully enforceable by the Insurance Commissioner against any such the employer.
(e) Effective the first day of January, two thousand nine, the company may decline to offer coverage to any applicant. Effective Private carriers and, effective the first day of January, two thousand nine, the company, and private carriers may cancel a policy or decline to renew a policy upon the issuance of sixty thirty days' written advance notice to the policyholder and may refuse to renew a policy upon the issuance of sixty days' written advance notice to the policyholder: Provided, That cancellation of the policy by the carrier for failure of consideration to be paid by the policyholder or for refusal to comply with a premium audit is effective after fifteen ten days advance written notice of cancellation to the policyholder.
(f) Every private carrier shall notify the Insurance Commissioner or his or her designee of as follows: (1) of The the issuance or renewal of insurance coverage, within ten calendar thirty days of (A) the effective date of coverage, or (B) the private carrier's receipt of notice of the employer's operations in this state, whichever is later; and (2) of a termination of coverage by the private carrier due to lapse, refusal to renew or cancellation, within three business at least ten days of prior to the effective date of the termination; and (3) of a termination of coverage by an employer, within ten days of the private carrier's receipt of the employer's request for such termination; such the notifications shall be on forms developed or in a manner prescribed by the Insurance Commissioner.
(g) For the purposes of subsections (e) and (f) of this section, the transfer of a policyholder between insurance companies within the same group is not considered a cancellation or refusal to renew a workers' compensation insurance policy.
§23-2C-17. Administration of a competitive system.
(a) Every policy of insurance issued by a private carrier:
(1) Shall be in writing;
(2) Shall contain the insuring agreements and exclusions; and
(3) If it contains a provision inconsistent with this chapter, it shall be deemed to be reformed to conform with this chapter.
(b) The Workers' Compensation Board of Managers Industrial Council shall promulgate a rule which prescribes the requirements of a basic policy to be used by private carriers.
(c) A private carrier or self-insured employer may enter into a contract to have his or her its plan of insurance administered by a third-party administrator including the company. A private carrier shall not enter into a contract with any person for the administration of any part of the plan of insurance unless that person maintains an office in this state and has if the administrator is licensed or registered with the Insurance Commissioner of this state in accordance with article forty-six, chapter thirty-three of the code. Notwithstanding any other provision of this code to the contrary, any third-party administrator who, directly or indirectly, underwrites or collects charges or premiums from, or adjusts or settles claims on residents of this state, in connection with workers' compensation coverage offered or provided by an insurer, is subject to the provisions of article forty-six, chapter thirty-three of this code to the same extent as those persons included in the definition set forth in subsection (a), section two of said article. The Insurance Commissioner shall propose rules, as provided in section five, article two-c of this chapter, to regulate the use of third- party administrators by private carriers and self-insured employers, including rules setting forth mandatory provisions for agreements between third-party administrators and self-insured employers or private carriers.
(d) A self-insured employer or a private carrier may:
(1) Enter into a contract or contracts with one or more organizations for managed care to provide comprehensive medical and health care services to employees for injuries and diseases that are compensable pursuant to chapter twenty-three of this code. The managed care plan must be approved pursuant to the provisions of section three, article four of this chapter.
(2) Require employees to obtain medical and health care services for their industrial injuries from those organizations and persons with whom the self-insured employer, or private carrier has contracted or as the self-insured employer or private carrier otherwise prescribes.
(3) Except for emergency care, require employees to obtain the approval of the self-insured employer or private carrier before obtaining medical and health care services for their industrial injuries from a provider of health care who has not been previously approved by the self-insured employer or private carrier.
(e) A private carrier or self-insured employer may inquire about and request medical records of an injured employee that concern a preexisting medical condition that is reasonably related to the industrial injury of that injured employee.
(f) An injured employee must sign all medical releases necessary for the insurer of his or her employer to obtain information and records about a preexisting medical condition that is reasonably related to the industrial injury of the employee and that will assist the insurer to determine the nature and amount of workers' compensation to which the employee is entitled.
ARTICLE 4. DISABILITY AND DEATH BENEFITS.
§23-4-7b. Trial return to work; Insurance Commissioner to develop rules.

(a) The Legislature hereby finds and declares that it is in the interest of employees, and employers and the commission that injured employees be encouraged to return to work as quickly as possible after an injury and that appropriate protections be afforded to injured employees who return to work on a trial basis.
(b) Notwithstanding any other provisions of this chapter to the contrary, the injured employee shall not have his or her eligibility to receive temporary total disability benefits terminated when he or she returns to work on a trial basis as set forth in this section. An employee is eligible to return to work on a trial basis when he or she is released to work on a trial basis by the treating physician. The Insurance Commissioner shall propose rules, as provided in section five, article two-c of this chapter, establishing criteria for providing employers the option of allowing employees, following an injury, to return to work on a trial basis and for the suspension of temporary total benefits during a period of trial return to work.
(c) When an injured employee returns to work on a trial basis, the employer shall provide a trial return-to-work notification to the commission. Upon receipt of the notification, the commission shall note the date of the first day of work pursuant to the trial return and shall continue the claimant's eligibility for temporary total disability benefits, but shall temporarily suspend the payment of temporary total disability benefits during the period actually worked by the injured employee. The claim shall be closed on a temporary total disability basis either when the injured employee or the authorized treating physician notifies the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, that the injured employee is able to perform his or her job or automatically at the end of a period of three months from the date of the first day of work unless the employee notifies the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, that he or she is unable to perform the duties of the job, whichever occurs first. If the injured employee is unable to continue working due to the compensable injury for a three-month period, the injured employee shall provide notice and temporary total disability benefits shall be reinstated immediately and he or she shall be referred for a rehabilitation evaluation as provided in section nine of this article. No provision of this section shall be construed to prohibit the commission, successor to the commission, other private carrier or self-insured employer, whichever is applicable, from referring the injured employee for any permanent disability evaluation required or permitted by any other provision of this article.
(d) Nothing in this section shall prevent the employee from returning to work without a trial return-to-work period.
(e) Nothing in this section shall be construed to require an injured employee to return to work on a trial basis.
(f) The provisions of this section shall be terminated and be of no further force and effect on the first day of July, two thousand seven.
ARTICLE 5. REVIEW.
§23-5-1. Notice by commission or self-insured employer of decision; procedures on claims; objections and hearing.

(a) The Workers' Compensation Commission, the successor to the commission, other Insurance Commissioner, private insurance carriers and self-insured employers may hear and determine all questions within their jurisdiction. In matters arising under articles three and four of this chapter, the commission, the successor to the commission, other Insurance Commissioner private insurance carriers and self-insured employers shall promptly review and investigate all claims. The parties to a claim shall file the information in support of their respective positions as they consider proper. In addition, the commission, the successor to the commission, other private insurance carriers and self-insured employers may develop additional information that it considers to be necessary in the interests of fairness to the parties and in keeping with their fiduciary obligations are the claimant and, if applicable, the claimant's dependants, and the employer, and with respect to claims involving funds created in article two-c of this chapter for which he or she has been designated the administrator, the Insurance Commissioner. In claims in which the employer had coverage on the date of the injury or last exposure, the employer's carrier has sole authority to act on the employer's behalf in all aspects related to litigation of the claim. With regard to any issue which is ready for a decision, the commission, the successor to the commission, other Insurance Commissioner, private insurance carriers and carrier or self-insured employers employer, whichever is applicable, shall promptly send the decision to all parties, including explain the basis of its decisions decision.  As soon as practicable after receipt of the claim, but in no event later than the date of the initial decision on the claim, the Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall send the claimant a brochure approved by the Insurance Commissioner setting forth the claims process.
(b)(1) Except with regard to interlocutory matters, and those matters set forth in subsection (d) of this section, upon making any decision, upon making or refusing to make any award or upon making any modification or change with respect to former findings or orders, as provided by section sixteen, article four of this chapter, the commission, the successor to the commission, other private insurance carriers and self-insured employers Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, shall give notice, in writing, to the employer, employee, claimant or dependant as the case may be, parties to the claim of its action. The notice shall state the time allowed for filing an objection a protest to the finding. The action of the commission, the successor to the commission, other private insurance carriers and self-insured employers Insurance Commissioner, private carrier or self-insured employer, whichever is applicable, is final unless the decision is protested within sixty days the employer, employee, claimant or dependant shall, within thirty days after the receipt of such decision the notice, object in writing, to the finding. Unless an objection a protest is filed within the thirty-sixty-day period, the finding or action is final. This time limitation is a condition of the right to litigate the finding or action and hence jurisdictional. Any objection protest shall be filed with the Office of Judges with a copy served upon the parties to the claim commission, the successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable, and other parties in accordance with the procedures set forth in sections eight and nine of this article. In all instances where a private carrier, self-insured employer or a third-party administrator has made claims decisions as authorized in this chapter, they shall provide claimants notice of all claims decisions as provided by rules for self-administration promulgated by the board of managers and shall be bound by each requirement imposed upon the commission by this article. An employer may protest decisions incorporating findings made by the Occupational Pneumoconiosis Board, decisions made by the Insurance Commissioner acting as administrator of claims involving funds created in article two-c of this chapter, or decisions entered pursuant to subdivision (1), subsection (c), section seven-a, article four of this chapter.
(2)(A) With respect to every application for benefits filed on or after the first day of July, two thousand eight, in which a decision to deny benefits is protested and the only controversy relating to compensability is whether the application was properly filed as a new claim or a reopening of a previous claim, the party that denied the application shall begin to make conditional payment of benefits and must promptly give notice to the Office of Judges that another identifiable person may be liable. The Office of Judges shall promptly order the appropriate persons be joined as parties to the proceeding: Provided, That at any time during a proceeding in which conditional payments are being made in accordance with the provisions of this subsection, the office of judges may, pending final determination of the person properly liable for payment of the claim, order that such conditional payments of benefits be paid by another party.
(B) Any conditional payment made pursuant to paragraph (A) of this subdivision shall not be deemed an admission or conclusive finding of liability of the person making such payments. When the administrative law judge has made a determination as to the party properly liable for payment of the claim, he or she shall direct any monetary adjustment or reimbursement between or among the Insurance Commissioner, private carriers and self-insured employers as is necessary.
(C) The Office of Judges may direct that:
(i) An application for benefits be designated as a petition to reopen, effective as of the original date of filing;
(ii) A petition to reopen be designated as an application for benefits, effective as of the original date of filing; or
(iii) An application for benefits or petition to reopen filed with the Insurance Commissioner, private carrier or self-insured employer be designated as an application or petition to reopen filed with another private carrier, self-insured employer or Insurance Commissioner.
(c) Where an employer protests a written decision entered pursuant to a finding or determination of the commission, the successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable, is protested only by the employer of the Occupational Pneumoconiosis Board, a decision on a claim made by the Insurance Commissioner acting as the administrator of a fund created in article two-c of this chapter, or decisions entered pursuant to subdivision (1), subsection (c), section seven-a, article four of this chapter, and the employer does not prevail in its protest, and in the event the claimant is required to attend a hearing by subpoena or agreement of counsel or at the express direction of the commission or Office of Judges, then the claimant in addition to reasonable traveling and other expenses shall be reimbursed for loss of wages incurred by the claimant in attending the hearing.
(d) The commission, the successor to the commission, other private insurance carriers and Insurance Commissioner, private carrier or self-insured employers employer, whichever is applicable may amend, correct or set aside any order or decision on any issue entered by it which, at the time of issuance or any time thereafter after that, is discovered to be defective or clearly erroneous or the result of mistake, clerical error or fraud, or with respect to any order or decision denying benefits, otherwise not supported by the evidence, Jurisdiction to take this action but any protest filed prior to entry of the amended decision is a protest from the amended decision unless and until the administrative law judge before whom the matter is pending enters an order dismissing the protest as moot in light of the amendment. Jurisdiction to issue an amended decision pursuant to this subsection continues until the expiration of two years from the date of entry of an order a decision to which the amendment is made unless the order decision is sooner affected by appellate action: Provided, That corrective actions in the case of fraud may be taken at any time an action of an administrative law judge or other judicial officer or body: Provided, That corrective actions in the case of fraud may be taken at any time.
(e) All objections to orders of the commission, the successor to the commission, other private insurance carriers and self-insured employers, whichever is applicable shall be styled in the name of the issuing entity. All appeals prosecuted from the office of judges shall be in the name of the issuing party. In all actions under this article, the Workers' Compensation Commission shall be the party in interest unless the parties to the appeal are limited to a claimant and a self-insured employer.
§23-5-11. Workers' Compensation Board of Review generally.
(a) On the thirty-first day of January, two thousand four, the Workers' Compensation Appeal Board heretofore established in this section is hereby abolished.
(b) There is hereby created the 'Workers' Compensation Board of Review', which may also be referred to as 'the Board of Review' or 'the board'. Effective the first day of February, two thousand four, the Board of Review shall exercise exclusive jurisdiction over all appeals from the Workers' Compensation Office of Judges including any and all appeals pending with the Board of Appeals on the thirty-first day of January, two thousand four.
(c) The board shall consist consists of three members.
(d) The Governor shall appoint, from names submitted by the 'Workers' Compensation Board of Review Nominating Committee', with the advice and consent of the Senate, three qualified attorneys to serve as members of the Board of Review. If the Governor does not select a nominee for any vacant position from the names provided by the nominating committee, he shall notify the nominating committee of that circumstance and the committee shall provide additional names for consideration by the Governor. A member of the Board of Review may be removed by the Governor for official misconduct, incompetence, neglect of duty, gross immorality or malfeasance and then only after notice and opportunity to respond and present evidence. No more than two of the members of the board may be of the same political party. The members of the Board of Review shall be paid an annual salary of eighty-five thousand dollars: Provided, That on and after the first day of July, two thousand eight the Governor shall set the salary of the members of the Board. Members are entitled to be reimbursed for actual and necessary travel expenses incurred in the discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(e) The nominating committee shall consist consists of the following members: (1) The President of the West Virginia State Bar who will serve serves as the chairperson of the committee; (2) an active member of the West Virginia State Bar Workers' Compensation Committee selected by the major trade association representing employers in this state; (3) an active member of the West Virginia State Bar Workers' Compensation Committee selected by the highest ranking officer of the major employee organization representing workers in this state; (4) the Dean of the West Virginia University School of Law; and (5) the Chairman of the Judicial Investigation Committee.
(f) The nominating committee is responsible for reviewing and evaluating candidates for possible appointment to the Board of Review by the Governor. In reviewing candidates, the nominating committee may accept comments from and request information from any person or source.
(g) Each member of the nominating committee may submit up to three names of qualified candidates for each position on the Board of Review: Provided, That the member of the nominating committee selected by the major trade organization representing employers of this state shall submit at least one name of a qualified candidate for each position on the board who either is, or who represents, small business employers of this state. After careful review of the candidates, the committee shall select a minimum of one candidate for each position on the board.
(h) No later than the first day of November, two thousand three, the nominating committee shall present to the Governor its list of candidates for the initial Board of Review. The Governor shall appoint the initial board no later than the thirty-first day of December, two thousand three: Provided, That upon the thirty-first day of December, two thousand three, the deadline for filling all positions of the Board of Review will be extended, as necessary, if, on or before that date, the Governor has timely requested additional names from the nominating committee. Thereafter, The nominating committee shall meet at the request of the Governor in order to make timely recommendations to the Governor for appointees to the board as the initial and subsequent terms expire or become vacant. The recommendations shall be submitted no later than thirty days prior to the expiration of any term.
(i) (h) Of the initial appointments, one member shall be appointed for a term ending the thirty-first day of December, two thousand six; one member shall be appointed for a term ending the thirty-first day of December, two thousand eight; and one member shall be appointed for a term ending the thirty-first day of December, two thousand ten. Thereafter, The appointments shall be for six-year terms.
(j) (i) A member of the Board of Review must, at the time he or she takes office and thereafter during his or her continuance in office, be a resident of this state, be a member in good standing of the West Virginia State Bar, have a minimum of ten years' experience as an attorney admitted to practice law in this state prior to appointment and have a minimum of five years' experience in preparing and presenting cases or hearing actions and making decisions on the basis of the record of those hearings before administrative agencies, regulatory bodies or courts of record at the federal, state or local level.
(k)(j) No member of the Board of Review may hold any other office, or accept any appointment or public trust, nor may he or she become a candidate for any elective public office or nomination thereto. Violation of this subsection requires the member to vacate his or her office. No member of the Board of Review may engage in the practice of law during his or her term of office.
(l)(k) A vacancy occurring on the board other than by expiration of a term shall be filled in the manner original appointments were made, for the unexpired portion of the term.
(m) (l) The board shall designate one of its members in rotation to be chairman of the board for as long as the board may determine by order made and entered of record. In the absence of the chairman, any other member designated by the members present shall act as chairman.
(n) (m) The Board of Review shall meet as often as necessary to hold review hearings, at such times and places as the chairman may determine. Two members shall be present in order to conduct review hearings or other business. All decisions of the board shall be determined by a majority of the members of the board.
(o) (n) The Board of Review shall make general rules regarding the pleading, including the form of the petition and any responsive pleadings, practice and procedure to be used by the board.
(p)(o) The Board of Review may hire a clerk and other professional and clerical staff necessary to carry out the requirements of this article. It is the duty of the clerk of the Board of Review to attend in person, or by deputy, all the sessions of the board, to obey its orders and directions, to take care of and preserve in an office, kept for the purpose, all records and papers of the board and to perform other duties as prescribed by law or required of him or her by the board. All employees of the board shall serve at the will and pleasure of the board. The board's employees are exempt from the salary schedule or pay plan adopted by the Division of Personnel. All personnel of the Board of Review shall be are under the supervision of the chairman of the Board of Review.
(q)(p) If deemed considered necessary by the board, the board may, through staffing or other resources, procure assistance in review of medical portions of decisions.
(r) (q) Upon the conclusion of any hearing, or prior thereto with concurrence of the parties, the member board shall promptly determine the matter and make an award in accordance with his or her its determination.
(s) (r) The award shall become a part of the commission file. A copy of the award shall be sent forthwith by mail to all parties in interest.
(t) (s) The award is final when entered. The award shall contain a statement explaining the rights of the parties to an appeal to the Board of Review and the applicable time limitations involved.
(u) (t) The board shall submit to the Insurance Commissioner a budget to the executive director for inclusion in the budget for the Workers' Compensation Commission sufficient to adequately provide for the administrative and other operating expenses of the board.
(v) (u) The board shall report monthly to the board of managers Industrial Council on the status of all claims on appeal.
(w) (v) Effective upon termination of the commission, the Board of Review shall be transferred to the Insurance Commissioner which shall have the oversight and administrative authority heretofore provided to the executive director and the board of managers."
On motion of Delegate Wester the House of Delegates concurred in the Senate amendment with amendment, on page twenty nine, section eleven, line seventeen, following the word "Board", by striking out the period, inserting a colon and the following proviso:
"Provided, however, That the annual salary of a member of the board or review shall not exceed one hundred ten thousand dollars."
The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 460), and there were--yeas 87, nays 6, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Andes, Duke, Hamilton, Kessler, Lane and Moye.
Absent And Not Voting: Boggs, Doyle, Mahan, Marshall, Shook, Spencer and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4636) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 461), and there were--yeas 90, nays 3, absent and not voting 7, with the nays and absent and not voting being as follows:
Nays: Kessler, C. Miller and Sobonya.
Absent And Not Voting: Boggs, Doyle, Mahan, Marshall, Shook, Spencer and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4636) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
S. B. 72, Expanding Route 2 and Interstate 68 Authority territory.
On motion of Delegate DeLong, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Martin, Hutchins and Sobonya.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Reordering of the Calendar

Delegate DeLong announced that the Committee on Rules had transferred
Com. Sub. for S. B. 239, Com. Sub. for S. B. 323, Com. Sub. for S. B. 398, Com. Sub. for S. B. 474, Com. Sub. for S. B. 481, S. B. 503, Com. Sub. for S. B. 504, Com. Sub. for S. B. 536, Com. Sub. for S. B. 545, S. B. 606, Com. Sub. for S. B. 645, S. B. 659, S. B. 673, S. B. 674 and Com. Sub. for S. B. 784, on third reading, House Calendar, to the Special Calendar; and H. C. R. 110, H. C. R. 112, S. C. R. 58 and S. C. R. 76 on Unfinished Business, House Calendar, to the Special Calendar.
At the request of Delegate DeLong, and by unanimous consent, the House of Delegates proceeded to the Ninth Order of Business for the purpose of considering resolutions on Unfinished Business.
Special Calendar

Unfinished Business

H. C. R. 110, Requesting the Joint Committee on Government and Finance to study mitigation practices and resources in wetland areas; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. C. R. 112, Calling for an economic stimulus rebate to resident personal income tax filers; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
S. C. R. 58, Requesting that the Joint Committee on Government and Finance study alternatives for the care for individuals with Alzheimer's; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. C. R. 76, Requesting Division of Highways place sign at Fayetteville, Fayette County, "Coolest Small Town"; coming up in regular order, as unfinished business, was reported by the Clerk and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Third Reading

S. B. 784, Relating to reforming, altering or modifying county government; on third reading, coming up in regular order, was, on motion of Delegate DeLong, deferred.
Com. Sub. for S. B. 481, Authorizing physician assistants to conduct mental health hygiene process examinations;on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 462), and there were--yeas 96, nays none, absent and not voting 4, with the absent and not voting being as follows:
Absent And Not Voting: Doyle, Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 481) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 323, Relating to stormwater systems generally; on third reading, coming up in regular order, was reported by the Clerk.
Delegates Tabb, Shook and Webster asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
On motion of Delegates Tabb, Shook and Webster, the bill was amended on page three, section ten, line six, following the period, by adding the words "An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant."
On page seven, section ten, following line seven, by inserting a new subsection (h) to read as follows:
"(h) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office."
On page eight, section ten, line eleven, following the word "location" and the period, by inserting the words "An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant."
On page seventeen, section ten, following line nine, by inserting a new subsection (n) to read as follows:
"(n) A municipality which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office."
On page twenty-four, section nine, line eleven, following the word "owner" and ther period, by inserting the words "An entity providing stormwater service shall provide a tenant a report of the stormwater fee charged for the entire property and, if appropriate, that portion of the fee to be assessed to the tenant."
And,
On page twenty-five, section nine, following line thirteen, by inserting a new subsection (h) to read as follows:
"(h) A public service district which has been designated by the Environmental Protection Agency as an entity to serve a West Virginia Separate Storm Sewer System community shall prepare an annual report detailing the collection and expenditure of rates, fees or charges and make it available for public review at the place of business of the governing body and the stormwater utility main office."
There being no further amendments, the bill was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 463), and there were--yeas 57, nays 39, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Argento, Armstead, Ashley, Blair, Border, Canterbury, Cowles, Duke, Ellem, Ennis, Evans, Gall, Hartman, Hutchins, Ireland, Kessler, Lane, Martin, C. Miller, J. Miller, Moye, Overington, Perry, Pino, Porter, Reynolds, Romine, Schadler, Schoen, Shaver, Sobonya, Spencer, Staggers, Stephens, Sumner, Walters and Yost.
Absent And Not Voting: Browning, Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 323) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Browning noted to the Clerk that he was necessarily absent on Roll No. 463, and that had be been present, he would have voted "Yea" thereon.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4022, Relating to compensation and expenses of panel attorneys providing public defender services.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Minard, Green and Yoder.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates M. Poling, Shook and Ellem.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Conference Committee Report Availability

At 2:49 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 4571.
Special Calendar

Third Reading

The House next proceeded to further consideration of S. B. 784, Relating to reforming, altering or modifying county government; on third reading, having been postponed until this time, was reported by the Clerk.
Delegate Webster asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
On motion of Webster, the bill was amended on page three, section one, line twenty-seven, following the word "created", by inserting the words "on or after the first day of July, two thousand eight" and a comma.
The bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 464), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Rowan.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 784) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Doyle announced that he was temporarily absent when the votes were taken on Roll Nos. 459 through 462, and that had he been present, he would have voted "Yea" thereon.
Conference Committee Report

Delegate Kominar, from the committee of conference on matters of disagreement between the two houses, as to
H. B. 4557, Relating to continuing education for insurance producers.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to House Bill No. 4557 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the Senate on page six, section eight, line seventy-nine, and agree to the same as follows:
On page six, section eight, line seventy-nine, following the word "instruction" and the period, by inserting the following:
"(f) Subject to the approval by the commissioner, the active annual membership by an individual insurance producer in an organization or association recognized and approved by the commissioner as a state, regional or national professional insurance organization or association may be approved by the commissioner for up to two hours of continuing insurance education: Provided, That not more than two hours of continuing insurance education may be awarded to an individual insurance producer for membership in a professional insurance organization during a biennnial reporting period. Credit for continuing insurance education pursuant to this subdivision may only be awarded to individual insurance producers who are required to complete more than six hours of continuing education biennially."
That both houses agree to reletter the remaining subsections accordingly.
And,
That the House of Delegates agree to the Senate amendment to the title of the bill.
Respectfully submitted,
K. Steven Kominar,
Joseph M. Minard,

David G. Perry,
Michael A. Olivario, II,

Bob Ashley,
Andy McKenzie,

Conferees on the part of the
Conferees on the part of the

House of Delegates.
Senate.

On motion of Delegate Kominar, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 465), and there were--yeas 95, nays 2, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes and Lane.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 4557) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar

Third Reading

Com. Sub. for S. B. 398, Authorizing Department of Health and Human Resources promulgate legislative rules; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 466), and there were--yeas 88, nays 9, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Ashley, Blair, Cowles, Lane, Romine, Schoen, Sobonya and Walters.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 398) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 467), and there were--yeas 94, nays 1, absent and not voting 5, with the nays and absent and not voting being as follows:
Nays: Schoen.
Absent And Not Voting: Mahan, Marshall, M. Poling, Stemple and Webster.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 398) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 503, Requiring solid waste facility permit applicants furnish fingerprints for criminal background checks; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 468), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Porter.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 503) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 504, Relating to child support enforcement; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 469), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 504) passed.
An amendment to the title of the bill, recommended by the Committee on the Judiciary, was reported by the Clerk and adopted, amending the title to read as follows:
Com. Sub. for S. B. 504 - "A Bill to amend and reenact §38-3-18 of the Code of West Virginia, 1931, as amended; to amend and reenact §48-1-205, §48-1-225, §48-1-230 and §48-1-302 of said code; to amend and reenact §48-11-103 and §48-11-105 of said code; to amend said code by adding thereto a new section, designated §48-13-804; to amend and reenact §48-14-102, §48-14-106, §48-14-108, §48-14-203, §48-14-302, §48-14-404, §48-14-407, §48-14-408, §48-14-502, §48-14- 503, §48-14-701 and §48-14-801 of said code; to amend and reenact §48-15-201 of said code; to amend and reenact §48-17-101, §48-17-102, §48-17-103, §48-17-105, §48-17-106, §48-17-107 and §48-17-109 of said code; to amend and reenact §48-18-102, §48-18-118, §48-18-120, §48-18-202, §48-18-205 and §48-18-206 of said code; and to amend said code by adding thereto a new section, designated §48-18-118a, all relating generally to child support enforcement; providing for extension of statute of limitations for child support in certain instances; clarifying findings of fact in court orders when income is attributed for purposes of setting child support; clarifying that prescription drugs are included in medical support; providing that inmate concession accounts are income for withholding purposes; reducing the interest rate on unpaid child support from ten percent per annum to five percent per annum; providing for support to continue past age eighteen by operation of law under certain circumstances; establishing a procedure for refunding of properly withheld amounts when a support order is modified; requiring copy of modification order be sent to Bureau for Child Support Enforcement within five days; requiring family court judges enter default orders setting child support; allowing the Bureau for Child Support Enforcement to bring an action for medical support; providing refund procedures when a party to a support order is deceased; clarifying that an affidavit of accrued support may be filed in the court where the original order was entered; allowing the collection through income withholding of court-ordered fees; clarifying that withholding limitations do not apply to bonuses; creating consistency among civil contempt penalties; authorizing the Bureau for Child Support Enforcement to collect an additional two hundred dollars when arrearage triggers are met; eliminating the requirement that the Bureau for Child Support Enforcement attorney meet with the parties prior to the posting of a bond; authorizing the Tax Commissioner to deny issuance or reissuance of a business license; reconstituting the Child Support Enforcement Commission to allow for review of the child support formula by the commission; clarifying the duties of the Bureau for Child Support Enforcement Commissioner with respect to review of the child support formula; requiring report to the Legislative Oversight Commission on Health and Human Resources Accountability; allowing the Tax Commissioner to supply names and addresses of an obligor's employer to the Bureau for Child Support Enforcement for enforcement of support obligations; allowing collection of overpayments to support obligees from state tax refunds; requiring that parties receive monthly statements of child support accounts; requiring Bureau for Child Support Enforcement determine when person owing child support will be incarcerated more than six months and modify child support; requiring Bureau for Child Support Enforcement send notice to obligors in arrears one thousand dollars or more of modification options; requiring petition for contempt in certain cases; requiring motion for modification in certain cases; providing Bureau for Child Support Enforcement one year to send notification of modification options to obligors currently in arrears one thousand dollars or more; clarifying that when attorneys for the Bureau for Child Support Enforcement enter a proposed order to modify a child support obligation without objection, a modification order will be entered; and making technical corrections."
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Reports

Delegate Hrutkay, from the committee of conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4364, Amending various requirements for motor vehicle dealers.
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendments of the Senate to Com. Sub. for House Bill 4364 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendments of the Senate, striking out everything following the enacting clause and inserting new language, and agree to the same as follows:
That §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and §17A-6-18a of the Code of West Virginia, 1931, as amended, be amended and reenacted; that §17A-6E-2 of said code be amended and reenacted; and that §46A-3-109 of said code be amended and reenacted, all to read as follows:
CHAPTER 17A. MOTOR VEHICLE ADMINISTRATION, REGISTRATION, CERTIFICATE OF TITLE, AND ANTITHEFT PROVISIONS. SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.

ARTICLE 6. LICENSING OF DEALERS AND WRECKERS OR DISMANTLERS; SPECIAL PLATES; TEMPORARY PLATES OR MARKERS.

§17A-6-1b. Dealers authorized to issue motor vehicle registration.
(a) Notwithstanding any other provision in this chapter, the division may allow a licensed motor vehicle dealer as defined in section one of this article, authority to issue or transfer motor vehicle registrations for vehicles sold by the dealer. The authority to issue and transfer motor vehicle registrations shall be contingent upon the dealer collecting all fees and taxes required for the titling and registration of vehicles, receiving proof of insurance as described in subsection (e), section three, article three of this chapter, and if applicable receiving the receipt showing full payment of personal property taxes in accordance with section three-a, article three of this chapter.
(b) Authorization to issue and transfer motor vehicle registrations shall be contingent on the dealer completing an application provided by the division and meeting all criteria established by the division. The authority shall also be contingent upon the dealer agreeing to participate fully in a computerized system of electronic submission of registration, titling and lien information and all fees and taxes required under the provisions of this chapter, either directly to the division or through an authorized service provider selected and approved by the division. Any transaction conducted under the provisions of this section shall be conditional pending the determination by the division that the application for title, registration and lien recordation is complete, accurate and in accordance with the provisions of this chapter.
(c) The authority to participate in the electronic transmission of title, registration and lien information shall be immediately revoked upon revocation or cancellation of a dealer's license issued under the provisions of this chapter: Provided, That the authority to issue and transfer motor vehicle registrations may be revoked by the division immediately and separately from any other action against the dealer's license if the division determines that the terms of the agreement or agreements authorizing issuance, transfer or renewal of a vehicle registration or the electronic transmission of information have been violated.
(d) A fee established by the motor vehicle dealer advisory board may be charged by a motor vehicle dealer for its services required under this section.
(e) Only motor vehicle registrations of a type specified by the division may be issued, transferred or renewed by the authorized dealer.
(f) All fees and taxes collected by an authorized dealer under the provisions of this section shall be deposited in a financial institution designated by the division or the service provider in the manner prescribed by the division.
(g) The division may authorize a service provider to supply an authorized dealer with the necessary forms, supplies, registration plates and registration renewal decals necessary to enable the authorized dealer to perform the duties and functions specified in this section.
(1) Any service provider authorized to perform services under the provisions of this section shall post a bond of the applicant in the penal sum of one million dollars, in the form prescribed by the commissioner, conditioned that the applicant will not in the conduct of business practice any fraud which, or make any fraudulent representation which, shall cause a financial loss to any dealer, financial institution or agency, or the State of West Virginia, with a corporate surety thereon authorized to do business in this state, which bond shall be effective as of the date on which the authorization to provide services commences.
(2) The service provider is solely responsible for the inventory, tracking, safety and reconciliation of all supplies, registration plates, registration decals or other motor vehicle credentialing items in accordance with procedures established by the division and subject to audits by the division.
(3) The division may rescind without notice the authority of a service provider to perform services when the division has cause to believe that any state or federal law has been violated or that the service provider is not adhering to the terms and conditions of the authorization agreement.
(h) The service provider and the authorized dealer assume full responsibility for the care, custody, control, disclosure and use of any information provided by the division in order to execute the duties and responsibilities required by this section. Each service provider and each authorized dealer agrees to ensure that the disclosure of information to it and its handling of information received from the division complies with all federal and state statutes and division directives governing the disclosure and protection of such information.
(i) The commissioner may enter into agreements with other states and jurisdictions granting licensed dealers regulated by other states and jurisdictions the authority to issue or transfer motor vehicle registrations for vehicles sold by the dealer in the same manner as dealers licensed by this state.
§17A-6-2a. Dealer recovery fund created
.
(a) There is hereby created a special fund in the State Treasury which is to be designated the 'Dealer Recovery Fund'. The fund shall consist of certain moneys received from persons engaged in the business of selling new or used motor vehicles, new or used motorcycles, trailers, semi-trailers or recreational vehicles or from grants, gifts, bequests or awards arising out of the settlement or adjudication of a claim. The fund is not to be treated by the Auditor and Treasurer as part of the general revenue of the state. The fund is to be a special revolving fund paid out upon order of the Commissioner of Motor Vehicles based on the recommendation of the dealer recovery fund control board created in this section, solely for the purposes specified in this section. The commissioner may use up to one percent of funds from the dealer recovery fund for the administrative expenses of operating the dealer recovery fund program.
(b) The dealer recovery fund control board shall consist of the Commissioner of Motor Vehicles or his or her designee, the Attorney General's designee representing the Office of Consumer Protection and one representative selected by the motor vehicle dealer's advisory board. The Commissioner of Motor Vehicles or his or her designee shall serve as chair and the board shall meet at least once a year during the month of July, and as required by the commissioner. The commissioner may propose rules for promulgation in accordance with article three, chapter twenty-nine-a of this code that are necessary to effectuate the provisions of this section. The commissioner may employ the necessary staff needed to operate the program. The board may prorate the amount paid on claims when the amount of valid claims submitted would exceed thirty-three percent of the fund. However, claims presented by the Division of Motor Vehicles for taxes and fees shall be paid in full. The board may purchase insurance at a cost not to exceed one percent of the fund to cover extraordinary or excess claims from the fund.
(c) Every applicant for either an original dealer license or renewal of an existing dealer license of the type enumerated in subsection (a) of this section shall pay, in addition to any other license fee, an annual dealer recovery fund fee of one hundred fifty dollars. All dealers shall continue to maintain a surety bond as required by this article and the dealer recovery fund payment unless exempt by one of the following requirements:
(1) Any dealer who, for the three years immediately preceding assessment of the fees, has not had a claim paid against their bond or against the dealer recovery fund, whose license has not been suspended or revoked and who has not been assessed any civil penalties is not required to continue to keep the bond required by this article. However, no dealer can submit a claim against the fund unless it has contributed to the fund for at least three years.
(2) If the dealer recovery fund reaches or exceeds the amount of three million dollars as of the first day of July of any year, a dealer who meets the requirements of subdivision (1) of this subsection, is exempt from payment of the annual dealer recovery fund fee. However, if the fund should, as of the first day of April of any year, drop below three million dollars, all dealers, regardless of any previous exemption shall pay the annual dealer recovery fee of one hundred fifty dollars. The exemption prescribed in subdivision (1) of this subsection remains in effect regardless of the status of the fund.
(d) The dealer recovery fund control board may consider payment only after any dealer surety bond required pursuant to the provisions of section four of this article has been exhausted.
(e) When the fund reaches two hundred fifty thousand dollars, the board shall consider claims for payment.
(f) Claims against the fund are not to be made for any act or omission which occurred prior to the first day of July, two thousand two.
(g) Claims for payment shall be submitted within six months of the date of sale or the date the division is made aware of the claim.
(h) The board shall pay claims in the following order:
(1) Claims submitted by the Division of Motor Vehicles for unpaid taxes and fees;
(2) Claims submitted by a retail purchaser of a vehicle from a dealer covered by the fund with an undisclosed lien or a retail purchaser of a vehicle from a dealer covered by the fund who finds that the lien on the vehicle traded in has not been satisfied by the selling dealer if the lien satisfaction was a condition of the purchase agreement;
(3) Claims submitted by a motor vehicle dealer contributing to the fund, which has purchased a vehicle or vehicles from another dealer covered by the fund with an undisclosed lien; or
(4) Claims submitted by a retail purchaser of third party goods or services from a dealer covered by the fund for the unpaid charges when the dealer fails to pay the third party for the goods or services; or
(5) Claims submitted by the Division of Motor Vehicles, a retail purchaser or a motor vehicle dealer contributing to the fund, not authorized by subdivisions (1) through (4) of this subsection, but otherwise payable under the bond described in section four of this article, may be considered for payment by the board up to the amount of fifty thousand dollars for each licensing year the West Virginia dealer that is the subject of the complaint did not maintain the bond: Provided, That the board may not consider claims submitted by or on behalf of a financial institution for money owed by a dealer upon a loan to a dealer or credit extended to a dealer that is secured by a lien upon the inventory of the dealer, commonly referred to as a floor planner.
(i) The maximum claim against the fund for any unpaid lien of a used vehicle is the unpaid balance of the lien up to the loan value of the vehicle as of the date of the sale or other transaction as shown by a generally accepted motor vehicle value guide. The maximum claim against the fund for any new or unused vehicle is the amount of the invoice less any amounts rebated or to be rebated to the dealer from the manufacturer. Payment is only to be made to a secured party who agrees to accept payment from the dealer recovery fund and who accepts the payment in full settlement of any claims, and who releases the lien and the title, if applicable, prior to receiving payment. Any dealer who agrees to accept payment from the dealer recovery fund shall release the title prior to receiving payment.
(j) On payment by the board to a claimant from the fund, the board shall immediately notify the licensee against whom a claim was paid and request full reimbursement within thirty days of notification. If a dealer fails to fully reimburse the board within the specified period of time, the commissioner shall immediately and without prior hearing revoke the dealer license of dealer against whom the claim was paid. No applicant with an unpaid claim is eligible for renewal or relicensure until the full amount of the reimbursement plus interest as determined by the board is paid to the fund. Nothing in this section shall limit the authority of the commissioner to suspend, revoke or levy civil penalties against a dealer, nor shall full repayment of the amount owed to the fund necessarily nullify or modify the effect of any action by the commissioner.
(k) Nothing in this section shall limit the right for any person to seek relief though civil action against any other person.
(l) The provisions of this section do not apply to those class DTR dealers in the business of selling manufactured housing and covered by the state manufactured housing recovery fund established by the Division of Labor pursuant to a legislative rule.
§17A-6-4. Application for license certificate; insurance; bonds; investigation; information confidential.

(a) Application for any license certificate required by section three of this article shall be made on a form prescribed by the commissioner. There shall be attached to the application a certificate of insurance certifying that the applicant has in force an insurance policy issued by an insurance company authorized to do business in this state insuring the applicant and any other person, as insured, using any vehicle or vehicles owned by the applicant with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, operation, maintenance or use of the vehicle or vehicles, subject to minimum limits, exclusive of interest and costs, with respect to each vehicle, as follows: Twenty thousand dollars because of bodily injury to or death of one person in any one accident and, subject to the limit for one person, forty thousand dollars because of bodily injury to or death of two or more persons in any one accident, and ten thousand dollars because of injury to or destruction of property of others in any one accident.
(b) In the case of an application for a license certificate to engage in the business of new motor vehicle dealer, used motor vehicle dealer or house trailer dealer, the application shall disclose, but not be limited to, the following:
(1) The type of business for which a license certificate is sought;
(2) If the applicant is an individual, the full name and address of the applicant and any trade name under which he or she will engage in the business;
(3) If the applicant is a copartnership, the full name and address of each partner in the copartnership, the name of the copartnership, its post office address and any trade name under which it will engage in the business;
(4) If the applicant is a corporation, its name, the state of its incorporation, its post office address and the full name and address of each officer and director of the corporation;
(5) The location of each place in this state at which the applicant will engage in the business and whether the business is owned or leased by the applicant;
(6) Whether the applicant, any partner, officer or director of the business has previously engaged in the business or any other business required to be licensed under the provisions of this article and if so, with or for whom, at what location and for what periods of time;
(7) Whether the applicant, any partner, officer, director or employer of the business has previously applied for a license certificate under the provisions of this article or a similar license certificate in this or any other state, and if so, whether the license certificate was issued or refused and, if issued, whether it was ever suspended or revoked;
(8) A statement of previous general business experience and the past history of the applicant; and
(9) Any other information that the commissioner may reasonably require which may include information relating to any contracts, agreements or understandings between the applicant and other persons respecting the transaction of the business, and any criminal record of the applicant if an individual, or of each partner if a copartnership, or of each officer and director, if a corporation.
(c) In the case of an application for a license certificate to engage in the business of new motor vehicle dealer, the application shall, in addition to the matters outlined in subsection (b) of this section disclose:
(1) The make or makes of new motor vehicles which the applicant will offer for sale in this state during the ensuing fiscal year; and
(2) The exact number of new and used motor vehicles, if any, sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, and if no new and used motor vehicles were sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, the number of new and used motor vehicles the applicant reasonably expects to sell at retail and wholesale during the ensuing fiscal year.
(d) In the case of an application for a license certificate to engage in the business of used motor vehicle dealer, the application shall in addition to the matters outlined in subsection (b) of this section, disclose the exact number of used motor vehicles, if any, sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, and if no used motor vehicles were sold at retail and wholesale by the applicant or his or her predecessor, if any, during the preceding fiscal year, the number of used motor vehicles the applicant reasonably expects to sell at retail and wholesale during the ensuing fiscal year.
(e) In the case of an application for a license certificate to engage in the business of trailer dealer, recreational vehicle dealer, motorcycle dealer, used parts dealer or wrecker/ dismantler/rebuilder, the application shall disclose any information that the commissioner may reasonably require.
(f) The application shall be verified by the oath or affirmation of the applicant, if an individual, or if the applicant is a copartnership or corporation, by a partner or officer thereof, as the case may be. Except as provided in section two-a of this article, the application shall be accompanied by a bond of the applicant in the penal sum of ten twenty-five thousand dollars, in the form prescribed by the commissioner, conditioned that the applicant will not in the conduct of his or her business practice any fraud which, or make any fraudulent representation which, shall cause a financial loss to any purchaser, seller or financial institution or agency, or the State of West Virginia, with a corporate surety thereon authorized to do business in this state. The bond shall be effective as of the date on which the license certificate sought is issued.
(g) Upon receipt of any fully completed application, together with any bond required under subsection (f) of this section, the certificate of insurance as required in subsection (a) of this section and the appropriate fee provided for in section ten of this article, the commissioner may conduct any investigation he or she considers necessary to determine the accuracy of any statements contained in the application and the existence of any other facts which he or she considers relevant in considering the application. To facilitate the investigation, the commissioner may withhold issuance or refusal of the license certificate for a period not to exceed twenty days.
(h) Any application for a license certificate under the provisions of this article and any information submitted with the application is confidential for the use of the division. No person shall divulge any information contained in any application or any information submitted with the application except in response to a valid subpoena or subpoena duces tecum issued pursuant to law.
§17A-6-7. When application to be made; expiration of license certificate; renewal.
(a) Every license certificate issued in accordance with the provisions of this article shall, unless sooner suspended or revoked, expire on the thirtieth day of June next following the issuance thereof.
(b) A license certificate may be renewed each year in the same manner, for the same fee as prescribed in section ten of this article and upon the same basis as an original license certificate is issued under section six of this article: Provided, That the commissioner may not renew the license of any new or used motor vehicle dealer who has sold less than eighteen vehicles during the preceding year subject to the following:
(1) This proviso does not apply to a dealer in the business of selling commercial motor vehicles of a gross vehicle weight of twenty-six thousand one pounds or more;
(2) The commissioner may approve the renewal of a dealer selling less than eighteen vehicles based on a finding of extenuating circumstances including, but not limited to, the illness of the dealer, adverse business conditions or sales credited to other types of dealer licenses held by the dealer; and
(3) Any dealer may appeal the commissioner's refusal to the Motor Vehicle Dealers Advisory Board which may consider extenuating circumstances and approve the renewal.

All applications for the renewal of any license certificate shall be filed with the commissioner at least thirty days before the expiration thereof. Any application for renewal of any license certificate not filed at least thirty days before the expiration may not be renewed except upon payment of the same fee as an original license certificate as prescribed in subsection (a), section ten of this article. The commissioner may allow the delinquent applicant to complete an abbreviated application for renewal in lieu of an original application.
§17A-6-15. Temporary registration plates or markers.
(a) In order to permit a vehicle which is sold to a purchaser by a dealer to be operated on the streets and highways pending receipt of the annual registration plate from the division for such vehicle, the commissioner may, subject to the limitations and conditions hereinafter set forth, deliver temporary vehicle registration plates or markers to dealers who in turn may, subject to the limitations and conditions hereinafter set forth, issue the same to purchasers of vehicles, but such purchasers must comply with the pertinent provisions of this section.
(b) Application by a dealer to the commissioner for such temporary registration plates or markers shall be made on the form and in the manner prescribed and furnished by the commissioner for such purpose and shall be accompanied by a fee of three dollars for each such temporary registration plate or marker. The commissioner may require the fee to be remitted to the division in an electronic format. No refund or credit of fees paid by dealers to the commissioner for temporary registration plates or markers shall be allowed, except that in the event the commissioner discontinues the issuance of such temporary plates or markers, dealers returning temporary registration plates or markers to the commissioner may petition for and be entitled to a refund or a credit thereof. No temporary registration plates or markers shall be delivered by the commissioner to any dealer in house trailers only, and no such temporary plates or markers shall be issued for or used on any house trailer for any purpose.
(c) Every dealer who has made application for and received temporary registration plates or markers shall maintain in permanent form a record of all temporary registration plates or markers delivered to him in a manner prescribed by the commissioner, a record of all temporary registration plates or markers issued by him or her, and a record of any other information pertaining to the receipt or the issuance of temporary registration plates or markers which the commissioner may require. Each such record shall be kept for a period of at least three years from the date of the making thereof. Every dealer who issues a temporary registration plate or marker shall, within five working days after he issues such plate or marker, send to the division a copy of the temporary registration plate or marker certificate properly executed by such dealer and the purchaser notify the division in the manner prescribed by the commissioner. No temporary registration plates or markers may be delivered to any dealer until such dealer has fully accounted to the commissioner for the temporary registration plates or markers last delivered to such dealer, by showing the number issued to purchasers by such dealer and any on hand.
(d) A dealer shall may not issue, assign, transfer or deliver a temporary registration plate or marker to anyone other than the bona fide purchaser of the vehicle to be registered; nor shall may a dealer issue a temporary registration plate or marker to anyone possessed of an annual registration plate for a vehicle which has been sold or exchanged, except a dealer may issue a temporary registration plate or marker to the bona fide purchaser of a vehicle to be registered who possesses an annual registration plate of a different class and makes application to the division to exchange such annual registration plate of a different class in accordance with the provisions of section one, article four of this chapter; nor shall may a dealer lend to anyone, or use on any vehicle which he or she may own, a temporary registration plate or marker. It shall be is unlawful for any dealer to issue any temporary registration plate or marker knowingly containing any misstatement of fact, or knowingly to insert any false information upon the face thereof.
(e) Every dealer who issues temporary registration plates or markers shall affix or insert clearly and indelibly on the face of each temporary registration plate or marker in the manner prescribed by the commissioner, the date of issuance and expiration thereof, and the make and motor or serial number of the vehicle for which issued.
(f) If the commissioner finds that the provisions of this section or his or her directions are not being complied with by a dealer, he or she may suspend the right of such dealer to issue temporary registration plates or markers.
(g) Every person to whom a temporary registration plate or marker has been issued shall permanently destroy such temporary registration plate or marker immediately upon receiving the annual registration plate for such vehicle from the division: Provided, That if the annual registration plate is not received within sixty days of the issuance of the temporary registration plate or marker, the owner shall, notwithstanding the fact that the annual registration plate has not been received, immediately and permanently destroy the temporary registration plate or marker: Provided, however, That not more than one temporary registration plate or marker shall be issued to the same bona fide purchaser for the same vehicle.
(h) A temporary registration plate or marker shall expire and become void upon the receipt of the annual registration plate from the division or upon the rescission of the contract to purchase the vehicle in question, or upon the expiration of sixty days from the date of issuance, depending upon whichever event shall first occur.
(i) For the purpose of this section, the term "dealer" includes a wrecker/dismantler/rebuilder and in the context of issuing temporary registration plates, any other business licensed by the division in accordance with the provisions of this chapter and authorized to issue temporary registration plates or markers.
(j) The commissioner may require participation in an electronic temporary plate issuance system by all dealers as a precondition for authority for a dealer to issue temporary license plates or markers.
§17A-6-18a. Motor Vehicle Dealers Advisory Board.
(a) There is continued a Motor Vehicle Dealers Advisory Board to assist and to advise the commissioner on the administration of laws regulating the motor vehicle industry; to work with the commissioner in developing new laws, rules or policies regarding the motor vehicle industry; to advise the commissioner on setting documentary charges or similar charges motor vehicle dealers may charge consumers for documentary services in relation to securing a title, which such charges the commissioner is hereby granted authority to set; and to give the commissioner any further advice and assistance as he or she may, from time to time, require.
The board shall consist of nine members and the Commissioner of Motor Vehicles, or his or her representative, who shall be an ex officio member. Two members shall represent new motor vehicle dealers, with one of these two members representing dealers that sell less than one hundred new vehicles per year; one member shall represent used motor vehicle dealers; one member shall represent wrecker/dismantler/rebuilders; one member shall represent automobile auctions; one member shall represent recreational dealers; one member shall represent the West Virginia Attorney General's office; and two members shall represent consumers. All of the representatives, except the Attorney General representative who shall be designated by the Attorney General, shall be appointed by the Governor with the advice and consent of the Senate, with no more than five representatives being from the same political party.
The terms of the board members shall be for three years. The attorney general representative shall serve continuously.
The board shall meet at least four times annually and at the call of the commissioner.
(b) The commissioner shall consult with the board before he or she takes any disciplinary action against a dealer, an automobile auction or a license service to revoke or suspend a license, place the licensee on probation or levy a civil penalty, unless the commissioner determines that the consultation would endanger a criminal investigation.
(c) The commissioner may consult with the board by mail, by facsimile, by telephone or at a meeting of the board, but the commissioner is not bound by the recommendations of the board. The commissioner shall give members seven days from the date of a mailing or other notification to respond to proposed actions, except in those instances when the commissioner determines that the delay in acting creates a serious danger to the public's health or safety or would unduly compromise the effectiveness of the action.
(d) No action taken by the commissioner is subject to challenge or rendered invalid on account of his or her failure to consult with the board.
(e) The appointed members shall serve without compensation, however, members are entitled to reimbursement of travel and other necessary expenses actually incurred while engaged in legitimate board activities in accordance with the guidelines of the Travel Management Office of the Department of Administration or its successor agency.
ARTICLE 6E. MOTOR VEHICLE SALESPERSON LICENSE.
§17A-6E-2. Definitions.
The following words as used in this article, unless the context otherwise requires, have the following meanings:
(1) 'Applicant' means any person making application for an original or renewal of a salesperson license;
(2) 'Dealer' means any motor vehicle or auction business regulated under the provisions of article six or six-c of this chapter;
(3) 'Licensee' means any person holding a license issued under the provisions of this article;
(4) 'Motor vehicle salesperson' or 'salesperson' means any person employed by a dealer to sell, buy, display and offer for sale or deal in motor vehicles, recreational vehicles or trailers, as those terms are defined in section one of article one of this chapter, for a commission or other valuable consideration, but does not mean any public officer performing his or her official duties or the dealer licensee. A person employed by a dealer as a finance and insurance representative is for the purposes of this article a salesperson. For the purposes of this article, the term 'motor vehicle salesperson' does not apply to persons employed by a dealer in the business of selling commercial motor vehicles with a gross vehicle weight of twenty-six thousand one pounds or more, employees of financial institutions or to businesses licensed as auctions.
CHAPTER 46A. WEST VIRGINIA CONSUMER CREDIT

AND PROTECTION ACT.

ARTICLE 3. FINANCE CHARGES AND RELATED PROVISIONS.
§46A-3-109. Additional charges; credit life or health insurance; notice of cancellation; when refund required; obligations of creditor and insurer; civil penalty; rules relating to insurance.

(a) In addition to the sales finance charge or loan finance charge permitted by this chapter, a creditor may contract for and receive the following additional charges in connection with a consumer credit sale or a consumer loan:
(1) Official fees and taxes;
(2) Charges for insurance as described in subsection (b) of this section: Provided, That nothing contained in this section with respect to insurance in any way limits the power and jurisdiction of the Insurance Commissioner of this state in the premises;
(3) Annual charges, payable in advance, for the privilege of using a lender credit card or similar arrangement which entitles the user to purchase goods or services from at least one hundred persons not related to the issuer of the lender credit card or similar arrangement, under an arrangement pursuant to which the debts resulting from the purchases are payable to the issuer;
(4) Charges for other benefits, including insurance, conferred on the consumer, if the benefits are of value to him or her and if the charges are reasonable in relation to the benefits, are of a type which is not for credit and are excluded as permissible additional charges from the sales finance charge or loan finance charge by rule adopted by the commissioner: Provided, That as to insurance, the policy as distinguished from a certificate of coverage thereunder may only be issued by an individual licensed under the laws of this state to sell the insurance and the determination of whether the charges therefor are reasonable in relation to the benefits shall be determined by the insurance commissioner of this state;
(5) Reasonable closing costs with respect to a debt secured by an interest in land; and
(6) Documentary charge or any other similar charge for documentary services in relation to securing a title, so long as said charge is applied equally to cash customers and credit customers and there is a reasonable relationship between said charge and the benefit conferred on the customer. alike and so long as such documentary charge does not exceed fifty dollars.
(b) A creditor may take, obtain or provide reasonable insurance on the life and earning capacity of any consumer obligated on the consumer credit sale or consumer loan, reasonable insurance on any real or personal property offered as security subject to the provisions of this subsection and section one hundred nine-a of this article and vendor's or creditor's single interest insurance with respect to which the insurer has no right of subrogation. Only one policy of life insurance and/or one policy of health and accident insurance and/or one policy of accident insurance and/or one policy of loss of income insurance on any one consumer may be in force with respect to any one contract or agreement at any one time, but one policy may cover both a consumer and his or her spouse:
(1) The amount, terms and conditions of property insurance shall have a reasonable relation to the existing hazards or risk of loss, damage or destruction and be reasonable in relation to the character and value of the property insured or to be insured; and the term of the insurance shall be reasonable in relation to the terms of credit: Provided, That nothing may prohibit the consumer from obtaining, at his or her option, greater coverages for longer periods of time if he or she so desires;
(2) Life insurance shall be in an initial amount not to exceed the total amount repayable under the consumer credit agreement, and where a consumer credit sale or consumer loan is repayable in installments, such insurance may at no time exceed the scheduled or actual amount of unpaid indebtedness, whichever is greater. Life insurance authorized by this subdivision shall provide that the benefits be paid to the creditor to reduce or extinguish the unpaid indebtedness: Provided, That if a separate charge is made for the insurance and the amount of insurance exceeds the unpaid indebtedness, where not prohibited, then the excess is payable to the estate of the consumer. The initial term of the life insurance in connection with a consumer credit sale, other than a sale pursuant to a revolving charge account, or in connection with a consumer loan, other than a loan pursuant to a revolving loan account, may not exceed the scheduled term of the consumer credit agreement by more than fifteen days. The aggregate amount of periodic benefits payable by credit accident and health insurance in the event of disability, as defined in the policy, and loss of income insurance in the event of involuntary loss of employment, as defined in the policy, may not exceed the unpaid amount of such indebtedness; periodic benefits payable in connection with a consumer credit sale pursuant to a revolving charge account or of a consumer loan pursuant to a revolving loan account may be based upon the authorized credit limit;
(3) When the insurance is obtained or provided by or through a creditor, the creditor may collect from the consumer or include as part of the cash price of a consumer credit sale or as part of the principal of a consumer loan or deduct from the proceeds of any consumer loan the premium or, in the case of group insurance, the identifiable charge. The premium or identifiable charge for the insurance required or obtained by a creditor may equal, but may not exceed the premium rate filed by the insurer with the insurance commissioner. In any case when the creditor collects the entire premium for such insurance in advance, the premium shall be remitted by the creditor to the insurer or the insurance agent, as specified by the insurer, within ten days from or after the end of the month in which the collection was made;
(4) With respect to insurance against loss of or damage to property or against liability, the creditor shall furnish a clear and specific statement in writing to the debtor setting forth the cost of the insurance if obtained from or through the creditor and stating that the debtor may choose the person through whom the insurance is to be obtained;
(5) With respect to consumer credit insurance providing life, accident, health or loss of income coverage, no creditor may require a consumer to purchase the insurance or to purchase the insurance from the creditor or any particular agent, broker or insurance company as a condition precedent to extending credit to or on behalf of such consumer;
(6) When a consumer credit sale or consumer loan, refinancing or consolidation is paid in full, the creditor receiving the payment shall inform the debtor of the cancellation of any consumer credit insurance providing life, accident, health or loss of income coverage and advise the debtor of the application of any unearned premiums to the loan balance. Notices required by this subdivision shall be made in the following manner:
(A) If the insurance was not sold or provided by the creditor, the creditor receiving the payment shall notify the debtor that he or she may have the right to receive a refund of unearned premiums from any other seller or provider of the insurance and advise the debtor of his or her obligation to notify any other insurer of the payment of the loan balance and the cancellation of the consumer credit insurance and request a refund or credit of unearned premiums, if applicable. Such notice shall be sent on a form as prescribed by the insurance commissioner as provided in chapter twenty-nine-a of this code and shall contain the name and address of the seller and the insurer; or
(B) If the creditor was the seller or provider of the consumer credit insurance, the creditor shall:
(I) Notify the insurer or shall cause the insurer to be notified of the cancellation of such insurance; and
(ii) Notify the debtor of the cancellation of the insurance and of the application of any unearned premiums to the loan balance, which notice may be on a form consistent with the general course of business of the creditor;
(7) Upon receipt by the insurer of notification of the cancellation of consumer credit insurance, the insurer shall cancel the insurance effective no later than thirty days from the date of receipt of the notice. Within forty-five days following the date of notification of cancellation of the insurance, the insurer shall pay any refund of unearned premiums to the debtor-insurer or such other person as directed by the debtor-insurer; and
(8) An insurer, seller or creditor who fails to refund any unused insurance premium or provide the proper notification of payoff is liable for civil damages up to three times the amount of the unused premium as well as other remedies as provided by section one hundred nine, article seven of this chapter.
(c) The Insurance Commissioner of this state shall promulgate legislative rules in accordance with the provisions of chapter twenty-nine-a of this code to implement the provisions of this article relating to insurance and the authority of the Insurance Commissioner to promulgate the rules is exclusive notwithstanding any other provisions of this code to the contrary.
And,
That both houses recede from their respective positions as to the title of the bill and agree to a new title as follows:
Com. Sub. for H. B. 4364 - "A Bill to amend and reenact §17A-6-1b, §17A-6-2a, §17A-6-4, §17A-6-7, §17A-6-15 and §17A-6-18a of the Code of West Virginia, 1931, as amended; to amend and reenact §17A-6E-2 of said code; and to amend and reenact §46A-3-109 of said code, all relating to motor vehicle dealers generally; allowing the Commissioner of the Division of Motor Vehicles to enter into agreements with other states to allow out-of-state dealers to issue vehicle registrations; expanding authority of Dealer Recovery Fund Control Board to consider claims against the fund; increasing minimum bond requirement for certain dealers from ten thousand dollars to twenty-five thousand dollars; establishing minimum number of sales by a dealer prior to renewal of a dealer's license and opportunity for appeal; exempting salespersons employed by dealers selling commercial vehicles, financial institutions and auctions from the requirement to obtain a salesperson license; requirements for issuing temporary registration plates; authorizing the commissioner to require participation in an electronic temporary plates or markers program as a precondition for issuance of temporary plates; and transferring to commissioner authority to set documentary or similar charges motor vehicle dealers may charge consumers for documentary services in relation to securing a title, with the advice of the Motor Vehicle Dealers Advisory Board."
Respectfully submitted,
Lidella Wilson Hrutkay,
H. Truman Chafin,

Robert C. Tabb,
Ron Stollings,

Robert A. Schadler,
Frank Deem,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Hrutkay, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
Delegate C. Miller requested to be excused from voting on the passage of Com. Sub. for H. B. 4364 under the provisions of House Rule 49, stating that her spouse was an automobile dealer.
The Speaker refused to excuse the Lady from voting, stating that she was a member of a class of persons possibly to be affected by the passage of the bill and that she demonstrated no direct personal or pecuniary interest therein.
On the passage of the bill, the yeas and nays were taken (Roll No. 470), and there were--yeas 81, nays none, absent and not voting 19, with the absent and not voting being as follows:
Absent And Not Voting: Barker, Beach, Blair, Cann, Craig, Doyle, Eldridge, Ellem, Hamilton, Ireland, Kominar, Mahan, Manchin, Marshall, Paxton, M. Poling, Stemple, Tabb and Williams.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4364) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegates Barker, Hamilton, Ireland and Tabb announced that they were necessarily absent on when the votes were taken on Roll No. 470, and that had they been present, they would have voted "Yea" thereon.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
S. B. 72, Expanding Route 2 and Interstate 68 Authority territory.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Jenkins, Plymale and Yoder.
At 3:45 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 5:30 p.m., and reconvened at that time.
At the request of Delegate DeLong, and by unanimous consent, the House of Delegates returned to the Third Order of Business for the purpose of receiving committee reports.
Committee Reports

Mr. Speaker, Mr. Thompson, from the Committee on Rules, submitted the following report, which was received:
Your Committee on Rules has had under consideration:
H. C. R. 105, The "Elmer and May Cline Memorial Bridge",
H. C. R. 107, The "Wilburn and Effie Cline Memorial Bridge",
H. C. R. 109, Requesting the Joint Committee on Government and Finance study the cost benefit analysis of engineering services and engineer retention within the West Virginia Department of Highways,
H. C. R. 111, Requesting the Joint Committee on Government and Finance to study the condition, fitness, and safety of bridges in the state,
H. C. R. 113, Requesting that the Joint Committee on Government and Finance authorize a study of the impact of climate change,
H. C. R. 114, Requesting that the Joint Committee on Government and Finance authorize a study of litter and landfill avoidance, beverage container recycling and litter control systems,
H. C. R. 115, Requesting the Joint Committee on Government and Finance study the feasability of requiring residential, business and industrial water connections along newly established waterlines,
H. C. R. 116, Requesting that the Joint Committee on Government and Finance authorize the study of the impact that increasing real estate taxes,
H. C. R. 117, Requesting that the Joint Committee on Government and Finance study inclusion of athletic trainer licensure and regulation under the laws governing the West Virginia Board of Physical Therapists,
S. C. R. 6, Requesting Joint Committee on Government and Finance study Universal Voluntary Accounts Program,
S. C. R. 8, Requesting Division of Highways name bridge in Beaver, Raleigh County, "Major Jeff L. Davis Memorial Bridge",
S. C. R. 22, Requesting Division of Highways name bridge in Clarksburg, Harrison County, "PFC Hotty Herrick Bridge",
Com. Sub. for S. C. R. 60, Requesting Joint Committee on Government and Finance study armed forces retirement service credit,
S. C. R. 69, Requesting Joint Committee on Government and Finance study judicial elections,
S. C. R. 71, Requesting Division of Highways name bridge in Grafton, Taylor County, "Floyd 'Scotty' Hamilton: First WVU All American Basketball Player Memorial Bridge",
S. C. R. 77, Urging Congress declare December 7th a national holiday,
And,
H. R. 40, Supporting the nomination of the Blair Mountain Battlefield as a National Historic Site,
And reports the same back with the recommendation that they each be adopted.
At the request of Delegate DeLong, and by unanimous consent, S. C. R. 6, S. C. R. 8, S. C. R. 22, Com. Sub. for S. C. R. 60, S. C. R. 69, S. C. R.71 and S. C. R. 77, H. C. R. 105, H. C. R. 107, H. C. R. 109, H. C. R. 111, H. C. R. 113, H. C. R. 114, H. C. R. 115, H. C. R. 116 and H. C. R. 117 were each taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein on those resolutions requiring the same.
At the request of Delegate DeLong, and by unanimous consent, H. R. 40 was taken up for immediate consideration and adopted.
Delegate Andes requested that the Clerk record him in the Journal as voting "Nay" on the adoption of H. R. 40.
On motion for leave, a resolution was introduced (Originating in the Committee on Rules and reported with the recommendation that it be adopted), which was read by its title as follows:
By Mr. Speaker, Mr. Thompson, and Delegates DeLong, White and Caputo:
H. C. R. 119 - "Requesting that the Joint Committee on Government and Finance authorize the study of the financial stability and investment strategies of the police and fire pension funds in certain West Virginia municipalities and potential funding methods."
Whereas, the police and fire pension funds in many municipalities in the state are significantly underfunded; and
Whereas, the total unfunded liability of those funds exceeds six hundred million dollars; and
Whereas, the return on investment in many of those funds is substantially less than that realized by the Investment Management Board for the state pension funds; and
Whereas, the police officers and fire fighters in these municipalities have an expectation of receiving retirement benefits from the funds to which they and the municipalities have contributed for many years; and
Whereas, the ability of certain of these funds to continue to make payments to retired members is at risk; therefore be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study the financial stability and the investment strategies of the police and fire pension funds in certain West Virginia municipalities and potential funding methods; and, be it
Further Resolved, That the Joint Committee on Government and Finance report to the Regular Session of the Legislature, 2009, on its findings, conclusions and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and, be it
Further Resolved, That the Legislative 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.
At the respective requests of Delegate DeLong, and by unanimous consent, the resoltion (H. C. R. 119) was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Conference Committee Report Availability

At 5:55 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 3215.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4094, Relating to reimbursement of compensation paid to certain state employees for job-related training, education or professional development.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section two, line twenty-three, after the word "circumstances" by inserting the word "when".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4094 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §6C-4-1, §6C-4-2 and §6C-4-3, all relating to reimbursement of compensation paid to certain state employees for training, education and professional development; defining terms; requiring division of personnel propose rules for legislative approval; and setting forth exemptions."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 471), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Fleischauer, Guthrie, Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4094) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4296, Relating to the rights of crime victims.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 4A. POST-CONVICTION HABEAS CORPUS.
§53-4A-7a. Denial of relief; hearings; evidence; record; judgment.
(a) If the petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or the record in the proceedings which resulted in the conviction and sentence, or the record or records in a proceeding or proceedings on a prior petition or petitions filed under the provisions of this article, or the record or records in any other proceeding or proceedings instituted by the petitioner to secure relief from his conviction or sentence, show to the satisfaction of the court that the petitioner is entitled to no relief, or that the contention or contentions and grounds (in fact or law) advanced have been previously and finally adjudicated or waived, the court shall enter an order denying the relief sought. If it appears to the court from said petition, affidavits, exhibits, records and other documentary evidence attached thereto, or the return or other pleadings, or any such record or records referred to above, that there is probable cause to believe that the petitioner may be entitled to some relief and that the contention or contentions and grounds (in fact or law) advanced have not been previously and finally adjudicated or waived, the court shall promptly hold a hearing and/or take evidence on the contention or contentions and grounds (in fact or law) advanced, and the court shall pass upon all issues of fact without a jury. The court may also provide for one or more hearings to be held and/or evidence to be taken in any other county or counties in the state.
(b) A record of all proceedings under this article and all hearings and evidence shall be made and kept. The evidentiary depositions of witnesses taken by either the petitioner or the state, on reasonable notice to the other, may be read as evidence. The court may receive proof by proper oral testimony or other proper evidence. All of the evidence shall be made a part of the record. When a hearing is held and/or evidence is taken by a judge of a circuit court or statutory court in vacation, a transcript of the proceedings shall be signed by the judge and certified to the clerk of the court in which the judgment is to be rendered, and be entered by him among the records of that court. A record of all proceedings in the supreme court of appeals shall be entered among the records of such court.
(c) When the court determines to deny or grant relief, as the case may be, the court shall enter an appropriate order with respect to the conviction or sentence in the former criminal proceedings and such supplementary matters as are deemed necessary and proper to the findings in the case, including, but not limited to, remand, the vacating or setting aside of the plea, conviction and sentence, rearraignment, retrial, custody, bail, discharge, correction of sentence and resentencing, or other matters which may be necessary and proper. In any order entered in accordance with the provisions of this section, the court shall make specific findings of fact and conclusions of law relating to each contention or contentions and grounds (in fact or law) advanced, shall clearly state the grounds upon which the matter was determined, and shall state whether a federal and/or state right was presented and decided. Any order entered in accordance with the provisions of this section shall constitute a final judgment, and, unless reversed, shall be conclusive.
(d) Notwithstanding any provision of law to the contrary, whenever a conviction from a crime of violence is reversed or a sentence of incarceration for such an offence is vacated pursuant to the provisions of this article, the prosecuting attorney of the county of prosecution shall, prior to a retrial or entering into any plea negotiations or sentence negotiations to resolve the matter, notify the victim or if the offence was a homicide, the next of kin of the victim, by United States mail sent to the last known address of said person, if his or her name and address has previously been provided to the prosecuting attorney."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4296 - "A Bill to amend and reenact §53-4A-7 of the Code of West Virginia, 1931, as amended, relating to the rights of crime victims; requiring that prosecuting attorneys provide notice to victims of crimes of violence or next of kin in homicides when a habeas corpus proceeding vacates a conviction or sentence and the victim or next of kin previously provides names and addresses."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 472), and there were--yeas 96, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Fleischauer, Guthrie, Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4296) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with a title amendment, a bill of the House of Delegates as follows:
H. B. 4348, Adding language to the code for fees for tests and certificates that were already imposed.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
H. B. 4348 - "A Bill to amend and reenact §22A-1-4 of the code of West Virginia, 1931, as amended, clarifying and affirming the practice of the Office of Miners' Health, Safety and Training to charge reasonable fees for providing certain tests, certificates and publications."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate title amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 473), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Fleischauer, Guthrie, Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4348) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to recede from its amendment and requested the House of Delegates to agree to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses as to
Com. Sub. for H. B. 4402, Relating to compulsive gambling.
The message further announced that the President of the Senate had appointed as conferees on the part of the Senate the following:
Senators Kessler, Olivaris and McKenzie.
On motion of Delegate DeLong, the House of Delegates agreed to the appointment of a Committee of Conference of three from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates Palumbo, Miley and Hamilton.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4465, Relating to fees charged by the Secretary of State.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 1. FEES AND ALLOWANCES.
§59-1-2. Fees to be charged by Secretary of State.
(a) Except as may be otherwise provided in this code, the Secretary of State shall charge for services rendered in his or her office the following fees to be paid by the person to whom the service is rendered at the time it is done:
(1) For filing, recording, indexing, preserving a record of and issuing a certificate relating to the formation, amendment, change of name, registration of trade name, merger, consolidation, conversion, renewal, dissolution, termination, cancellation, withdrawal revocation and reinstatement of business entities organized within the state, as follows:
(A) Articles of incorporation of for-profit corporation$50.00
(B) Articles of incorporation of nonprofit corporation25.00
(C) Articles of organization of limited liability company100.00
(D) Agreement of a general partnership
50.00

(E) Certificate of a limited partnership
100.00

(F) Agreement of a voluntary association
50.00

(G) Articles of organization of a business trust
50.00

(H) Amendment or correction of articles of incorporation, including change of name or increase of capital stock, in addition to any applicable license tax25.00
(I) Amendment or correction, including change of name, of articles of organization of business trust, limited liability partnership, limited liability company or professional limited liability company or of certificate of limited partnership or agreement of voluntary association25.00
(J) Amendment and restatement of articles of incorporation, certificate of limited partnership, agreement of voluntary association or articles of organization of limited liability partnership, limited liability company or professional limited liability company or business trust25.00
(K) Registration of trade name, otherwise designated as a true name, fictitious name or D.B.A. (doing business as) name for any domestic business entity as permitted by law25.00
(L) Articles of merger of two corporations, limited partnerships, limited liability partnerships, limited liability companies or professional limited liability companies, voluntary associations or business trusts.25.00
(M) Plus for each additional party to the merger in excess of two. . . .15.00
(N) Statement of conversion, when permitted, from one business entity into another business entity, in addition to the cost of filing the appropriate documents to organize the surviving entity 25.00
(O) Articles of dissolution of a corporation, voluntary association or business trust, or statement of dissolution of a general partnership25.00
(P) Revocation of voluntary dissolution of a corporation, voluntary association or business trust15.00
(Q) Articles of termination of a limited liability company, cancellation of a limited partnership or statement of withdrawal of limited liability partnership25.00
(R) Reinstatement of a limited liability company or professional limited liability company after administrative dissolution25.00
(2) For filing, recording, indexing, preserving a record of and issuing a certificate relating to the registration, amendment, change of name, merger, consolidation, conversion, renewal, withdrawal or termination within this state of business entities organized in other states or countries, as follows:
(A) Certificate of authority of for-profit corporation$100.00
(B) Certificate of authority of nonprofit corporation50.00
(C) Certificate of authority of foreign limited liability companies150.00
(D) Certificate of exemption from certificate of authority25.00
(E) Registration of a general partnership50.00
(F) Registration of a limited partnership150.00
(G) Registration of a limited liability partnership for two-year term500.00
(H) Registration of a voluntary association50.00
(I) Registration of a trust or business trust50.00
(J) Amendment or correction of certificate of authority of a foreign corporation, including change of name or increase of capital stock, in addition to any applicable license tax25.00
(K) Amendment or correction of certificate of limited partnership, limited liability partnership, limited liability company or professional limited liability company, voluntary association or business trust25.00
(L) Registration of trade name, otherwise designated as a true name, fictitious name or D.B.A. (doing business as) name for any foreign business entity as permitted by law25.00
(M) Amendment and restatement of certificate of authority or of registration of a corporation, limited partnership, limited liability partnership, limited liability company or professional limited liability company, voluntary association or business trust25.00
(N) Articles of merger of two corporations, limited partnerships, limited liability partnerships, limited liability companies or professional limited liability companies, voluntary associations or business trusts25.00
(O) Plus for each additional party to the merger in excess of two5.00
(P) Statement of conversion, when permitted, from one business entity into another business entity, in addition to the cost of filing the appropriate articles or certificate to organize the surviving entity 25.00
(Q) Certificate of withdrawal or cancellation of a corporation, limited partnership, limited liability partnership, limited liability company, voluntary association or business trust25.00
Notwithstanding any other provision of this section to the contrary, after the thirtieth day of June, two thousand eight, the fees described in this subdivision that are collected for the issuance of a certificate relating to the initial registration of a corporation, limited partnership, domestic limited liability company or foreign limited liability company shall be deposited in the general administrative fees account established by this section.
(3) For receiving, filing and recording a change of the principal or designated office, change of the agent of process and/or change of officers, directors, partners, members or managers, as the case may be, of a corporation, limited partnership, limited liability partnership, limited liability company or other business entity as provided by law$15.00
(4) For receiving, filing and preserving a reservation of a name for each one hundred twenty days or for any other period in excess of seven days prescribed by law for a corporation, limited partnership, limited liability partnership or limited liability company$15.00
(5) For issuing a certificate relating to a corporation or other business entity, as follows:
(A) Certificate of good standing of a domestic or foreign corporation$10.00
(B) Certificate of existence of a domestic limited liability company, and certificate of authorization foreign limited liability company10.00
(C) Certificate of existence of any business entity, trademark or service mark registered with the Secretary of State 10.00
(D) Certified copy of corporate charter or comparable organizing documents for other business entities15.00
(E) Plus, for each additional amendment, restatement or other additional document 5.00
(F) Certificate of registration of the name of a foreign corporation, limited liability company, limited partnership or limited liability partnership25.00
(G) And for the annual renewal of the name registration10.00
(H) Any other certificate not specified in this subdivision10.00
(6) For issuing a certificate other than those relating to business entities, as provided in this subsection, as follows:
(A) Certificate or apostille relating to the authority of certain public officers, including the membership of boards and commissions$10.00
(B) Plus, for each additional certificate pertaining to the same transaction 5.00
(C) Any other certificate not specified in this subdivision
10.00

(D) For acceptance, indexing and recordation of service of process any corporation, limited partnership, limited liability partnership, limited liability company, voluntary association, business trust, insurance company, person or other entity as permitted by law15.00
(E) For shipping and handling expenses for execution of service of process by certified mail upon any defendant within the United States, which fee is to be deposited to the special revenue account established in this section for the operation of the office of the Secretary of State.5.00
(F) For shipping and handling expenses for execution of service of process upon any defendant outside the United States by registered mail, which fee is to be deposited to the special revenue account established in this section for the operation of the office of the Secretary of State. 15.00
(7) For a search of records of the office conducted by employees of or at the expense of the Secretary of State upon request, as follows:
(A) For any search of archival records maintained at sites other than the office of the Secretary of Stateno less than $10.00
(B) For searches of archival records maintained at sites other than the office of the Secretary of State which require more than one hour, for each hour or fraction of an hour consumed in making such search10.00
(C) For any search of records maintained on site for the purpose of obtaining copies of documents or printouts of data
5.00

(D) For any search of records maintained in electronic format which requires special programming to be performed by the state information services agency or other vendor any actual cost, but not less than 25.00
(E) The cost of the search is in addition to the cost of any copies or printouts prepared or any certificate issued pursuant to or based on the search.
(F) For recording any paper for which no specific fee is prescribed5.00
(8) For producing and providing photocopies or printouts of electronic data of specific records upon request, as follows:
(A) For a copy of any paper or printout of electronic data, if one sheet$1.00
(B) For each sheet after the first .50
(C) For sending the copies or lists by fax transmission5.00
(D) For producing and providing photocopies of lists, reports, guidelines and other documents produced in multiple copies for general public use, a publication price to be established by the Secretary of State at a rate approximating 2.00 plus .10 per page and rounded to the nearest dollar.
(E) For electronic copies of records obtained in data format on disk, the cost of the record in the least expensive available printed format, plus, for each required disk, which shall be provided by the Secretary of State5.00
(b) The Secretary of State may propose legislative rules for promulgation for charges for on- line electronic access to database information or other information maintained by the Secretary of State.
(c) For any other work or service not enumerated in this subsection, the fee prescribed elsewhere in this code or a rule promulgated under the authority of this code.
(d) The records maintained by the Secretary of State are prepared and indexed at the expense of the state and those records shall not be obtained for commercial resale without the written agreement of the state to a contract including reimbursement to the state for each instance of resale.
(e) The Secretary of State may provide printed or electronic information free of charge as he or she considers necessary and efficient for the purpose of informing the general public or the news media.
(f) There is hereby continued in the state treasury a special revenue account to be known as the 'service fees and collections' account. Expenditures from the account shall be used for the operation of the office of the Secretary of State and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter five-a of this code. Notwithstanding any other provision of this code to the contrary, except as provided in subsection (h) of this section and section two-a of this article, one half of all the fees and service charges established in the following sections and for the following purposes shall be deposited by the Secretary of State or other collecting agency to that special revenue account and used for the operation of the office of the Secretary of State:
(1) The annual attorney-in-fact fee for corporations and limited partnerships established in section five, article twelve-c, chapter eleven of this code;
(2) The fees received for the sale of the state register, code of state rules and other copies established by rule and authorized by section seven, article two, chapter twenty-nine-a of this code;
(3) The registration fees, late fees and legal settlements charged for registration and enforcement of the charitable organizations and professional solicitations established in sections five, nine and fifteen-b, article nineteen, chapter twenty-nine of this code;
(4) The annual attorney-in-fact fee for limited liability companies as designated in section one hundred eight, article one, chapter thirty-one-b of this code and established in section two hundred eleven, article two of said chapter: Provided, That after the thirtieth day of June, two thousand eight, the annual report fees designated in section one hundred eight, article one, chapter thirty-one-b of this code shall upon collection be deposited in the general administrative fees account described in subsection (h) of this section;
(5) The filing fees and search and copying fees for uniform commercial code transactions established by section five hundred twenty-five, article nine, chapter forty-six of this code;
(6) The annual attorney-in-fact fee for licensed insurers established in section twelve, article four, chapter thirty-three of this code;
(7) The fees for the application and record maintenance of all notaries public established by section one hundred seven, article one, chapter twenty-nine-c of this code;
(8) The fees for the application and record maintenance of commissioners for West Virginia as established by section twelve, article four, chapter twenty-nine of this code;
(9) The fees for registering credit service organizations as established by section five, article six-c, chapter forty-six-a of this code;
(10) The fees for registering and renewing a West Virginia limited liability partnership as established by section one, article ten, chapter forty-seven-b of this code;
(11) The filing fees for the registration and renewal of trademarks and service marks established in section seventeen, article two, chapter forty-seven of this code;
(12) All fees for services, the sale of photocopies and data maintained at the expense of the Secretary of State as provided in this section; and
(13) All registration, license and other fees collected by the Secretary of State not specified in this section.
(g) Any balance in the service fees and collections account established by this section which exceeds five hundred thousand dollars as of the thirtieth day of June, two thousand three, and each year thereafter, shall be expired to the state fund, general revenue fund.
(h)(1) Effective the first day of July, two thousand eight, there is hereby created in the state treasury a special revenue account to be known as the general administrative fees account. Expenditures from the account shall be used for the operation of the office of the Secretary of State and are not authorized from collections, but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon the fulfillment of the provisions set forth in article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to an appropriation by the Legislature. Any balance in the account at the end of each fiscal year shall not revert to the general revenue fund but shall remain in the fund and be expended as provided by this subsection.
(2) After the thirtieth day of June, two thousand eight, all the fees and service charges established in section two-a of this article for the following purposes shall be collected and deposited by the Secretary of State or other collecting agency in the general administrative fees account and used for the operation of the office of the Secretary of State:
(A) The annual report fees paid to the Secretary of State by corporations, limited partnerships, domestic limited liability companies and foreign limited liability companies;
(B) The fees for the issuance of a certificate relating to the initial registration of a corporation, limited partnership, domestic limited liability company or foreign limited liability company described in subdivision (2), subsection (a) of this section; and
(C) The fees for the purchase of date and updates related to the State's Business Organizations Database described in section two-a of this article.
(i) There is continued in the office of the Secretary of State a non-interest bearing, escrow account to be known as the 'prepaid fees and services account'. This account shall be for the purpose of allowing customers of the Secretary of State to prepay for services, with payment to be held in escrow until services are rendered. Payments deposited in the account shall remain in the account until services are rendered by the Secretary of State and at that time the fees will be reallocated to the appropriate general or special revenue accounts. There shall be no fee charged by the secretary of state to the customer for the use of this account and the customer may request the return of any moneys maintained in the account at any time without penalty. The assets of the prepaid fees and services account do not constitute public funds of the state and are available solely for carrying out the purposes of this section."
And,
By amending the title of the bill to read as follows:
H. B. 4465 - "A Bill to amend and reenact §59-1-2 of the Code of West Virginia, 1931, as amended, relating to creating a special revenue account; redirecting certain fees into the account; providing purposes for the expenditure of certain fee collections; continuing the prepaid fees and services account in the Secretary of State's office; assets in account not public funds; and purpose of account."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 474), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4465) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4527, Allowing county commissions to regulate subdivisions and land development without adopting a plan.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page two, section one, lines nine and ten, by striking out all of subdivision (2) and inserting in lieu thereof a new subdivision (2), to read as follows:
"(2) Establishing a planning commission, enacting a subdivision and land development ordinance, and adopting a comprehensive plan for the area included in the subdivision and land development ordinance within three years of the enactment of the subdivision and land development ordinance."
And,
By amending the title to read as follows:
Com. Sub. for H. B. 4527 - "A Bill to amend and reenact §8A-4-1 and §8A-4-2 of the Code of West Virginia, 1931, as amended, all relating to subdivision and land development ordinances; and providing an option to counties and municipalities to regulate subdivisions and land development."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 475), and there were--yeas 94, nays 3, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Ireland, Lane and Sumner.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4527) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4567, Attracting private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. PARKS AND RECREATION.
§20-5-16. Authority to enter into contracts with third parties to construct recreational facilities and cabins; public comment.

(a) Notwithstanding any other provision of this code to the contrary, in addition to all other powers and authority vested in the director, he or she is hereby authorized and empowered to:
(1) Enter into contracts with third parties for the financing, construction and operation of recreational, lodging and ancillary facilities at Chief Logan State Park, Beech Fork State Park, Tomlinson Run State Park, Stonewall Jackson Lake State Park, Lost River State Park and Canaan Valley Resort State Park. The contracts may allow and recognize both direct and subsidiary investment arrangements. The term of the contracts may not exceed a period of twenty-five years, at which time the full title to the recreational facilities shall vest in the state, except as otherwise provided in this section;
(2) Enter into contracts with third parties for the construction, but not the operation, of cabins at any state park or forest. Upon completion of the construction of the cabins, full title to the cabins shall immediately vest in the state and the cabins shall be operated by the parks and recreation section;
(3) Authorize the construction of at least five cabins by any single third party in state parks and state forests which do not offer such the facilities on the effective date of this subsection; and
(4) Propose emergency and legislative rules, in accordance with the provisions of article three, chapter twenty-nine-a of this code, that set the conditions upon which the director may enter into a contract with a single third party proposing to construct cabins.
(b) All contracts shall be presented to the Joint Committee on Government and Finance for review and comment prior to execution.
(c) A contract may provide for renewal for the purpose of permitting continued operation of the facilities at the option of the director for a term or terms not to exceed ten years.
(d) Except as otherwise authorized by this section, no extension or renewal beyond the original twenty-five year term may be executed by the director absent the approval of the Joint Committee on Government and Finance.
(e) Stonewall Jackson Lake State Park. --
(1) With respect to the financing, construction and operation of lodging at Stonewall Jackson Lake State Park, in addition to the lodging in existence as of the first day of July, two thousand eight, contracts entered into pursuant to this section may grant, convey or provide for commercially reasonable lodging usage and related rights and privileges all on terms and conditions as the director may deem appropriate, desirable or necessary to attract private investment for the construction of additional lodging units.
(2) No contracts may be entered into prior to the preparation of lodging unit development plans and standard lodging unit contract documents in a form and at a level of detail acceptable to the United States Army Corps of Engineers and the director, and subsequent to the presentation of the lodging unit development plans and standard lodging unit contract documents to the Joint Committee on Government and Finance for review and comment.
(3) At a minimum, the lodging unit development plans and standard lodging unit contracts shall comply with the following requirements:
(A) That no more than one hundred additional lodging units may be constructed, in addition to the lodging in existence as of the first day of July, two thousand eight;
(B) That lodging unit contracts, with respect to any additional lodging units that may be financed, constructed or operated pursuant to the provision of this section, shall generally conform to the contracts entered into by federal agencies or the National Park Service with private parties regarding privately financed property that is constructed, developed or operated on public lands administered by federal agencies or the National Park Service, subject to modification and adaptation by the director as the director deems appropriate, suitable and relevant to any lodging units to be constructed at Stonewall Jackson Lake State Park.
(C) That a party granted rights and privileges under lodging unit contracts awarded under the provisions of this subsection shall have the right to renew his, her or its lodging unit contract for successive terms not to
extend beyond the termination date of the state's lease with the United States Army Corps of Engineers; or, in the event that the state's lease with the United States Army Corps of Engineers is extended beyond the termination date of the lease as of the first day of July, two thousand seven, not to exceed five ten-year extensions or renewals beyond the termination date of the lease between the state and the United States Army Corps of Engineers in effect as of the first day of July, two thousand seven: Provided, That the party extended the renewal rights is in compliance with all material rights, duties and obligations arising under his, her or its contract and all relevant and applicable provisions of federal, state and local laws, rules, regulations, contracts or agreements at the time of renewal: Provided, however, That if and in the event the director makes an affirmative determination that further renewals beyond the time periods set forth in this subsection are in the best interest of the state and Stonewall Jackson Lake State Park, giving due consideration to financial, operational and other considerations deemed relevant and material by the director, that the director may authorize further renewals;
(D) That all rights and privileges arising under a lodging unit contract shall be transferred to the state or the state's designee upon the expiration or termination of the contract, upon the terms and conditions as each contract may provide or as may otherwise be agreed upon between the parties;
(E)
That the state is not, and cannot be, obligated for any costs, expenses, fees or other charges associated with the development of the additional lodging units under this subsection or the operation and maintenance of the additional lodging units over time, including, but not limited to, costs associated with infrastructure improvements associated with development or operation of the additional lodging units. In his or her discretion, the director may engage professionals to assist the state in connection with its review and oversight of development of the additional lodging units;
(F) That at any time following the initial term and first renewal period of any lodging unit contract entered into with a private party with respect to an additional lodging unit that is constructed under this section, the state shall have the right and option, in its sole discretion, to purchase a lodging unit or lodging units in accordance with the provisions of this subsection and any and all contracts that may be entered into from time to time under this section;
(G) That at its sole option and discretion, the state may elect to purchase a lodging unit from a private party. In that event, the private party shall be paid the fair value of the private party's residual rights and privileges under the lodging unit contract, the residual rights and privileges to be valued generally in accordance with the valuation standards set forth in the National Park Service's standard contract provisions, or other relevant federal agency standards applicable to similar or like contract rights and provisions as may be in existence at the time of transfer, all as the same may be deemed relevant and appropriate by the director, and all in the exercise of the director's reasonable discretion. Nothing in this section is intended or shall be construed to impose an obligation on the state to purchase, purchase, buy, buy out or otherwise acquire or pay for any lodging unit under this section, or to limit the right and ability of a private party to donate or contribute his, her or its interest in and to any lodging unit constructed under this section to the state or any charitable foundation that may be established and operating from time to time to support the continued operation and development of Stonewall Jackson Lake State Park;
(H) That the state shall have no obligation whatsoever to purchase, buy, buy out or otherwise acquire or pay for any lodging unit that is developed or constructed under this section; and
(I) The director shall have the right to review and approve the form and content of all contracts that may be entered into pursuant to this subsection in connection with the development, operation and maintenance of additional lodging units at Stonewall Jackson Lake State Park.
"
And,
By amending the title to read as follows:
H. B. 4567 - "A Bill to amend and reenact §20-5-16 of the Code of West Virginia, 1931, as amended, relating to allowing the Director of the Division of Natural Resources to enter into contracts granting long-term usage and related rights and privileges to third parties sufficient to attract private investment for the financing, construction and operation of additional lodging units at Stonewall Jackson Lake State Park; establishing requirements and restrictions regarding the development, operation and maintenance of additional lodging units and all contracts related to the additional lodging units; requiring the development of a lodging unit development plan that is to be presented to the Joint Committee on Government and Finance prior to development; and protecting the state from any liabilities or obligations associated with the development of the additional lodging units."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 476), and there were--yeas 77, nays 20, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Blair, Border, Canterbury, Carmichael, Duke, Kessler, Lane, Miley, C. Miller, J. Miller, Porter, Schoen, Sobonya, Sumner, Tansill and Walters.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4567) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4588, Relating to public school support.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That §18-9A-5a, §18-9A-5b, §18-9A-10a and §18-9A-22 of the Code of West Virginia, 1931, as amended, be repealed; that §18-1-1 of said code be amended and reenacted; that §18-9A-2, §18-9A-3a, §18-9A-4, §18-9A-5, §18-9A-6, §18-9A-7, §18-9A-8, §18-9A-9, §18-9A-10 and §18-9A-21 of said code be amended and reenacted; and that §18-20-5 of said code be amended and reenacted, all to read as follows:
CHAPTER 18. EDUCATION.

ARTICLE 1. DEFINITIONS; LIMITATIONS OF CHAPTER; GOALS FOR EDUCATION.
§18-1-1. Definitions.
The following words used in this chapter and in any proceedings pursuant thereto have the meanings ascribed to them unless the context clearly indicates a different meaning:
(a) 'School' means the students and teachers assembled in one or more buildings, organized as a unit;
(b) 'District' means county school district;
(c) 'State board' means the West Virginia Board of Education;
(d) 'County board' or 'board' means a county board of education;
(e) 'State superintendent' means the State Superintendent of Free Schools;
(f) 'County superintendent' or 'superintendent' means a county superintendent of schools;
(g) 'Teacher' means a teacher, supervisor, principal, superintendent, or public school librarian registered professional nurse, licensed by the West Virginia Board of Examiners for Registered Professional Nurses and employed by a county board, who has a baccalaureate degree; or any other person regularly employed for instructional purposes in a public school in this state;
(h) 'Service person' or 'service personnel,' whether singular or plural, means any non- teaching school employee who is not included in the meaning of 'teacher' as defined in this section, and who serves the school or schools as a whole, in a nonprofessional capacity, including such areas as secretarial, custodial, maintenance, transportation, school lunch and aides. Any reference to 'service employee' or 'service employees' in this chapter or chapter eighteen-a of this code means service person or service personnel as defined in this section;
(i) 'Social worker' means a nonteaching school employee who, at a minimum, possesses an undergraduate degree in social work from an accredited institution of higher learning and who provides various professional social work services, activities or methods as defined by the State Board for the benefit of students;
(j) 'Regular full-time employee' means any person employed by a county board who has a regular position or job throughout his or her employment term, without regard to hours or method of pay;
(k) 'Career clusters' means broad groupings of related occupations;
(l) 'Work-based learning' means a structured activity that correlates with and is mutually supportive of the school-based learning of the student and includes specific objectives to be learned by the student as a result of the activity;
(m) 'School-age juvenile' means any individual who is entitled to attend or who, if not placed in a residential facility, would be entitled to attend public schools in accordance with: (1) Section five, article two of this chapter; (2) sections fifteen and eighteen, article five of this chapter; or (3) section one, article twenty of this chapter;
(n) 'Student with a disability' means an exceptional child, other than gifted, pursuant to section one, article twenty of this chapter;
(o) 'Low-density county' means a county whose ratio of student population to square miles is less than or equal to the state average ratio as computed by the State Department of Education;
(p) 'High-density county' means a county whose ratio of student population to square miles is greater than the state average ratio as computed by the State Department of Education; and
(q) (o) 'Casual deficit' means a deficit of not more than three percent of the approved levy estimate or a deficit that is nonrecurring from year to year.
ARTICLE 9A. PUBLIC SCHOOL SUPPORT.
§18-9A-2. Definitions.

For the purpose of this article:
(a) 'State board' means the West Virginia Board of Education.
(b) 'County board' or 'board' means a county board of education.
(c) 'Professional salaries' means the state legally mandated salaries of the professional educators as provided in article four, chapter eighteen-a of this code.
(d) 'Professional educator' shall be synonymous with and shall have the same meaning as 'teacher' as defined in section one, article one of this chapter, and includes technology integration specialists.
(e) 'Professional instructional personnel' means a professional educator whose regular duty is as that of a classroom teacher, librarian, counselor, attendance director, or school psychologist or school nurse with a bachelor's degree and who is licensed by the West Virginia Board of Examiners for Registered Professional Nurses. A professional educator having both instructional and administrative or other duties shall be included as professional instructional personnel for that ratio of the school day for which he or she is assigned and serves on a regular full-time basis in appropriate instruction, library, counseling, attendance, or psychologist or nursing duties.
(f) 'Professional student support personnel' means a 'professional person' as those terms are defined in section one, article one, chapter eighteen-a of this code who is assigned and serves on a regular full-time basis as a counselor or as a school nurse with a bachelor's degree and who is licensed by the West Virginia Board of Examiners for Registered Professional Nurses.
(f) (g) 'Service personnel salaries' means the state legally mandated salaries for service personnel as provided in section eight-a, article four, chapter eighteen-a of this code.
(g) (h) 'Service personnel' means all personnel as provided in section eight, article four, chapter eighteen-a of this code. For the purpose of computations under this article of ratios of service personnel to adjusted enrollment net enrollment, a service employee shall be counted as that number found by dividing his or her number of employment days in a fiscal year by two hundred: Provided, That the computation for any service person employed for three and one-half hours or less per day as provided in section eight-a, article four, chapter eighteen-a of this code shall be calculated as one-half an employment day.
(h) (i) 'Net enrollment' means the number of pupils enrolled in special education programs, kindergarten programs and grades one to twelve, inclusive, of the public schools of the county. Commencing with the school year beginning on the first day of July, one thousand nine hundred eighty-eight, Net enrollment further shall include:
(1)
Adults enrolled in regular secondary vocational programs existing as of the effective date of this section, subject to the following:
(1) (A) Net enrollment includes no more than one thousand of those adults counted on the basis of full-time equivalency and apportioned annually to each county in proportion to the adults participating in regular secondary vocational programs in the prior year counted on the basis of full-time equivalency; and
(2) (B) Net enrollment does not include any adult charged tuition or special fees beyond that required of the regular secondary vocational student;
(2) Students enrolled in early childhood education programs as provided in section forty-four, article five of this chapter, counted on the basis of full-time equivalency;
(3) No pupil shall be counted more than once by reason of transfer within the county or from another county within the state, and no pupil shall be counted who attends school in this state from another state;
(4) The enrollment shall be modified to the equivalent of the instructional term and in accordance with the eligibility requirements and rules established by the state board; and
(5) For any county whose net enrollment as determined under all other provisions of this definition is less than one thousand four hundred, the net enrollment of the county shall be increased by an amount to be determined in accordance with the following:
(A) Divide the state's lowest county student population density by the county's actual student population density;
(B) Multiply the amount derived from the calculation in paragraph (A) of this subdivision by three hundred;
(C) If the increase in net enrollment as determined under this subdivision plus the county's net enrollment as determined under all other provisions of this subsection is greater than one thousand four hundred, the increase in net enrollment shall be reduced so that the total does not exceed one thousand four hundred; and
(D) During the two thousand eight - two thousand nine interim period and every three interim periods thereafter, the Legislative Oversight Commission on Education Accountability shall review the provisions of this subdivision to determine whether or not they properly address the needs of counties with low enrollment and a sparse population density.
(I) 'Adjusted enrollment' means the net enrollment plus twice the number of pupils enrolled for special education, including gifted pupils in grades one through eight and exceptional gifted pupils in grades nine through twelve, plus the number of pupils in grades nine through twelve enrolled for honors and advanced placement programs, subject to the following:
(1) No more than four percent of net enrollment of grades one through eight may be counted as enrolled in gifted education and no more than six percent of net enrollment of grades nine through twelve may be counted as enrolled in gifted education, exceptional gifted education (subject to the limitation set forth in section one, article twenty of this chapter) and honors and advanced placement programs for the purpose of determining adjusted enrollment within a county;
(2) Nothing herein shall be construed to limit the number of students who may actually enroll in gifted, exceptional gifted, honors or advanced placement education programs in any county;
(3) No pupil may be counted more than three times for the purpose of determining adjusted enrollment;
(4) The enrollment shall be adjusted to the equivalent of the instructional term and in accordance with the eligibility requirements and rules established by the state board; and
(5) No pupil shall be counted more than once by reason of transfer within the county or from another county within the state, and no pupil shall be counted who attends school in this state from another state.
(j) 'Sparse-density county' means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is less than five.
(k) 'Low-density county' means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is equal to or greater than five but less than ten.
(l) 'Medium-density county' means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is equal to or greater than ten but less than twenty.
(m) 'High-density county' means a county whose ratio of net enrollment, excluding any increase in the net enrollment of counties pursuant to subdivision (5) of the definition of net enrollment, to the square miles of the county is equal to or greater than twenty.
(j) (n) 'Levies for general current expense purposes' means ninety-four percent of the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this code: Provided, That beginning the first day of July, two thousand eight, 'levies for general current expense purposes' means ninety percent of the levy rate for county boards of education calculated or set by the Legislature pursuant to the provisions of section six-f, article eight, chapter eleven of this code: Provided, however, That effective the first day of July, two thousand ten, the definitions set forth in this subsection are subject to the provisions of this article.
(o) 'Technology integration specialist' means a professional educator who has expertise in the technology field and is assigned as a resource teacher to provide information and guidance to classroom teachers on the integration of technology into the curriculum.
(p) 'State aid eligible personnel' means all professional educators and service personnel employed by a county board in positions that are eligible to be funded under this article and whose salaries are not funded by a specific funding source such as a federal or state grant, donation, contribution or other specific funding source not listed.
§18-9A-3a. Total state basic foundation program for fiscal years 2009 through 2013, only.
(a) Notwithstanding any other provisions of this article to the contrary, the total basic foundation program for the state for the fiscal year one thousand nine hundred ninety-four--ninety- five years two thousand nine through two thousand thirteen shall be the sum of the amounts computed for each county in accordance with this section, less the county's local share:
(1) For the fiscal year two thousand nine, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of one fifth above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(2) For the fiscal year two thousand ten, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and
in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of two fifths above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(3) For the fiscal year two thousand eleven, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and
in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of three fifths above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(4) For the fiscal year two thousand twelve, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and
in accordance with the provisions of this article in effect for fiscal year two thousand eight. The total basic foundation program for each county computed in accordance with this article is limited to a growth of four fifths above the amount computed for the county in accordance with the provisions in effect for fiscal year two thousand eight. The total basic foundation program for the county is the greater of the two computations.
(5) For the fiscal year two thousand thirteen and each year thereafter, the department of education shall compute the total basic foundation program for each county in accordance with the provisions of this article and
in accordance with the provisions of this article in effect for fiscal year two thousand eight. For the fiscal year two thousand thirteen only, the total basic foundation program for the county is the greater of the two computations.
Allowance for professional educators as determined in accordance with sections four and five-a of this article;
(2) Allowance for service personnel as determined in accordance with sections five and five-a of this article;
(3) Allowance for fixed charges as determined in accordance with the provisions of sections six and six-a of this article;
(4) Allowance for transportation cost in an amount at least equal to the appropriation for such allowance in the fiscal year one thousand nine hundred ninety-three--ninety-four;
(5) Allowance for administrative cost in accordance with the provisions of sections eight and eight-a of this article;
(6) Allowance for other current expense and substitute employees in an amount at least equal to the appropriation for such allowance in the fiscal year one thousand nine hundred ninety-three-- ninety-four: Provided, That the allocation of such funds for expenditure by faculty senates shall be in accordance with the provisions of section nine of this article;
(7) Allowance to improve instructional programs in an amount at least equal to the appropriation for such allowance in the fiscal year one thousand nine hundred ninety-three--ninety- four.
§18-9A-4. Foundation allowance for professional educators.
(a) The basic foundation allowance to the county for professional educators shall be the amount of money required to pay the state minimum salaries, in accordance with provisions of article four, chapter eighteen-a of this code, to the personnel employed, subject to the following: Provided, That in making this computation no county shall receive an allowance for the personnel which number is in excess of educators fifty-three and one-half professional educators to each one thousand students in adjusted enrollment;
(1) Subject to subdivision (2) of this subsection, in making this computation no county shall receive an allowance for the personnel which number is in excess of professional educators to each one thousand students in net enrollment as follows:
(A) For each high-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and one tenth professional educators per each one thousand students in net enrollment;
(B) For each medium-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and twenty-five one hundredths professional educators per each one thousand students in net enrollment;
(C) For each low-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and four tenths professional educators per each one thousand students in net enrollment; and
(D) For each sparse-density county, the number of personnel for which a county shall receive the allowance shall not exceed seventy-two and fifty-five one hundredths professional educators per each one thousand students in net enrollment;
Provided, however, That any county not qualifying under the provisions of section fourteen of this article is eligible for a growth rate in professional personnel in any one year not to exceed twenty percent of its total potential increase under this provision, except that in no case shall the limit be fewer than five professionals; Provided further, That
(2) For the ratios applicable to each of the four density categories set forth in subdivision (1) of this subsection, the number of professional educators per each one thousand students in net enrollment increases by five one hundredths per year for each of fiscal years two thousand ten, two thousand eleven, two thousand twelve and two thousand thirteen. For each fiscal year thereafter, the ratios remain at the two thousand thirteen level.
(3) The number of and the allowance for personnel paid in part by state and county funds shall be prorated; and And provided further, That
(4) Where two or more counties join together in support of a vocational or comprehensive high school or any other program or service, the professional educators for the school or program may be prorated among the participating counties on the basis of each one's enrollment therein and that the personnel shall be considered within the above-stated limit. And provided further, That in the school year beginning the first day of July, one thousand nine hundred eighty-eight, and in each school year thereafter,
(b) Subject to subsection (c) of this section, each county board shall establish and maintain a minimum ratio of fifty professional instructional personnel per one thousand students in adjusted net enrollment as follows:
(1)
For each high-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-five and eight tenths;
(2) For each medium-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-five and nine tenths;
(3) For each low-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-six;
(4) For each sparse-density county, the minimum number of professional instructional personnel per one thousand students in net enrollment is sixty-six and five one hundredths. And provided further, That no permanent substitute shall be included in the minimum ratio for professional instructional personnel. Permanent substitutes may be included in the computation for professional educators. For the purposes of this section, permanent substitute means a full-time employee who performs the duties of a day-to-day substitute. And provided further, That no county shall have less than a total of five principals and central office administrators.
(c) For the ratios applicable to each of the four density categories set forth in subsection (b) of this subsection, the number of professional instructional personnel per each one thousand students in net enrollment increases by five one hundredths per year for each of fiscal years two thousand ten, two thousand eleven, two thousand twelve and two thousand thirteen. For each fiscal year thereafter, the ratios remain at the two thousand thirteen level.
(d) Any county board which does not establish and maintain this the applicable minimum ratio required in subsection (b) of this section shall suffer a pro rata reduction in the allowance for professional educators under this section: And provided further, Provided, That no county shall be penalized if it has increases in enrollment during that school year: Provided, however, That for the school year two thousand eight - two thousand nine, only, no county shall be penalized for not meeting the applicable minimum ratio required in subsection (b) of this section. And provided further, That Any county board which does not establish and maintain this minimum ratio shall utilize any and all allocations to it by provision of section fourteen of this article solely to employ professional instructional personnel until the minimum ratio is attained. Every county shall utilize methods other than reductions in force, such as attrition and early retirement, before implementing their reductions in force policy to comply with the limitations of this section. It is the intent of the Legislature that in planning reductions in force to comply with reduced ratios of professional educators to students in adjusted enrollment, county boards shall consider positions for elimination in the following order: (1) Central office administrators, (2) assistant principals, and (3) principals.
(e) No county shall increase the number of administrative personnel employed as either professional educators or pay grade 'H' service personnel above the number which were employed, or for which positions were posted, on the thirtieth day of June, one thousand nine hundred ninety, and, therefore, county boards shall whenever possible utilize classroom teachers for curriculum administrative positions through the use of modified or extended contracts. Provided, That the governor shall submit a recommendation to the Legislature at the beginning of the regular session thereof in the year one thousand nine hundred ninety-one, which proposes a method for establishing a responsible level of administrative support for each county school system and a pay scale differentiation on a daily rate between classroom positions and administrative positions when all other factors are equal.
(f) As the number of professional educators per each one thousand students in net enrollment increases during fiscal years two thousand nine through two thousand thirteen, any additional positions that are created as a result of that increase shall be positions that will enhance student achievement and are consistent with the needs as identified in each county board's electronic county strategic improvement plan. County boards are encouraged to fill at least some of the additional positions with technology integration specialists.
(g) During the two thousand eight - two thousand nine interim period, and every three interim periods thereafter, the Legislative Oversight Commission on Education Accountability shall review the four density categories created in section two of this article, the ratios for professional educators established in this section and the ratios for service personnel established in section five of this article.
§18-9A-5. Foundation allowance for service personnel.
(a) The basic foundation allowance to the county for service personnel shall be the amount of money required to pay the annual state minimum salaries in accordance with the provisions of article four, chapter eighteen-a of this code, to such service personnel employed, subject to the following: Provided, That no county shall receive an allowance for an amount in excess of thirty- four service personnel per one thousand students in adjusted enrollment: Provided, however, That the state superintendent of schools is authorized in accordance with rules and regulations established by the state board and upon request of a county superintendent to waive the maximum ratio of thirty- four service personnel per one thousand students in adjusted enrollment and the twenty percent per year growth cap provided in this section, to the extent appropriations are provided, in those cases where the state superintendent determines that student population density and miles of bus route driven or the transportation of students to a county or a multi-county vocational-technical center justify the waiver, except that no waiver shall be granted to any county whose financial statement shows a net balance in general current expense funds greater than three percent at the end of the previous fiscal year: Provided further, That on or before the first day of each regular session of the Legislature, the state board, through the state superintendent, shall make to the Legislature a full report concerning the number of waivers granted and the fiscal impact related thereto. Every county shall utilize methods other than reduction in force, such as attrition and early retirement, before implementing their reductions in force policy to comply with the limitations of this section.
For any county which has in excess of thirty-four service personnel per one thousand students in adjusted enrollment, the allowance shall be computed based upon the average state minimum pay scale salary of all service personnel in the county: Provided, That for any county having fewer than thirty-four service personnel per one thousand students in adjusted enrollment, in any one year, the number of service personnel used in making this computation may be increased the succeeding years by no more than twenty percent per year of its total potential increase under this provision, except that in no case shall the limit be fewer than two service personnel until the county attains the maximum ratio set forth: Provided, however, That
(1) For the school year beginning on the first day of July, two thousand eight, and thereafter, no county shall receive an allowance for an amount in excess of service personnel per one thousand students in net enrollment, as follows:
(A) For each high-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty-three and ninety-seven one hundredths service personnel per one thousand students in net enrollment;
(B) For each medium-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty-four and fifty-three one hundredths service personnel per one thousand students in net enrollment;
(C) For each low-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty-five and one tenth service personnel per one thousand students in net enrollment;
and
(D) For each sparse-density county, the number of personnel for which a county shall receive the allowance shall not exceed forty-five and sixty-eight one hundredths service personnel per one thousand students in net enrollment:
and
(2) Where two or more counties join together in support of a vocational or comprehensive high school or any other program or service, the service personnel for the school or program may be prorated among the participating counties on the basis of each one's enrollment therein and that the personnel shall be considered within the above-stated limit.
§18-9A-6. Foundation allowance for fixed charges.
The total allowance for fixed charges shall be the sum of the following:
(1) The sum of the foundation allowance for professional educators and the foundation allowance for other personnel, as determined in sections four and five above four, five and eight of this article, multiplied by the current social security rate of contribution; plus
(2) The sum of the foundation allowance for professional educators and the foundation allowance for other personnel, as determined in sections four and five above four, five and eight of this article, multiplied by four hundredths of one percent as an allowance for unemployment compensation contribution; plus
(3) The sum of the foundation allowance for professional educators and the foundation allowance for other personnel, as determined in sections four and five above four, five and eight of this article, multiplied by the rate which is derived by dividing the total estimated contributions for workers' compensation for all county boards by the sum of the foundation allowance for professional educators and other personnel, as determined in sections four and five above four, five and eight of this article. The total estimated contribution for workers compensation is determined by multiplying each county board's allowance for professional educators and other personnel, as determined by sections four and five above four, five and eight of this article, by the county's actual contribution rate by using data of the most recent year for which it is available; plus
(4) The teachers retirement fund allowance as determined in section six-a of this article.
18-9A-7. Foundation allowance for transportation cost.
(a) The allowance in the foundation school program for each county for transportation shall be the sum of the following computations:
(1) Eighty-five percent of the transportation cost within each high-density county and ninety percent of the transportation cost within each low-density county for maintenance, operation and related costs, exclusive of all salaries: Provided, That
(1) A percentage of the transportation costs incurred by the county for maintenance, operation and related costs exclusive of all salaries, including the costs incurred for contracted transportation services and public utility transportation, as follows:
(A) For each high-density county, eighty-seven and one half percent;
(B) For each medium-density county, ninety percent;
(C) For each low-density county, ninety-two and one half percent;
(D) For each sparse-density county, ninety-five percent;
(E) For any county for the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multi-county vocational center, the percentage provided in paragraphs (A) through (D) of this subdivision as applicable for the county plus an additional ten percent; and
(F)
For any county for that portion of its school bus system that uses an alternative fuel such as compressed natural gas or other acceptable alternative fuel, the percentage provided in paragraphs (A) through (D) of this subdivision as applicable for the county plus an additional ten percent: for the operation of all or any portion of its school bus system, the allowance in the foundation school program for the county for that portion of its school bus system shall be ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, incurred by the use of the alternatively fueled school buses: Provided, however, That any county using an alternative fuel and qualifying for the additional allowance under this subdivision shall submit a plan regarding the intended future use of alternatively fueled school buses;
(2) The total cost, within each county, of insurance premiums on buses, buildings and equipment used in transportation; Provided, That the premiums were procured through competitive bidding;
(3) An amount equal to eight and one-third percent of the current replacement value of the bus fleet within each county as determined by the state board. The amount shall only be used for the replacement of buses. Buses purchased after the first day of July, one thousand nine hundred ninety- nine, that are driven one hundred eighty thousand miles, regardless of year model, will be subject to the replacement value of eight and one-third percent as determined by the state board. Provided, That for the school year beginning on the first day of July, two thousand four, only, the allowance in the foundation school program for each county for transportation shall not include an amount for the replacement of buses. In addition, in any school year in which its net enrollment increases when compared to the net enrollment the year immediately preceding, a school district may apply to the state superintendent for funding for an additional bus or buses. The state superintendent shall make a decision regarding each application based upon an analysis of the individual school district's net enrollment history and transportation needs: Provided, however, That the superintendent shall not consider any application which fails to document that the county has applied for federal funding for additional buses. If the state superintendent finds that a need exists, a request for funding shall be included in the budget request submitted by the state board for the upcoming fiscal year; and
(4) Eighty-five percent of the cost of contracted transportation services and public utility transportation within each high-density county and ninety percent of the cost of contracted transportation services and public utility transportation within each low-density county;
(5) (4) Aid in lieu of transportation equal to the state average amount per pupil for each pupil receiving the aid within each county. and
(6) Ninety-five percent of the transportation cost for maintenance, operation and related costs, exclusive of all salaries, for transporting students to and from classes at a multicounty vocational center.
(b) The total state share for this purpose shall be the sum of the county shares: Provided, That no county shall receive an allowance which is greater than one-third above the computed state average allowance per transportation mile multiplied by the total transportation mileage in the county exclusive of the allowance for the purchase additional buses. Provided, however, That
(c) One half of one percent of the transportation allowance distributed to each county shall be for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. Provided further, That for the school year beginning on the first day of July, two thousand four, only the transportation allowance of each county shall include an allocation for the purpose of trips related to academic classroom curriculum and not related to any extracurricular activity. The allocation shall equal the amount distributed to the county for this purpose in the school year beginning on the first day of July, two thousand three: And Provided further, That Any remaining funds credited to a county for the purpose of trips related to academic classroom curriculum during the fiscal year shall be carried over for use in the same manner the next fiscal year and shall be separate and apart from, and in addition to, the appropriation for the next fiscal year. And Provided further, That The state board may request a county to document the use of funds for trips related to academic classroom curriculum if the board determines that it is necessary.
(d) The amendments made to this section during the two thousand eight regular session of the Legislature are intended to be temporary while the transportation issue is further studied during the two thousand eight-two thousand nine interim period.
§18-9A-8. Foundation allowance for professional student support services.
(a) The basic foundation allowance to the county for professional student support personnel shall be the amount of money determined in accordance with the following:
(1) The sum of the state minimum salaries, as determined in accordance with the provisions of article four, chapter eighteen of this code, for all state aid eligible school nurse and counselor positions in the county during the two thousand eight fiscal year which number shall be reduced in the same proportion as the number of professional educators allowed to be funded under section four of this article to the total number of professional educators employed that are state aid eligible. In performing this calculation, the numerator shall be the number of professional educators actually funded under section four of this article and the denominator shall be the total number of professional educators employed that are eligible to be funded under section four of this article;
(2) The amount derived from the calculation in subdivision (1) of this subsection is increased by one half percent;
(3) The amount derived from the calculation in subdivision (2) of this subsection is the basic foundation allowance to the county for professional student support personnel for the two thousand nine fiscal year;
(4) For fiscal years two thousand ten, two thousand eleven, two thousand twelve and two thousand thirteen, the basic foundation allowance to the county for professional student support personnel increases by one-half percent per year over the allowance for the previous year; and
(5) For all fiscal years thereafter, the basic foundation allowance to the county for professional student support personnel remains the same amount as in the two thousand thirteen fiscal year.
(b) The additional positions for counselors that may be created as a result of the one percent increase provided pursuant to this section shall be assigned to schools where the counselor can:
(1) Enhance student achievement;
(2) Provide early intervention for students in grades pre-kindergarten through five; and
(3) Enhance student development and career readiness.
§18-9A-9. Foundation allowance for other current expense and substitute employees.

The total allowance for other current expense and substitute employees shall be the sum of the following: Provided, That each of the three amounts set forth in subdivisions (1), (2) and (3) of this section shall not exceed the preceding year's allowance by more than four percent:
(1) For current expense, for the year one thousand nine hundred ninety--ninety-one and thereafter, ten percent of the sum of the computed state allocation for professional educators and service personnel as determined in sections four and five of this article. Distribution to the counties shall be made proportional to the average of each county's average daily attendance for the preceding year and the county's second month net enrollment; plus
(2) For professional educator substitutes or current expense, two and five-tenths percent of the computed state allocation for professional educators as determined in section four and other professional personnel as determined in sections four and eight of this article. Distribution to the counties shall be made proportional to the number of professional educators and other professional personnel authorized for the county in compliance with sections four and five-a eight of this article; plus
(3) For service personnel substitutes or current expense, two and five-tenths percent of the computed state allocation for service personnel as determined in section five of this article. Distribution to the counties shall be made proportional to the number of service personnel authorized for the county in compliance with sections section five and five-a of this article; plus
(4) For academic materials, supplies and equipment for use in instructional programs, two hundred dollars multiplied by the number of professional instructional personnel employed in the schools of the county. Distribution shall be made to each county for allocation to the faculty senate of each school in the county on the basis of two hundred dollars per professional instructional personnel employed at the school. Faculty senate means a faculty senate created pursuant to section five, article five-a of this chapter. Decisions for the expenditure of such funds shall be made at the school level by the faculty senate in accordance with the provisions of said section five, article five-a and shall not be used to supplant the current expense expenditures of the county. Beginning on the first day of September, one thousand nine hundred ninety-four, and every September thereafter, county boards shall forward to each school for the use by faculty senates the appropriation specified in this section. Each school shall be responsible for keeping accurate records of expenditures.
§18-9A-10. Foundation allowance to improve instructional programs.
(a) The total allowance to improve instructional programs shall be the sum of the following:
(1) For instructional improvement in accordance with county and school electronic strategic improvement plans required by section five, article two-e of this chapter, an amount equal to fifteen percent of the increase in the local share amount for the next school year above any required allocation pursuant to section six-b of this article shall be added to the amount of the appropriation for this purpose for the immediately preceding school year. The sum of these amounts shall be distributed to the counties as follows:
(A) One hundred fifty thousand dollars shall be allocated to each county;
(B) Distribution to the counties of the remainder of these funds shall be made proportional to the average of each county's average daily attendance for the preceding year and the county's second month net enrollment. Moneys allocated by provision of this section shall be used to improve instructional programs according to the county and school electronic strategic improvement plans required by section five, article two-e of this chapter and approved by the state board: Provided, That notwithstanding any other provision of this code to the contrary, moneys allocated by provision of this section may also be used in the implementation and maintenance of the uniform integrated regional computer information system.
Up to twenty-five percent of this allocation may be used to employ professional educators and service personnel in counties after all applicable provisions of sections four and five of this article have been fully utilized.
Prior to the use of any funds from this section for personnel costs, the county board must receive authorization from the state superintendent of schools. The state superintendent shall require the county board to demonstrate: (1) The need for the allocation; (2) efficiency and fiscal responsibility in staffing; (3) sharing of services with adjoining counties and the regional educational service agency for that county in the use of the total local district board budget; and (4) employment of technology integration specialists to meet the needs for implementation of the West Virginia 21st Century Strategic Technology Learning Plan. County boards shall make application for available funds for the next fiscal year by the first day of May of each year. On or before the first day of June, the state superintendent shall review all applications and notify applying county boards of the distribution of the allocation. The funds shall be distributed during the fiscal year appropriate. The state superintendent shall require the county board to demonstrate the need for an allocation for personnel based upon the county's inability to meet the requirements of state law or state board policy: Provided, That the funds available for personnel under this section may not be used to increase the total number of professional non-instructional personnel in the central office beyond four. The plan shall be made available for distribution to the public at the office of each affected county board; plus
(2) For the purposes of the West Virginia 21st Century Strategic Technology Learning Plan provided for in section seven, article two-e of this chapter, an amount equal to fifteen percent of the increase in the local share amount for the next school year above any required allocation pursuant to section six-b of this article shall be added to the amount of the appropriation for this purpose for the immediately preceding school year. The sum of these amounts shall be allocated to the counties as provided in section seven, article two-e of this chapter to meet the objectives of the West Virginia 21st Century Strategic Technology Learning Plan; plus
(3) One percent of the state average per pupil state aid multiplied by the number of students enrolled in dual credit, advanced placement and international baccalaureate courses, as defined by the state board, distributed to the counties proportionate to enrollment in these courses in each county; plus
(3) (4) An amount not less than the amount required to meet debt service requirements on any revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, and the debt service requirements on any revenue bonds issued for the purpose of refunding revenue bonds issued prior to the first day of January, one thousand nine hundred ninety-four, shall be paid into the School Building Capital Improvements Fund created by section six, article nine-d of this chapter and shall be used solely for the purposes of that article. The School Building Capital Improvements Fund shall not be utilized to meet the debt services requirement on any revenue bonds or revenue refunding bonds for which moneys contained within the School Building Debt Service Fund have been pledged for repayment pursuant to that section.
(b) When the school improvement bonds secured by funds from the School Building Capital Improvements Fund mature, the State Board of Education shall annually deposit an amount equal to twenty-four million dollars from the funds allocated in this section into the School Construction Fund created pursuant to the provisions of section six, article nine-d of this chapter to continue funding school facility construction and improvements.
(c) Any project funded by the School Building Authority shall be in accordance with a comprehensive educational facility plan which must be approved by the state board and the School Building Authority.
§18-9A-21. Funding for alternative education programs.
(a) An appropriation may be made to the state department to be distributed to county boards for the operation of alternative education and prevention programs established in accordance with policies and procedures adopted by the state board under section six, article two of this chapter. The appropriation shall be an amount equal to twelve dollars per student in net enrollment, subject to appropriation by the Legislature. The state board shall distribute ninety-seven percent of the total appropriation to the county boards proportionate to each county's net enrollment. The remaining three percent of the appropriation shall be retained by the state department to support the provision of services to the county boards in administering programs established in accordance with policies and procedures adopted by the state board under section six, article two of this chapter: Provided, That nothing in this section shall be construed to require any specific level of funding by the Legislature. Provided, however, That ninety percent of any appropriation which may be made for the purposes set forth in this section shall be distributed to county boards on the basis of net enrollment and ten percent of this appropriation shall be distributed on a competitive basis to county boards for the operation of pilot or innovative alternative education programs: Provided further, That for the fiscal year beginning the first day of July, two thousand, the total appropriation which may be made for the purposes set forth in this section shall be distributed to the county boards on the basis of net enrollment.
(b) Each county board shall apply to the state superintendent for receipt of its share of the distribution in the manner set forth by the state superintendent which is consistent with the policies and procedures adopted by the state board for the establishment and maintenance of alternative education programs.
ARTICLE 20. EDUCATION OF EXCEPTIONAL CHILDREN.
§18-20-5. Powers and duties of state superintendent.
(a) The state superintendent of schools shall organize, promote, administer and be responsible for:
(1) Stimulating and assisting county boards of education in establishing, organizing and maintaining special schools, classes, regular class programs, home-teaching and visiting-teacher services.
(2) Cooperating with all other public and private agencies engaged in relieving, caring for, curing, educating and rehabilitating exceptional children, and in helping coordinate the services of such agencies.
(3)(A) Preparing the necessary rules, policies, formula for distribution of available appropriated funds, reporting forms and procedures necessary to define minimum standards in providing suitable facilities for education of exceptional children and ensuring the employment, certification and approval of qualified teachers and therapists subject to approval by the state board of education: Provided, That no state rule, policy or standard under this article or any county board rule, policy or standard governing special education may exceed the requirements of federal law or regulation.
(B) The state superintendent shall conduct a comprehensive review and comparison of annually review the rules, policies and standards of the state with and federal law and report the findings for serving the needs of exceptional children enrolled in the public schools and shall report to the legislative oversight commission on education accountability at its February by the first day of December or as soon thereafter as requested by the commission, two thousand five eight, and in each year thereafter, interim meeting or as soon thereafter as requested by the commission the findings of the review along with an accounting of the services provided and the costs thereof for exceptional children enrolled in the public schools of this state during the latest available school year. An appropriation shall be made to the department of education to be distributed to county boards to support children with high acuity needs that exceed the capacity of county to provide with funds available. Each county board shall apply to the state superintendent for receipt of this funding in a manner set forth by the state superintendent that assesses and takes into account varying acuity levels of the exceptional students. Any remaining funds at the end of a fiscal year from the appropriation shall be carried over to the next fiscal year. When possible, federal funds shall be distributed to county boards for this purpose before any of the state appropriation is distributed. The state board shall promulgate a rule in accordance with the provisions of article three-b, chapter twenty-nine-a of this code that implements the provisions of this subdivision relating to distributing the funds to the county boards. The rule at least shall include a definition for 'children with high acuity needs'.
(4) Receiving from county boards of education their applications, annual reports and claims for reimbursement from such moneys as are appropriated by the Legislature, auditing such claims and preparing vouchers to reimburse said counties the amounts reimbursable to them.
(5) Assuring that all exceptional children in the state, including children in mental health facilities, residential institutions, private schools and correctional facilities as provided in section thirteen-f, article two of this chapter receive an education in accordance with state and federal laws: Provided, That the state superintendent shall also assure that adults in correctional facilities and regional jails receive an education to the extent funds are provided therefor.
(6) Performing other duties and assuming other responsibilities in connection with this program as needed.
(7) Receive the county plan for integrated classroom submitted by the county boards of education and submit a state plan, approved by the state board of education, to the legislative oversight commission on education accountability no later than the first day of December, one thousand nine hundred ninety-five.
(b) Nothing contained in this section shall be construed to prevent any county board of education from establishing and maintaining special schools, classes, regular class programs, home-teaching or visiting-teacher services out of funds available from local revenue."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 477), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Carmichael.
Absent And Not Voting: Mahan, Marshall, Spencer and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4588) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 478), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4588) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Special Calendar

Third Reading

(Continued)

Com. Sub. for S. B. 536, Exempting Supreme Court probation officers' vehicles from certain registration requirements; having been read a third time in earlier proceedings, was reported by the Clerk.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 479), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 536) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 545, Relating to tax administration efficiency; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 480), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 545) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 606, Requiring hiring preference for summer school program positions; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 481), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 606) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 482), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 606) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Com. Sub. for S. B. 645, Exempting city and county hospitals from certain audit requirements; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 483), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 645) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 659, Increasing certain crime victims' benefits; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 484), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 659) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 485), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 659) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 6:13 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 6:30 p.m., and reconvened at that time.
Conference Committee Report Availability

At 6:52 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on S. B. 72.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with a title amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4121, Authorizing the participation of local governments in a purchasing card program to be administered by the Auditor.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate title amendment was reported by the Clerk:
Com. Sub. for H. B. 4121 - "A Bill amend the Code of West Virginia, 1931, as amended, by adding thereto three new sections, designated §6-9-2a, §6-9-2b and §6-9-2c; to amend said code by adding thereto a new section, designated §7-5-7a; and to amend and reenact §8-12-5 of said code, all relating to authorizing the participation of local governments in a purchasing card program to be administered by the Auditor as chief inspector of public offices; authorizing auditor to contract with institutions for provision of the cards; authorizing auditor to propose rules; creating local Government Purchasing Card Expenditure Fund; use of moneys in fund; legislative appropriation of fund; and creating offenses and criminal penalties."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate title amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 486), and there were--yeas 95, nays 1, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Stalnaker.
Absent And Not Voting: Boggs, Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4121) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A messages from the Clerk of the Senate announced concurrence in the title amendment of the House of Delegates to, and the passage as amended, of
Com. Sub. for S. B. 590, Protecting health care workers.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by the Clerk:
S. C. R. 75 - "Requesting the Division of Highways name bridge number 45-64-143.17 (2790) located at the Green Sulphur Springs Interchange on Interstate 64 in Summers County near exit 143 the 'Vaughn Ray York Memorial Bridge'."
Whereas, Vaughn Ray York was an avid photographer using his talents to capture wonderful pictures of the West Virginia wildlife, environment and mountains as well as having those photographs of his home state published in the book Shades of Tomorrow; and
Whereas, An exhibit of Vaughn York's photography is scheduled to be displayed at Tamarack this spring; and
Whereas, Vaughn York worked as a heavy equipment operator for Magnum Coal Company; and
Whereas, Vaughn York was an avid outdoors man, enjoying hunting, fishing and photographing game; and
Whereas, Vaughn York was a kind person, selfless in his desire to help those less fortunate than he, often giving most of his own salary to help those who were in need; and
Whereas, On September 23, 2006, after listening to his beloved West Virginia University Mountaineer football team and taking photographs of an intense storm, Vaughn York was returning home when he was tragically killed at the age of thirty-five; and
Whereas, Vaughn York is dearly missed by his family, friends, and those in the community and the breadth of his graciousness was not discovered until his funeral; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 45-64-143.17 (2790) at the Green Sulphur Springs Interchange on Interstate 64 in Summers County near exit 143 the "Vaughn Ray York Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways have made and be placed signs identifying the bridge as the "Vaughn Ray York 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 Transportation and the family of Vaughn Ray York.
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the resolution (S. C. R. 75) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by the Clerk:
S. C. R. 83 - "Requesting the Division of Highways name bridge number 20-119-13.97 (3232) crossing Jefferson Road in Kanawha County the 'Captain Benjamin D. Tiffner Memorial Bridge'."
Whereas, Benjamin D. Tiffner graduated from the United States Military Academy as an infantry officer in 2000; and
Whereas, In 2006, Benjamin D. Tiffner earned the coveted "Green Beret"; and
Whereas, Benjamin D. Tiffner was deployed to Iraq for his second tour of duty in support of Operation Iraqi Freedom as a member of the Combined Joint Special Operations Task Force- Arabian Peninsula; and
Whereas, On November 7, 2007, Benjamin D. Tiffner was killed in action when his vehicle encountered an IED in the course of conducting a ground convoy in Baghdad, Iraq; and
Whereas, It is fitting to honor Captain Benjamin D. Tiffner for making the ultimate sacrifice for his country and name bridge number 20-119-13.97 (3232) crossing Jefferson Road in Kanawha County the "Captain Benjamin D. Tiffner Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 20-119-13.97 (3232) crossing Jefferson Road in Kanawha County the "Captain Benjamin D. Tiffner Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Captain Benjamin D. Tiffner Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to the family of Benjamin D. Tiffner.
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the resolution (S. C. R. 83) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by the Clerk:
S. C. R. 84 - "Requesting the Division of Highways name bridge number 20-73/3-0.03 crossing Main Campbells Creek on Route 73/3 in Kanawha County the 'Master Sergeant William L. 'Buster' Hackney Memorial Bridge'."
Whereas, William L. Hackney was born December 13, 1927; and
Whereas, William L. Hackney enlisted in the United States Navy at an early age and then cross-trained and entered the United States Army; and
Whereas, William L. Hackney served his country in the Korean War; and
Whereas, William L. Hackney was listed as missing in action as of September 1, 1950; and
Whereas, It is fitting to honor William L. Hackney for his service to his country by naming bridge number 20-73/3-0.03 crossing Main Campbells Creek on Route 73/3 in Kanawha County the "Master Sergeant William L. 'Buster' Hackney Memorial Bridge"; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 20-73/3-0.03 crossing Main Campbells Creek on Route 73/3 in Kanawha County the "Master Sergeant William L. 'Buster' Hackney Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Master Sergeant William L. 'Buster' Hackney Memorial Bridge"; and, be it
Further Resolved, That the Clerk of the Senate is hereby directed to forward a copy of this resolution to the Secretary of the Department of Transportation and to the family of William L. Hackney.
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the resolution (S. C. R. 84) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate and requested the concurrence of the House of Delegates in the adoption of the following concurrent resolution, which was read by the Clerk:
S. C. R. 88 - "Requesting the Division of Highways name bridge number 10525 on Route 65/5 in Delbarton, Mingo County, the 'Thomas Elbert Muncy, Jr., Memorial Bridge'."
Whereas, Thomas Elbert Muncy, Jr., was a life-long resident of the Puritan Mines community where he worked as a miner for 34 years; and
Whereas, Thomas Elbert Muncy, Jr., was one of the first people to push for a vital water project in Puritan Mines which greatly improved the quality of life for all those living in the Puritan Mines community; and
Whereas, Thomas Elbert Muncy, Jr., was a very community-minded individual who diligently worked on projects in his neighborhood; and
Whereas, As a member of the Delbarton Church of God, Thomas Elbert Muncy, Jr., was always looking to help his fellow man, especially during the holiday season, and always made sure that the families in his community were able to eat a delicious holiday dinner; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name bridge number 10525 on Route 65/5 in Delbarton, Mingo County, the "Thomas Elbert Muncy, Jr., Memorial Bridge"; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as the "Thomas Elbert Muncy, Jr., 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 Mayor and City Council of Delbarton.
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the resolution (S. C. R. 88) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At 7:00 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 8:00 p.m., and reconvened at that time.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, with amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 55, The "Brian Keith Paul Cable Barriers".
On motion of Delegate DeLong, the resolution was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the title and inserting in lieu thereof the following:
"Whereas, Brian Keith Paul, born May 18, 1963 to Homer and Ina Paul of Barboursville, West Virginia, brother to Theresa Paul Vithalani, father to Megan, Lenza and Bryce Paul, and husband to Cathy Paul, passed away November 25, 2006, after a courageous battle with colon cancer; and
Whereas, Brian Keith Paul was a model citizen and a good father, active in the lives of his children, often volunteering to coach their various sports teams and determined to teach young people the value of dedication on and off the field. Indeed, Brian's motto was 'Never Say Can't'; a motto, by which he lived, and a virtue that guided him in his pursuit to make I-64 safer for all travelers; and
Whereas, Brian Keith Paul was a third generation mechanic and vice president of Paul's Garage. As part of his occupation, he remediated often fatal car wrecks and, when necessary, preserved persons' belongings for collection by loved ones. His experience cleaning up car accident sites allowed him to witness the devastating effects car crashes have on people in our community; and
Whereas, Brian, in light of his unique perspective regarding vehicular accidents, formed the opinion that too many serious crossover collisions were occurring on I-64, particularly for lack of a median barrier; and
Whereas, Brian, in his efforts to better his community, doggedly pursued the Division of Highways, lobbying them to construct a barrier in the median between the eastbound and westbound lanes of a portion of I-64; and
Whereas, His pursuit took hours of research and countless phone calls, often resulting in dead ends; and
Whereas, Brian persevered through this difficulty by staying true to his motto 'Never Say Can't' and was successful in convincing local and state government officials to construct a median barrier which now spans from mile marker six to mile marker twenty-seven on I-64 and where this barrier has saved many lives; and
Whereas, The Legislature hereby acknowledges that Brian Keith Paul was instrumental in initiating the construction of said cable barrier project and finds that it is right and just to perpetuate and honor his memory by formally naming a bridge on I-64 the 'Brian Keith Paul Memorial Bridge'; therefore, be it
Resolved by the Legislature of West Virginia:
That the Division of Highways is hereby requested to name the bridge located on I-64 at mile marker 19.25, number (2104) in Cabell County the 'Brian Keith Paul Memorial Bridge'; and, be it
Further Resolved, That the Division of Highways is requested to have made and be placed signs identifying the bridge as follows:
'BRIAN KEITH PAUL MEMORIAL BRIDGE

SAFETY ADVOCATE FOR

LIFE-SAVING HIGHWAY CABLE BARRIERS';

Further Resolved, That the Clerk of the House of Delegates forward certified copies of this resolution to the Commissioner of the Division of Highways and to the family members of the late Brian Keith Paul."
And,
By amending the title of the resolution to read as follows:
H. C. R. 55 - "Requesting the Division of Highways to name the bridge located on I-64 at mile marker 19.25, number (2104) in Cabell County, the 'Brian Keith Paul Memorial Bridge'."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
H. C. R. 55, as amended, was then adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4016, Updating meaning of federal adjusted gross income and certain other terms used in West Virginia Personal Income Tax Act.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section nine, line sixteen, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February".
And,
On page four, section nine, lines thirty-seven and thirty-eight, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February".
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 487), and there were--yeas 90, nays none, absent and not voting 10, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Browning, Fleischauer, Guthrie, Mahan, Manchin, Marshall, Palumbo, Schoen and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4016) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 488), and there were--yeas 91, nays none, absent and not voting 9, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Browning, Fleischauer, Guthrie, Mahan, Manchin, Marshall, Schoen and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4016) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Browning requested that the Clerk record him in the Journal as voting "Yea" on Roll. Nos. 487 and 488.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 4017, Updating meaning of federal taxable income and certain other terms used in West Virginia Corporation Net Income Tax Act.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, section three, line seventeen, by striking out the words "first day of January" and inserting in lieu thereof the words "fourteenth day of February".
And,
On page three, section three, lines thirty-six and thirty-seven, by striking out the words "first day of January" and inserting in lieu thereof the words: "fourteenth day of February".
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 489), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Fleischauer, Mahan, Manchin, Marshall, Schoen and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4017) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 490), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Mahan, Manchin, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4017) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4059, Relating to medical qualifications for school bus operators.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page four, section four, following line thirty-six, by adding a new subsection, designated subsection (e), to read as follows:
"(e) Compliance with or failure to comply by a health care provider licensed and authorized pursuant to chapter thirty of this code, with the reporting requirements of the division of motor vehicles regarding the provisions of subsection (c) of this section does not constitute negligence, nor may compliance or noncompliance with the requirements of this section be admissible as evidence of negligence in any civil or criminal action."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4059 - "A Bill to amend and reenact §18A-2-4 of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to employment of school bus operators issued passenger endorsement on commercial driver license through intrastate waiver program for diabetes; eligibility for employment; conditions; negating negligence for noncompliance."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 491), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Mahan, Manchin, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4059) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4433, Increasing the maximum amount of a medical student loan that may be cancelled.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 3. HEALTH PROFESSIONALS STUDENT LOAN PROGRAMS.
§18C-3-1. Health Education Loan Program; establishment; administration; eligibility and loan cancellation; required report.

(a) For the purposes of this section, 'Vice Chancellor of for Administration' means the person employed pursuant to section two, article four, chapter eighteen-b of this code.
(b) There is continued a special revolving fund account under administered by the Commission in the state treasury to be known as the Health Education Student Loan Fund which shall be used to carry out the purposes of this section. The fund consists of the following:
(1) All funds on deposit in the medical student loan fund in the state treasury or which are due or become due for deposit in the fund as obligations made under the previous enactment of this section;
(2) Those funds provided for medical education pursuant to the provisions of section four, article ten, chapter eighteen-b of this code;
(3) Appropriations provided by the Legislature;
(4) Repayment of any loans made under this section;
(5) Amounts provided by medical associations, hospitals or other medical provider organizations in this state, or by political subdivisions of the state, under an agreement which requires the recipient to practice his or her health profession in this state or in the political subdivision providing the funds for a predetermined period of time and in such capacity as set forth in the agreement; and
(6) Other amounts which may be available from external sources.
(c) Balances remaining in the fund at the end of the fiscal year do not expire or revert. All costs associated with administering this section shall be paid from the Health Education Student Loan Fund.
(c) (d) The Vice Chancellor for Administration may utilize any funds in the Health Education Student Loan Fund for the purposes of the Medical Student Loan Program. The Commission shall give priority for the loans to residents of this state, as defined by the Commission. An individual is eligible for loan consideration if the individual meets the following conditions:
(1) Demonstrates financial need;
(2) Meets established academic standards;
(3) Is enrolled or accepted for enrollment at one of the aforementioned schools of medicine the West Virginia University School of Medicine, the Marshall University School of Medicine, or the West Virginia School of Osteopathic Medicine in a program leading to the degree of medical doctor (M.D.) or doctor of osteopathy (D.O.);
(4) The individual Has not yet received one of the degrees provided in subdivision (3) of this subsection; and
(5) Is not in default of any previous student loan.
(d) (e) At the end of each fiscal year, any individual who has received a medical student loan and who has rendered services as a medical doctor or a doctor of osteopathy in this state in a medically underserved area or in a medical specialty in which there is a shortage of physicians, as determined by the Division of Health at the time the loan was granted, may submit to the Commission a notarized, sworn statement of service on a form provided for that purpose. Upon receipt of the statement the Commission shall cancel five ten thousand dollars of the outstanding loan or loans for every full twelve consecutive calendar months of such service.
(e) (f) No later than thirty days following the end of each fiscal year, the Vice Chancellor for Administration shall prepare and submit a report to the Commission for inclusion in the statewide report card required under section eight, article one-b one-d, chapter eighteen-b of this code to be submitted to the Legislative Oversight Commission on Education Accountability established under section eleven, article three-a, chapter twenty-nine-a of this code. At a minimum, the report shall include the following information:
(1) The number of loans awarded;
(2) The total amount of the loans awarded;
(3) The amount of any unexpended moneys in the fund; and
(4) The rate of default during the previous fiscal year on the repayment of previously awarded loans."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 492), and there were--yeas 95, nays none, absent and not voting 5, with the absent and not voting being as follows:
Absent And Not Voting: Beach, Mahan, Manchin, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4433) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4484, Relating to the criminal offense of stalking.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 2. CRIMES AGAINST THE PERSON.
§61-2-9a. Stalking; harassment; penalties; definitions.

(a) Any person who willfully and repeatedly follows another knowing or having reason to know that the conduct causes the person followed to reasonably fear for his or her safety or suffer significant emotional distress. and harasses a person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(b) Any person who willfully and repeatedly follows and makes a credible threat against a person with whom he or she has or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney with the intent to place or placing him or her in reasonable apprehension that he or she or a member of his or her immediate family will suffer death, sexual assault, kidnaping, bodily injury or battery is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(b) (c) Any person who repeatedly harasses or repeatedly makes credible threats against another a person with whom he or she has, or in the past has had or with whom he or she seeks to establish a personal or social relationship, whether or not the intention is reciprocated, or against a member of that person's immediate family, his or her current social companion, his or her professional counselor or attorney, is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county or regional jail for not more than six months or fined not more than one thousand dollars, or both.
(c) (d) Notwithstanding any provision of this code to the contrary, any person who violates the provisions of subsection (a), or (b) or (c) of this section in violation of an order entered by a circuit court, magistrate court or family law master, in effect and entered pursuant to part 48-5-501, et seq., part 48-5-601, et seq. or 48-27-403 of this code is guilty of a misdemeanor and, upon conviction thereof, shall be incarcerated in the county jail for not less than ninety days nor more than one year or fined not less than two thousand dollars nor more than five thousand dollars, or both.
(d) (e) A second or subsequent conviction for a violation of this section occurring within five years of a prior conviction is a felony punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.
(e) (f) Notwithstanding any provision of this code to the contrary, any person against whom a protective order is in effect pursuant to the provisions of §48-27-403 of this code who has been served with a copy of said order or a final order protection entered pursuant to the provisions of §48- 5-601 48-27-501 of this code who is convicted of a violation of the provisions of this section shall be guilty of a felony and punishable by incarceration in a state correctional facility for not less than one year nor more than five years or fined not less than three thousand dollars nor more than ten thousand dollars, or both.
(g) For the purposes of this section:
(1) 'Harasses' means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress; 'Bodily injury' means substantial physical pain, illness or any impairment of physical condition;
(2) 'Credible threat' means a threat of bodily injury made with the apparent ability to carry out the threat and with the result that a reasonable person would believe that the threat could be carried out; and
(3) 'Bodily injury' means substantial physical pain, illness or any impairment of physical condition; and 'Harasses' means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress
(4) 'Immediate family' means a spouse, parent, stepparent, mother-in-law, father-in-law, child, stepchild, sibling, or any person who regularly resides in the household or within the prior six months regularly resided in the household.
(5) 'Repeatedly' means on two or more occasions.
(h) Nothing in this section shall be construed to prevent lawful assembly and petition for the lawful redress of grievances, including, but not limited to: Any labor dispute or employment relations issue; demonstration at the seat of federal, state, county or municipal government; activities protected by the West Virginia constitution or the United States Constitution or any statute of this state or the United States.
(i) (g) Any person convicted under the provisions of this section who is granted probation or for whom execution or imposition of a sentence or incarceration is suspended is to have as a condition of probation or suspension of sentence that he or she participate in counseling or medical treatment as directed by the court.
(j) (h) Upon conviction, the court may issue an order restraining the defendant from any contact with the victim for a period not to exceed ten years. The length of any restraining order shall be based upon the seriousness of the violation before the court, the probability of future violations, and the safety of the victim or his or her immediate family. The duration of the restraining order may be longer than five years only in cases when a longer duration is necessary to protect the safety of the victim or his or her immediate family.
(k) (i) It is a condition of bond for any person accused of the offense described in this section that the person is to have no contact, direct or indirect, verbal or physical, with the alleged victim.
(l) (j) Nothing in this section may be construed to preclude a sentencing court from exercising its power to impose home confinement with electronic monitoring as an alternative sentence.
(k) The Governor's Committee on Crime, Delinquency and Correction, after consultation with representatives of labor, licensed domestic violence programs and rape crisis centers which meet the standards required by the W. Veterans Affairs and Homeland Security. Foundation for Rape Information and Services, shall promulgate rules for state, county, and municipal law-enforcement officers and agencies with regard to enforcement of this section. "
On motion of Delegate DeLong, the House concurred in the Senate amendments with amendment, as follows:
On page two, section nine-a, line twenty-three, by striking out the words "law master" and inserting in lieu thereof the words "court judge".
On page three, section nine-a, line fourteen, after the word "order" by inserting the words "injunctive relief".
On page three, section nine-a, line fifteen, by striking out the citation "§48-27-403" and inserting in lieu thereof the following "section five hundred one, article twenty-seven, chapter forty- eight".
On page three, section nine-a, line sixteen, by striking out the words "a final order protection entered pursuant to the provisions of §48-5-601" and inserting in lieu thereof the following: "section six hundred eight, article five, chapter forty-eight".
On page three, section nine-a, line twenty-three, by inserting the words "(f) For the purposes of this section:".
On page four, section nine-a, line seven, by striking out the word "and".
On page four, section nine-a, line nine, by underlining the following words as though they are new language "'Harasses' means willful conduct directed at a specific person or persons which would cause a reasonable person mental injury or emotional distress".
On page four, section nine-a, line fifteen, by striking out the period and inserting in lieu thereof a semicolon and the word "and".
On page four, section nine-a, line seventeen, by inserting the subsection designation (g) and re-designating the remaining subsections accordingly.
On page six, section nine-a line two, by striking out subsection (k) in its entirety and inserting in lieu thereof the following:
"(l) The Governor's Committee on Crime, Delinquency and Correction, after consultation with representatives of labor, licensed domestic violence programs and rape crisis centers which meet the standards of the West Virginia Foundation for Rape Information and Services, is authorized to promulgate legislative rules and emergency rules pursuant to article three, chapter twenty-nine-a of this code, establishing appropriate standards for the enforcement of this section by state, county, and municipal law-enforcement officers and agencies."
The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 493), and there were--yeas 81, nays 16, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Ashley, Duke, Ellem, Guthrie, Hatfield, Ireland, Lane, C. Miller, J. Miller, Overington, Schoen, Shook, Sobonya, Tabb and Wysong.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4484) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and requested concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4515, Relating to reports by health care providers of persons incompetent to drive an automobile.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page three, section thirteen, lines sixteen through twenty-four, by striking out all of subsection (b) and inserting in lieu thereof a new subsection (b), to read as follows:
"(b) Reports, recommendations or opinions, findings or advice received or made by the division for the purpose of determining whether a person is qualified to be licensed to drive are for the confidential use of the division and exempt from provisions of article one, chapter twenty-nine-B of this code and may only be admitted in proceedings to either suspend, revoke or impose limitations on the use of a driver's license pursuant to section six, subsection (a)(5),article three, chapter seventeen-B of this code or section seven, article three, chapter seventeen-B of this code, or to reinstate the driver's license."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 494), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4515) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
H. B. 4623, Relating to establishing minimum deductions.
On motion of Delegate DeLong, the bill was taken up for immediate consideration:
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 23. ADDITIONAL POWERS, DUTIES AND RESPONSIBILITIES OF GOVERNING BOARDS OF STATE INSTITUTIONS OF HIGHER EDUCATION.

§18-23-4a. Supplemental and additional retirement plans for employees; payroll deductions; authority to match employee contributions; retroactive curative and technical corrective action.

(a) Any reference in this code to the "additional retirement plan" relating to state higher education employees, means the "higher education retirement plan" provided in this section. Any state higher education employee participating in a retirement plan upon the effective date of this section continues to participate in that plan and may not elect to participate in any other state retirement plan. Any such retirement plan continues to be governed by the provisions of law applicable on the effective date of this section.
(b) The Higher Education Policy Commission, on behalf of the governing boards, Council for Community and Technical College Education and itself, shall contract for a retirement plan for its employees, to be known as the "Higher Education Retirement Plan". The governing boards, Council for Community and Technical College Education and Higher Education Policy Commission shall make periodic deductions from the salary payments due the employees in the amount they are required to contribute to the Higher Education Retirement Plan, which deductions shall be six percent.
(c) The Higher Education Policy Commission, Council for Community and Technical College Education and the governing boards, with policy commission approval, may contract for a supplemental retirement plan plans for any or all of their employees to supplement the benefits the employees otherwise receive. The governing boards, Council for Community and Technical College Education and Higher Education Policy Commission may make additional periodic deductions from the salary payments due the employees in the amount they are required to contribute for the supplemental retirement plan.
(d) The Higher Education Policy Commission shall conduct a study of the feasibility of offering multiple vendors of retirement products and services to be offered for the benefit of higher education employees. The commission shall report the findings of the study, along with a plan for offering multiple vendors for the employees, to the Joint Committee on Pensions and Retirement no later than the first day of December, two thousand one. Upon approval by the Joint Committee on Pensions and Retirement, the commission shall provide a choice of vendors to their employees. Any selection of vendors made by the commission shall be determined according to a request for proposal issued pursuant to the provisions of section four, article five, chapter eighteen-b of this code.
(e) (d) Each governing board, the Council for Community and Technical College Education and the Higher Education Policy Commission, by way of additional compensation to their employees, shall pay an amount, which, at a minimum, equal to equals the contributions of the employees into the higher education retirement plan from funds appropriated to the board or commission for personal services.
(e) As part of an overall compensation plan, the Higher Education Policy Commission, the Council for Community and Technical College Education or an institutional governing board, each at its sole discretion, may increase its contributions to any employee retirement plan to an amount that exceeds the contributions of employees.
(f) Each participating employee has a full and immediate vested interest in the retirement and death benefits accrued from all the moneys paid into the Higher Education Retirement Plan or a supplemental retirement plan for his or her benefit. Upon proper requisition of a board, the Council for Community and Technical College Education or the Higher Education Policy Commission, the Auditor periodically shall periodically issue a warrant, payable as specified in the requisition, for the total contributions so withheld from the salaries of all participating employees and for the matching funds of the governing board's board, Council for Community and Technical College Education or Higher Education Policy Commission's matching funds Commission.
(g) Any person whose employment commences on or after the first day of July, one thousand nine hundred ninety-one, and who is eligible to participate in the Higher Education Retirement Plan, shall participate in that plan and is not eligible to participate in any other state retirement system: Provided, That the foregoing provision does not apply to a person designated as a 21st Century Learner Fellow pursuant to section eleven, article three, chapter eighteen-a of this code. The additional retirement plan contracted for by the governing boards prior to the first day of July, one thousand nine hundred ninety-one, remains in effect unless changed by the Higher Education Policy Commission. Nothing in this section may be construed to consider employees of the governing boards or the Council for Community and Technical College Education as employees of the Higher Education Policy Commission, nor is the Higher Education Policy Commission responsible or liable for retirement benefits contracted by, or on behalf of, the governing boards or the Council for Community and Technical College Education.
(h) It is the intent of the Legislature in amending and reenacting this section during its two thousand one regular session solely to:
(1) Maintain the current retirement plans offered to state higher education employees in their current form;
(2) Clarify that employees of the Higher Education Policy Commission are participants in the higher education retirement plan;
(3) Codify the current contribution levels of the governing boards, the Higher Education Policy Commission and their employees toward the present higher education retirement plan;
(4) Make mandatory the minimum contribution levels of the governing boards and Higher Education Policy Commission;
(5) Establish a standardized retirement policy for all state higher education employees as determined by either the policy commission or governing boards;
(6) Clarify the application and purposes of the additional and supplemental retirement plans previously provided for in this section; and
(7) Remove obsolete and archaic language."
And,
By amending the title of the bill to read as follows:
H. B. 4623 - "A Bill to amend and reenact §18-23-4a of the Code of West Virginia, 1931, as amended, relating to the Higher Education Policy Commission; the Council for Community and Technical College Education; governing boards of state institutions of higher education; establishing minimum employer contributions; and allowing contributions to employee retirement plans by certain higher education employers to exceed the percentage contributions of employees."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 495), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4623) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4637, Relating to the deployment of broadband to the remaining unserved areas of the state.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C-5, §31-15C-6, §31-15C- 7, §31-15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12, §31-15C-13 and §31-15C-14, all to read as follows:
ARTICLE 15C. Broadband Deployment.
§31-15C-1. Legislative findings and purpose.

The Legislature finds as follows:
(1) That it is a primary goal of the Governor, the Legislature and the citizens of this state, by the year two thousand ten, to make every municipality, community, and rural area in this state, border to border, accessible to internet communications through the expansion, extension and general availability of broadband services and technology.
(2) That although market-driven deployment has extended broadband access to most of West Virginia's cities, towns, and other concentrated population areas, some areas of the state, mostly rural, remain unserved.
(3) That based upon the same network principles that providers of telephony services have faced since the inception of the telecommunications industry, rising fixed costs and technological limitations prohibit broadband networks from being extended into rural areas where the level of demand in sparsely populated areas may not justify the required costs of construction.
(4) That the unique topography and demography of this state that hinders the provision of broadband access to rural areas of the state specifically disadvantages the elderly and low-income households that are the least likely to own computers or subscribe to internet service. In light of these topographical and demographic challenges, any attempt to fill the gaps in West Virginia's broadband availability must be organized according to the levels of demand in the various unserved areas to which service is sought to be extended.
(5) That, in particular, fair and equitable access to twenty-first century technology that will maximize the functionality of educational resources and educational facilities that are conducive to enabling our children to be exposed to and to receive the best of future teaching and learning is absolutely essential to this state. A quality educational system of the twenty-first century should have access to the best technology tools and processes. Administrators should have, among other things, the electronic resources to monitor student performance, to manage data, and to communicate effectively. In the classroom, every teacher in every school should be provided with online access to educational technology resources and the ability to deliver content standard and objectives to the students of West Virginia. Schools of the twenty-first century require facilities that accommodate changing technologies and twenty-first century instructional processes.
(6) Accordingly, it is the purpose of the Legislature to provide for the development of plans, processes and procedures to be employed and dedicated to extending broadband access to West Virginians, and to their families, by stimulating demand for those services and for encouraging and facilitating the construction of the necessary infrastructure to meet their needs and demands.
(7) In implementing this initiative, progress by market forces and industry is to be respected, and the Legislature intends that governmental assistance and funding is to be used only in those areas without broadband service and not to duplicate or displace broadband service in areas already served or where industry feasibly can be expected to offer services in the reasonably foreseeable future.
§31-15C-2. Definitions.
(a) For the purposes of this article,
(1) 'Broadband' or 'broadband service' means any service providing advanced telecommunications capability with either a downstream data rate or upstream data rate of at least 200 kilobits per second, that does not require the end-user to dial up a connection that has the capacity to always be on, and for which the transmission speeds are based on regular available bandwidth rates, not sporadic or burstable rates, with a minimum downstream-to-upstream data ratio of 10:1 for services with a downstream data rate of up to five megabits per second, and with a minimum upstream data rate of 500 kilobits per second for services with a downstream data rate of five megabits per second or greater.
(2) 'Broadband deployment project' means either (A) a project to provide broadband services to a type 2 and/or type 3 unserved area, as defined in section six of this article; or (B) a project to undertake activities to promote demand for broadband services and broadband applications.
(3) 'Downstream data rate' means the transmission speed from the service provider source to the end-user.
(4) 'Upstream data rate' means the transmission speed from the end-user to the service provider source.
(5) 'Unserved area' means a community that has no access to broadband service.
(b) The definition of the term 'broadband,' the designation of areas that are 'unserved', and the level of service required to qualify for funding of state programs and projects, are based on the Federal Communications Commission's current definition of broadband, which is stated in terms of the number of Kilobits (Kbps) per second, either upstream or downstream. It is the intention of the Legislature that the definition of broadband in this article and the level of service requirements for state funding be promptly updated by future Legislatures to conform with any revisions enacted by Congress or any rule or regulation promulgated by the Federal Communications Commission or other federal agencies involved with deploying and enhancing broadband services.
§31-15C-3. Broadband Deployment Council established; members of council; administrative support.

(a) The Broadband Deployment Council is hereby established. The council is a governmental instrumentality of the state. The exercise by the council of the powers conferred by this article and the carrying out of its purpose and duties shall be considered and held to be, and are hereby determined to be, essential governmental functions and for a public purpose. The council is created under the Department of Commerce for administrative, personnel and technical support services only.
(b) The council shall consist of eleven voting members, designated as follows:
(1) The Governor or his or her designee;
(2) The Secretary of Commerce or his or her designee;
(3) The Secretary of Administration or his or her designee;
(4) The Director of Homeland Security and Emergency Management or his or her designee; and
(5) Seven public members that serve at the will and pleasure of the Governor and are appointed by the Governor with the advice and consent of the Senate, as follows:
(I) One member representing employees of communications and cable providers, who shall be a member or representative of a union representing communications workers;
(ii) One member representing telecommunications providers who provide broadband services in this state;
(iii) One member representing cable operators who provide broadband services in this state;
(iv) One member representing broadband equipment or device manufacturers;
(v) One member representing higher education or secondary education; and
(vi) Two members representing the general public who are residents of the state: Provided, That one member represent rural communities: Provided, however, That both members may not reside in the same congressional district.
(6) In addition to the eleven voting members of the council, the President of the Senate shall name two senators from the West Virginia Senate and the Speaker of the House shall name two delegates from the West Virginia House of Delegates, each to serve in the capacity of an ex officio, non-voting advisory member of the council.
(c) The Governor or his or her designee shall chair the council and appoint one of the other council members to serve as vice chair. In the absence of the Governor or his or her designee, the vice chair shall serve as chair. The council shall appoint a secretary-treasurer who need not be a member of the council and who, among other tasks or functions designated by the council, shall keep records of its proceedings.
(d) The council may appoint committees or subcommittees to investigate and make recommendations to the full council. Members of these committees or subcommittees need not be members of the council.
(e) Six voting members of the council shall constitute a quorum and the affirmative vote of at least the majority of those members present shall be necessary for any action taken by vote of the council.
(f) The council is part-time. Public members appointed by the Governor may pursue and engage in another business or occupation or gainful employment. Any person employed by, owning an interest in, or otherwise associated with a broadband deployment project, project sponsor or project participant may serve as a council member and shall not be disqualified from serving as a council member because of a conflict of interest prohibited under section five, article two, chapter six-b of this code and shall not be subject to prosecution for violation of said section when the violation is created solely as a result of his or her relationship with the broadband deployment project, project sponsor or project participant: Provided, That the member recuses himself or herself from board participation regarding the conflicting issue in the manner set forth in legislative rules promulgated by the West Virginia Ethics Commission.
(g) No member of the council who serves by virtue of his or her office shall receive any compensation or reimbursement of expenses for serving as a member. The public members and members of any committees or subcommittees are entitled to be reimbursed for actual and necessary expenses incurred for each day or portion thereof engaged in the discharge of his or her official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
§31-15C-4. Powers and duties of the council generally.
(a) In addition to the powers set forth elsewhere in this article, the council is hereby granted, has and may exercise all powers necessary or appropriate to carry out and effectuate the purpose and intent of this article. The council shall have the power and capacity to:
(1) Provide consultation services to project sponsors in connection with the planning, acquisition, improvement, construction or development of any broadband deployment project;
(2) To make and execute contracts, commitments and other agreements necessary or convenient for the exercise of its powers, including but not limited to the hiring of consultants to assist in the mapping of the state, categorization of areas within the state, and evaluation of project applications: Provided, That the provisions of article three, chapter five-a of this code do not apply to the agreements and contracts executed under the provisions of this article;
(3) Acquire by gift or purchase, hold or dispose of real property and personal property in the exercise of its powers and performance of its duties as set forth in this article;
(4) Receive and dispense funds appropriated for its use by the Legislature or other funding sources or solicit, apply for and receive any funds, property or services from any person, governmental agency or organization to carry out its statutory duties; and
(5) Perform any and all other activities in furtherance of its purpose.
(b) The council shall exercise its powers and authority to bring broadband service to unserved areas. The council may not duplicate or displace broadband service in areas already served or where private industry feasibly can be expected to offer services in the reasonably foreseeable future.
§31-15C-5. Creation of the Broadband Deployment Fund.
All moneys collected by the council, which may, in addition to appropriations, include gifts, bequests or donations, shall be deposited in a special revenue account in the State Treasury known as the Broadband Deployment Fund. The fund shall be administered by and under the control of the council. Expenditures from the fund shall be for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article two, chapter eleven-b of this code: Provided, That for the fiscal year ending the thirtieth day of June, two thousand nine, expenditures are authorized from collections rather than pursuant to appropriations by the Legislature.
§31-15C-6. Categorization of areas within state for broadband deployment purposes.
Based on its analysis of mapping, broadband demand, and other relevant data, the council shall designate unserved areas of the state as being one of three distinct types. These types are as follows:
(1) Type 1 unserved area: an area in which broadband may be deployed by service providers in an economically feasible manner;
(2) Type 2 unserved area: an unserved area in which broadband may be deployed by broadband service providers and other entities in an economically feasible manner, provided some form of public moneys is made available; and
(3) Type 3 unserved area: an unserved area in which, at present, cable or wireline broadband cannot be deployed in an economically feasible manner and an intermodal approach employing other technologies, such as satellite and wireless, is required to provide that area with high-speed internet access.
§31-15C-7. Retention of outside expert consultant.
In order to assist the council with the highly technical task of categorizing the areas of the state and evaluating and prioritizing projects, the council may retain an outside expert consultant or consultants qualified to map the state on the basis of broadband availability, to evaluate, categorize and prioritize projects, to assist in public outreach and education in order to stimulate demand, to advise the council on the granting or denying of funding to projects, and to provide other support and assistance as necessary to accomplish the purposes of this article. The provisions of article three, chapter five-a of this code, shall not apply to the retention of an outside expert consultant pursuant to this section; Provided, that the council shall select the expert or experts by a competitive selection process.
§31-15C-8. Stimulation of demand through public outreach and education.
In order to implement and carry out the intent of this article, the council may take such actions as it deems necessary or advisable in order to stimulate demand through public outreach and education in unserved areas. The council shall consider the views, if offered, of affected members of the public, including private industry.
§31-15C-9. Development of guidelines and application for funding assistance; emergency rule-making authority.

(a) In order to implement and carry out the intent of this article in type 2 and type 3 unserved areas, the council shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code to develop comprehensive, uniform guidelines for use by the council in evaluating any request by a project sponsor for funding assistance to plan, acquire, construct, improve or otherwise develop a broadband deployment project in a type 2 or type 3 unserved area. The guidelines shall include the following factors: (1) The cost-effectiveness of the project; (2) the economic development benefits of the project; (3) the availability of alternative sources of funding that could help finance the project, including, but not limited to, private grants or federal funding and the efforts undertaken to obtain such funding; (4) if the project requires the construction of a network, the applicant's ability to operate and maintain such network; (5) the degree to which the project advances statewide broadband access and other state broadband planning goals; (6) the proposed technologies, bandwidths, upstream data rates and downstream data rates; (7) the estimated date the project would commence and be completed; (8) how the proposed project compares to alternative proposals for the same unserved area with regard to the number of people served, the amount of financial assistance sought, and the long-term viability of the proposed project; and (9) any other consideration the council deems pertinent.
(b) Under no circumstances may the council's guidelines allow for the approval of any project for broadband service that does not include a minimum downstream transmission rate of 600 kilobits per second (Kbps) and a minimum downstream-to-upstream ratio of 8.5:1 for services with a downstream rate of up to five megabits per second (Mbps). In those cases where a project's broadband service's downstream rate is five Mbps or greater, the council's guidelines must require a minimum upstream data rate of 588 Kbps and allow information applications and market demands to dictate acceptable downstream-to-upstream data ratios.
(c) The council shall create an application form that shall be used by all project sponsors requesting funding assistance from the council to plan, acquire, construct, improve or otherwise develop broadband deployment projects in type 2 or type 3 unserved areas. The application form shall contain all information required by all state agencies that will be required to issue permits and certificates regarding the project. The application shall require the project sponsor to set forth the proposed location of the project; the type(s) of unserved area(s) the project proposes to address, the estimated total cost of the project; the amount of funding assistance required and the specific uses of the funding; other sources of funding available or potentially available for the project; information demonstrating the need for the project; that the proposed funding of the project is the most economically feasible and viable alternative to completing the project; and such other information as the council considers necessary.
§31-15C-10. Requirements for project funding assistance; review of project application by council; competitive applications.

(a) Once the council has categorized unserved areas pursuant to section six of this article, project sponsors may submit applications for funding assistance for projects in those unserved areas. Upon receiving its first completed application for a categorized unserved area, the council shall post notice of such application with the Secretary of State for sixty days so as to allow for competing applications to be submitted to the council. Within thirty days of the close of the aforementioned sixty-day notice period, the council shall review all applications timely received during the sixty-day period and either (I) approve funding for one or more projects after determining that the funding would constitute an appropriate investment of public funds, or (ii) if the council determines that the application does not contain all of the required information or otherwise is incomplete, or that a proposed project is not eligible for funding assistance, or that the proposed project is otherwise not an appropriate or prudent investment of state funds, the council shall deny the project funding request. Prior to approving or denying any funding request, the council may seek the advice of any expert consultant retained pursuant to section seven of this article, but the council is not bound by that advice. The council shall also consider the views, if offered, of affected members of the public, including private industry.
(b) To apply for or receive any funding assistance for a broadband deployment project from the council pursuant to subsection (a) of this section, the project sponsor seeking the funding assistance shall submit a completed application to the council on the form prepared for such purpose by the council pursuant to section nine of this article.
(c) In reviewing each application, the council may use the engineering, financial and technical expertise of outside consultants in addition to the respective staffs of the government agencies and private-sector entities represented on the council or other government agencies.
(d) Notwithstanding any provision of article fifteen-a, chapter thirty-one or any other provision of this code, broadband deployment project proposals submitted to the council for its consideration pursuant to this article and the council's decisions with regard to such projects shall not be subject to review by the West Virginia Infrastructure and Jobs Development Council.
§31-15C-11. Required reporting by state entities.
(a) The secretary of administration shall submit a written report to the council by the thirty- first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, or operated by the state; broadband infrastructure purchased by the state; the demand for the infrastructure in the state; and whether or not that infrastructure is available to the public. If significant changes to any of the information submitted to the council occur, the secretary of administration shall submit a written update the council within sixty days of the change or in the next report, whichever date is sooner.
(b) The secretary of administration shall submit a written report to the council by the thirty- first day of October of each year describing in detail the state portal, any state services or programs that are available to the public on the state portal; the amount of usage of the portal; and efforts to create demand for the portal. If significant changes to any of the information submitted to the council occur, the secretary of administration shall submit a written update the council within sixty days of the change or in the next report, whichever date is sooner.
(c) The chancellor of the higher education policy commission shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the public baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband based educational applications, If significant changes to any of the information submitted to the council occur, the chancellor of the higher education policy commission shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.
(d) The chancellor of the West Virginia Council for Community and Technical College Education shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all public baccalaureate and graduate institutions in the state; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the public baccalaureate and graduate institutions; and all training provided to instructors in the use of broadband and broadband based educational applications, If significant changes to any of the information submitted to the council occur, the chancellor of the West Virginia council for community and technical college education shall submit a written update the council within sixty days of the change or in the next report, whichever date is sooner.
(e) The state superintendent of schools shall submit a written report to the council by the thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used, operated, or purchased by all state schools; all programs or initiatives designed to increase the usage of broadband and broadband based educational applications in the schools and in Pre-K and early childhood education programs; all training provided to teachers in the use of broadband and broadband based educational applications; the availability of an access to broadband in homes and families with children aged four years to eight years; estimates of the number of families with children aged four years to eight years who are using broadband in the homes; estimates of the ownership of computers in families with children aged four years to eight years; and any unmet demand for broadband infrastructure in state schools. If significant changes to any of the information submitted to the council occur, the state superintendent of schools shall submit a written update to the council within sixty days of the change or in the next report, whichever date is sooner.
(f) The chair of the West Virginia healthcare authority shall submit a written report to the council by The thirty-first day of October of each year describing in detail the existing broadband infrastructure owned, leased, used operated, or purchased by all hospitals, medical facilities, clinics, or healthcare providers; all programs, initiatives, or applications utilizing broadband that are promoted by hospitals, medical facilities, clinics, or healthcare providers; and any unmet demand for broadband by hospitals, medical facilities, clinics, or healthcare providers.
§31-15C-12. Limitation of liability.
No person is subject to antitrust or unfair competition liability based on membership or participation in the council, which provides an essential governmental function and enjoys state action immunity.
§31-15C-13. Protection of proprietary business information.
(a) Broadband deployment information provided to the council or its consultants and other agents, including but not limited to physical plant locations, subscriber levels, and market penetration data, constitutes proprietary business information and, along with any other information that constitutes trade secrets, shall be exempt from disclosure under the provisions of chapter twenty- nine-b of this code: Provided, That the information is identified as confidential information when submitted to the council.
(b) Trade secrets or proprietary business information obtained by the council from broadband providers and other persons or entities shall be secured and safeguarded by the state. Such information or data shall not be disclosed to the public or to any firm, individual or agency other than officials or authorized employees of the state. Any person who makes any unauthorized disclosure of such confidential information or data is guilty of a misdemeanor and, upon conviction thereof, may be fined not more than five thousand dollars or confined in a correctional facility for not more than one year, or both.
(c) The official charged with securing and safeguarding trade secrets and proprietary data for the council is the Secretary of Administration, who is authorized to establish and administer appropriate security measures. The council chair shall designate two additional persons to share the responsibility of securing trade secrets or proprietary information. No person will be allowed access to trade secrets or proprietary information without written approval of a minimum of two of the three authorized persons specified above.
§31-15C-14. Expiration of council.
The council shall continue to exist until the thirty-first day of December, two thousand eleven, unless sooner terminated, continued or reestablished pursuant to an Act of the Legislature."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4637 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §31-15C-1, §31-15C-2, §31-15C-3, §31-15C-4, §31-15C- 5, §31-15C-6, §31-15C-7, §31-15C-8, §31-15C-9, §31-15C-10, §31-15C-11, §31-15C-12, §31-15C- 13 and §31-15-14, all relating to the deployment of broadband to the remaining unserved areas of the state; setting forth legislative findings and purpose; providing definitions; establishing the Broadband Deployment Council; establishing procedures for the council, and providing for administrative support; prescribing the powers, duties and responsibilities of the council generally; creating the Broadband Development Fund; categorizing areas of the state according to broadband access; authorizing the retention of an outside expert consultant or consultants to assist in categorization and other functions; providing for the stimulation of demand through public outreach and education; providing funding guidelines; granting emergency rulemaking authority; establishing project requirements for funding assistance; describing the procedures for submitting applications and reviewing applications; requiring public notice; requiring the submission of written reports by certain state agencies or officers; placing limits on liability for membership or participation in the council; protecting confidentiality of trade secrets and proprietary business information; creating the misdemeanor offense of making any unauthorized disclosure of confidential information and establishing the penalties therefor; and providing for the expiration of the council."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 496), and there were--yeas 94, nays 3, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Carmichael and J. Miller.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4637) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
H. B. 3201, Authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto two new sections, designated §11-10-5z and §11-10-7d; that §11-12-5 of said code be amended and reenacted; that said code be amended by adding thereto a new section, designated §11-15-9j; that §11-15-16 of said code be amended and reenacted; and that §11-21-74 of said code be amended and reenacted, all to read as follows:
ARTICLE 10. WEST VIRGINIA TAX PROCEDURE AND ADMINISTRATION ACT.
§11-10-5z. Electronic filing for certain persons.

(a) For tax years beginning on or after the first day of January, two thousand nine, any person required to file a return for a tax administered under the provisions of this article and who had total annual remittance for any single tax equal to or greater than one hundred thousand dollars during the immediately preceding taxable year shall file electronically all returns for all taxes administered under this article.
(b) The Tax Commissioner shall implement the provisions of this section using any combination of notices, forms, instructions and rules that he or she determines necessary. All rules shall be promulgated pursuant to article three, chapter twenty-nine-a of this code.
§11-10-7d. Combining assessments.
(a) The Tax Commissioner may, subsequent to any investigation authorized by subsection (a), section seven of this article that results in an assessment in each of two or more taxes administered pursuant to this article, combine those assessments into a combined single assessment. In order to complete any investigation, the Tax Commissioner may review and combine returns for the taxes that are the subject of the investigation.
(b) If the Tax Commissioner has combined two or more returns as authorized by subsection (a) of this section, the tax remitted shall be applied against taxes in the order provided in a rule promulgated by the Tax Commissioner under the authority of article three, chapter twenty-nine-a of this code.
(c) If the Tax Commissioner issues a combined single assessment as authorized in subsection (a) of this section, the limitations on assessment provided in section fifteen of this article shall apply separately to each tax liability included in the single assessment.
(d) If the Tax Commissioner issues a single assessment as authorized in subsection (a) of this section and the assessment becomes final pursuant to the provisions of section eight of this article, the Tax Commissioner is authorized to pursue collection of the tax resulting from the combined assessment as authorized by this article, including, but not limited to, sections eleven and thirteen of this article, and to record one lien, pursuant to section twelve of this article, that includes all unpaid amounts of all finalized tax liabilities included in that combined assessment.
ARTICLE 12. BUSINESS REGISTRATION TAX.
§11-12-5. Time for which registration certificate granted; power of Tax Commissioner to suspend or cancel certificate; certificate to be permanent until cessation of business for which certificates are granted or revocation, suspension or cancellation by the Tax Commissioner; penalty for involuntary loss of license due to failure to pay required fees and taxes relating to business.

(a) Registration period. -- All business registration certificates issued under the provisions of section four of this article are for the period of one year beginning the first day of July and ending the thirtieth day of the following June: Provided, That beginning on or after the first day of July, one thousand nine hundred ninety-nine, all business registration certificates issued under the provisions of section four of this article shall be issued for two fiscal years of this state, subject to the following transition rule. If the first year for which a business was issued a business registration certificate under this article began on the first day of July of an even-numbered calendar year, then the Tax Commissioner may issue a renewal certificate to that business for the period beginning the first day of July, one thousand nine hundred ninety-nine, and ending the thirtieth day of June, two thousand, upon receipt of fifteen dollars for each such one-year certificate. Thereafter, only certificates covering two fiscal years of this state shall be issued. Notwithstanding any other provisions of this code to the contrary, any certificate of registration granted on or after the first day of July, two thousand ten, shall not be subject to the foregoing requirement that it be renewed, but shall be permanent until cessation of the business for which the certificate of registration was granted or until it is suspended, revoked or cancelled by the Tax Commissioner. Notwithstanding any provision of this code to the contrary, on or after the first day of July, two thousand ten, reference to renewal of the business registration certificate shall refer to the issuance of a new business registration certificate pursuant to expiration, cancellation or revocation of a prior business registration certificate or to reinstatement of a business registration certificate or to reinstatement of a business certificate previously suspended by the Tax Commissioner. On or after the first day of July, two thousand ten, the business registration certificate shall be issued upon payment of a tax of thirty dollars to the Tax Commissioner for new issuances of the business registration certificate or for issuances of the business registration certificate pursuant to expiration, cancellation or revocation of a prior business registration certificate or for reinstatement of a business registration certificate previously suspended by the Tax Commissioner, along with any applicable delinquent fees, interest, penalties and additions to tax.
(b) Revocation or suspension of certificate. --
(1) The Tax Commissioner may cancel or suspend a business registration certificate at any time during a registration period if:
(A) The registrant filed an application for a business registration certificate, or an application for renewal thereof, for the registration period that was false or fraudulent.
(B) The registrant willfully refused or neglected to file a tax return or to report information required by the Tax Commissioner for any tax imposed by or pursuant to this chapter.
(C) The registrant willfully refused or neglected to pay any tax, additions to tax, penalties or interest, or any part thereof, when they became due and payable under this chapter, determined with regard to any authorized extension of time for payment.
(D) The registrant neglected to pay over to the Tax Commissioner on or before its due date, determined with regard to any authorized extension of time for payment, any tax imposed by this chapter which the registrant collects from any person and holds in trust for this state.
(E) The registrant abused the privilege afforded to it by article fifteen or fifteen-a of this chapter to be exempt from payment of the taxes imposed by such articles on some or all of the registrant's purchases for use in business upon issuing to the vendor a properly executed exemption certificate, by failing to timely pay use tax on taxable purchase for use in business or by failing to either pay the tax or give a properly executed exemption certificate to the vendor.
(F) The registrant has failed to pay in full delinquent personal property taxes owing for the calendar year. immediately preceding the calendar year in which the application is made.
(2) On or after the first day of July, two thousand ten, a prospective registrant or a former registrant for which a business registration certificate has been suspended, cancelled or revoked pursuant to the provisions of this article may apply for a new business registration certificate or for reinstatement of a suspended business registration certificate upon payment of all outstanding delinquent fees, taxes, interest, additions to tax and penalties, in addition to payment to the Tax Commissioner of a penalty in the amount of one hundred dollars. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business registration certificate if the prospective or former registrant has provided security acceptable to and authorized by the Tax Commissioner, payable to the Tax Commissioner, sufficient to secure all delinquent fees, taxes, interest, additions to tax and penalties owed by the prospective registrant. The Tax Commissioner may issue a new business registration certificate or reinstate a suspended business registration certificate if the prospective or former registrant has entered into a payment plan approved by the Tax Commissioner by which liability for all delinquent fees, taxes, interest, additions to tax and penalties will be paid in due course and without significant delay. Failure of any registrant to comply with a payment plan pursuant to this provision shall be grounds for immediate suspension or revocation of the registrant's business registration certificate.
(3) On and after the first day of July, two thousand ten, a prospective registrant or a former registrant for which a business registration certificate has been suspended, cancelled or revoked pursuant to the provisions of any article of this code other than this article may apply for a new business registration certificate or for reinstatement of a suspended business registration certificate, only if the prospective or former registrant has complied with all applicable statutory and regulatory requirements for renewal, issuance or reinstatement of the business registration certificate and upon payment to the Tax Commissioner of a penalty in the amount of one hundred dollars.
(2) (4) Before Except pursuant to exceptions specified in this code, before canceling, revoking or suspending any business registration certificate, the Tax Commissioner shall give written notice of his or her intent to suspend, revoke or cancel the business registration certificate of the taxpayer, the reason for the suspension, revocation or cancellation, the effective date of the cancellation, revocation or suspension and the date, time and place where the taxpayer may appear and show cause why such business registration certificate should not be canceled, revoked or suspended. This written notice shall be served on the taxpayer in the same manner as a notice of assessment is served under article ten of this chapter, not less than twenty days prior to the effective date of the cancellation, revocation or suspension. date of the show cause informal hearing. The taxpayer may appeal cancellation, revocation or suspension of its business registration certificate in the same manner as a notice of assessment is appealed under article ten-a of this chapter. Provided, That the The filing of a petition for appeal does not stay the effective date of the suspension, revocation or cancellation. A stay may be granted only after a hearing is held on a motion to stay filed by the registrant upon finding that state revenues will not be jeopardized by the granting of the stay. The Tax Commissioner may, in his or her discretion and upon such terms as he or she may specify, agree to stay the effective date of the cancellation, revocation or suspension until another date certain.
(3) (5) On or before the first day of July, two thousand five, the Tax Commissioner shall propose for promulgation legislative rules establishing ancillary procedures for the Tax Commissioner's suspension of business registration certificates for failure to pay delinquent personal property taxes pursuant to paragraph (F), subdivision (1) of this section. The rules shall at a minimum establish any additional requirements for the provision of notice deemed necessary by the Tax Commissioner to meet requirements of law; establish protocols for the communication and verification of information exchanged between the Tax Commissioner, sheriffs and others; and establish fees to be assessed against delinquent taxpayers that shall be deposited into a special fund which is hereby created and expended for general tax administration by the Tax Division of the Department of Tax and Revenue and for operation of the Tax Division. Upon authorization of the Legislature, the rules shall have the same force and effect as if set forth herein. No provision of this subdivision may be construed to restrict in any manner the authority of the Tax Commissioner to suspend such certificates for failure to pay delinquent personal property taxes under paragraph (C) or (F), subdivision (1) of this section or under any other provision of this code prior to the authorization of the rules.
(c) Refusal to renew. -- The Tax Commissioner may refuse to issue or renew a business registration certificate if the registrant is delinquent in the payment of any tax administered by the Tax Commissioner under article ten of this chapter or the corporate license tax imposed by article twelve-c of this chapter, until the registrant pays in full all the delinquent taxes including interest and applicable additions to tax and penalties. In his or her discretion and upon such terms as he or she may specify specifies, the Tax Commissioner may enter into an installment payment agreement with the taxpayer in lieu of the complete payment. Failure of the taxpayer to fully comply with the terms of the installment payment agreement shall render the amount remaining due thereunder immediately due and payable and the Tax Commissioner may suspend or cancel the business registration certificate in the manner provided in this section.
(d) Refusal to renew due to delinquent personal property tax. -- The Tax Commissioner shall refuse to issue or renew a business registration certificate when informed in writing, signed by the county sheriff, that personal property owned by the applicant and used in conjunction with the business activity of the applicant is subject to delinquent property taxes. The Tax Commissioner shall forthwith notify the applicant that the commissioner will not act upon the application until information is provided evidencing that the taxes due are either exonerated or paid.
(e) Refusal to issue, revocation, suspension and refusal to renew business registration certificate of alter ego, nominee or instrumentality of a business that has previously been the subject of a lawful refusal to issue, revocation, suspension or refuse to renew. --
(1) The tax commissioner may refuse to issue a business registration certificate, or may revoke a business registration certificate or may suspend a business registration certificate or may refuse to renew a business registration certificate for any business determined by the tax commissioner to be an alter ego, nominee or instrumentality of a business that has previously been the subject of a lawful refusal to issue a business registration certificate or of a lawful revocation, suspension or refusal to renew a business registration certificate pursuant to this section, and for which the business registration certificate has not been lawfully reinstated or reissued.
(2) For purposes of this section, a business is presumed to be an alter ego, nominee or instrumentality of another business or other businesses if:
(A) More than twenty percent of the real assets or more than twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been transferred to the other business or businesses, or are or have been used in the operations of the other business or businesses, or more than twenty percent of the real assets or more than twenty percent of the operating assets or more than twenty percent of the tangible personal property of one business are or have been used to collateralize or secure debts or obligations of the other business or businesses;
(B) Ownership of the businesses is so configured that the attribution rules of either Internal Revenue Code section 267 or Internal Revenue Code section 318 would apply to cause ownership of the businesses to be attributed to the same person or entity; or
(C) Substantive control of the businesses is held or retained by the same person, entity or individual, directly or indirectly, or through attribution under paragraph (B) of this subdivision.
ARTICLE 15. CONSUMERS SALES AND SERVICE TAX.
§11-15-9j. Direct pay permits for health care providers.
Any person having a right or claim to any exemption set forth in section nine-I of this article shall first pay to the vendor the tax imposed by this article and then apply to the Tax Commissioner for a refund or credit or, as provided in section nine-d of this article and section three-d of article fifteen-a of this chapter, give to the vendor his or her West Virginia direct pay permit number.
§11-15-16. Tax return and payment; exception; requiring a combined return.
(a) Payment of tax. -- Subject to the exceptions set forth in subsection (b) of this section, the taxes levied by this article are due and payable in monthly installments, on or before the twentieth day of the month next succeeding the month in which the tax accrued, except as otherwise provided in this article.
(b) Combined return required. --
(1) The Tax Commissioner shall, no later than the fifteenth day of June, two thousand eight, design a return that combines filing of the taxes levied by this article and article fifteen-a of this chapter.
(2) Beginning the first day of July, two thousand eight, each person required to file a return required by this article or article fifteen-a of this chapter, or both this article and article fifteen-a of this chapter, shall complete and file the return required by the Tax Commissioner.
(3) The Tax Commissioner may promulgate rules pursuant to article three, chapter twenty-nine-a of this code and otherwise use any combination of notices, forms and instructions he or she determines necessary to implement the use of the form required by subsection (c) of this section.
(b) (c) Tax return. -- The taxpayer shall, on or before the twentieth day of each month, make out and mail to the Tax Commissioner a return for the preceding month, in the form prescribed by the Tax Commissioner, showing:
(1) The total gross proceeds of the vendor's business for the preceding month;
(2) The gross proceeds of the vendor's business upon which the tax is based;
(3) The amount of the tax for which the vendor is liable; and
(4) Any further information necessary in the computation and collection of the tax which the Tax Commissioner may require, except as otherwise provided in this article or article fifteen-b of this chapter.
(c) (d) Remittance to accompany return. -- Except as otherwise provided in this article or article fifteen-b of this chapter, a remittance for the amount of the tax shall accompany the return.
(d) (e) Deposit of collected tax. -- Tax collected by the Tax Commissioner shall be deposited as provided in section thirty of this article, except that:
(1) Tax collected on sales of gasoline and special fuel shall be deposited in the state road fund; and
(2) Any sales tax collected by the Alcohol Beverage Control Commissioner from persons or organizations licensed under authority of article seven, chapter sixty of this code shall be paid into a revolving fund account in the State Treasury, designated the Drunk Driving Prevention Fund, to be administered by the commission on drunk driving prevention, subject to appropriations by the Legislature.
(e) (f) Return to be signed. -- A return shall be signed by the taxpayer or the taxpayer's duly authorized agent, when a paper return is prepared and filed. When the return is filed electronically, the return shall include the digital mark or digital signature, as defined in article three, chapter thirty-nine-a of this code, or the personal identification number of the taxpayer, or the taxpayer's duly authorized agent, made in accordance with any procedural rule that may be promulgated by the Tax Commissioner.
(f) (g) Accelerated payment. --
(1) Taxpayers whose average monthly payment of the taxes levied by this article and article fifteen-a of this chapter during the previous calendar year exceeds one hundred thousand dollars, shall remit the tax attributable to the first fifteen days of June each year on or before the twentieth day of June: Provided, That on and after the first day of June, two thousand seven, the provisions of this subsection that require the accelerated payment on or before the twentieth day of June of the tax imposed by this article and article fifteen-a of this chapter are no longer effective and any such tax due and owing shall be payable in accordance with subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this subsection, the taxpayer shall remit an amount equal to the amount of tax imposed by this article and article fifteen-a of this chapter on actual taxable sales of tangible personal property and custom software and sales of taxable services during the first fifteen days of June or, at the taxpayer's election, the taxpayer may remit an amount equal to fifty percent of the taxpayer's liability for tax under this article on taxable sales of tangible personal property and custom software and sales of taxable services made during the preceding month of May.
(3) For a business which has not been in existence for a full calendar year, the total tax due from the business during the prior calendar year shall be divided by the number of months, including fractions of a month, that it was in business during the prior calendar year; and if that amount exceeds one hundred thousand dollars, the tax attributable to the first fifteen days of June each year shall be remitted on or before the twentieth day of June as provided in subdivision (2) of this subsection.
(4) When a taxpayer required to make an advanced payment of tax under subdivision (1) of this subsection makes out its return for the month of June, which is due on the twentieth day of July, the taxpayer may claim as a credit against liability under this article for tax on taxable transactions during the month of June the amount of the advanced payment of tax made under subdivision (1) of this subsection.
ARTICLE 21. PERSONAL INCOME TAX.
PART I. GENERAL.

§11-21-74. Filing of employer's withholding return and payment of withheld taxes; annual reconciliation; e-filing required for certain tax preparers and employers.

(a) General. -- Every employer required to deduct and withhold tax under this article shall, for each calendar quarter, on or before the last day of the month following the close of such the calendar quarter, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes so required to be deducted and withheld. Where the average quarterly amount so deducted and withheld by any employer is less than one hundred fifty dollars and the aggregate for the calendar year can reasonably be expected to be less than six hundred dollars, the Tax Commissioner may by regulation permit an employer to file an annual return and pay over to the Tax Commissioner the taxes deducted and withheld on or before the last day of the month following the close of the calendar year. Provided, That the The Tax Commissioner may, by nonemergency legislative rules promulgated pursuant to article three, chapter twenty-nine-a of this code, change the minimum amounts established by this subsection. The Tax Commissioner may, if he or she believes such action determines necessary for the protection of the revenues, require any employer to make the return and pay to him or her the tax deducted and withheld at any time or from time to time. Notwithstanding the provisions of this subsection, on or after the first day of January, two thousand nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld, in accordance with the procedures established by the Internal Revenue Service pursuant to section 3402 of the Internal Revenue Code.
(b) Monthly returns and payments of withheld tax on and after the first day of January, two thousand one. -- Notwithstanding the provisions of subsection (a) of this section, on and after the first day of January, two thousand one, every employer required to deduct and withhold tax under this article shall, for each of the first eleven months of the calendar year, on or before the twentieth day of the succeeding month and for the last calendar month of the year, on or before the last day of the succeeding month, file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes so required to be deducted and withheld, if such the withheld taxes aggregate two hundred fifty dollars or more for the month, except any employer with respect to whom the Tax Commissioner may have by regulation provided otherwise in accordance with the provisions of subsection (a) of this section. Notwithstanding the provisions of this subsection, on and after the first day of January, two thousand nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. The due dates for returns and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes, in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.
(c) Annual returns and payments of withheld tax of certain domestic and household employees. -- Employers of domestic and household employees whose withholdings of federal income tax are annually paid and reported by the employer pursuant to the filing of Schedule H of federal form 1040, 1040A, 1040NR, 1040NR-EZ, 1040SS or 1041 may, on or before the thirty-first day of January next succeeding the end of the calendar year for which withholdings are deducted and withheld, file an annual withholding return with the Tax Commissioner and annually remit to the Tax Commissioner West Virginia personal income taxes deducted and withheld for the employees. The Tax Commissioner may promulgate legislative or other rules pursuant to article three, chapter twenty-nine-a of this code for implementation of this subsection. Notwithstanding the provisions of this subsection, on or after the first day of January, two thousand nine, every employer required to deduct and withhold tax under this article shall file a withholding return as prescribed by the Tax Commissioner and pay over to the Tax Commissioner the taxes required to be deducted and withheld. The due dates for annual returns and payments shall be established by the Tax Commissioner to match as closely as practicable the due dates in effect for federal income tax purposes in accordance with the procedures established by the Internal Revenue Service pursuant to Section 3402 of the Internal Revenue Code.
(d) Deposit in trust for Tax Commissioner. -- Whenever any employer fails to collect, truthfully account for or pay over the tax, or to make returns of the tax as required in this section, the Tax Commissioner may serve a notice requiring the employer to collect the taxes which become collectible after service of the notice, to deposit the taxes in a bank approved by the Tax Commissioner, in a separate account, in trust for and payable to the Tax Commissioner and to keep the amount of the tax in the separate account until payment over to the Tax Commissioner. The notice shall remain in effect until a notice of cancellation is served by the Tax Commissioner.
(e) Accelerated payment. -- (1) Notwithstanding the provisions of subsections (a) and (b) of this section, for calendar years beginning after the thirty-first day of December, one thousand nine hundred ninety, every employer required to deduct and withhold tax whose average payment per calendar month for the preceding calendar year under subsection (b) of this section exceeded one hundred thousand dollars shall remit the tax attributable to the first fifteen days of June each year on or before the twenty-third day of June: Provided, That on and after the first day of June, two thousand seven, the provisions of this subsection that require the accelerated payment on or before the twenty-third day of June of the tax imposed by this article are no longer effective and any such tax due and owing shall be payable in accordance with subsection (a) of this section.
(2) For purposes of complying with subdivision (1) of this subsection, the employer shall remit an amount equal to the withholding tax due under this article on employee compensation subject to withholding tax payable or paid to employees for the first fifteen days of June or, at the employer's election, the employer may remit an amount equal to fifty percent of the employer's liability for withholding tax under this article on compensation payable or paid to employees for the preceding month of May.
(3) For an employer which has not been in business for a full calendar year, the total amount the employer was required to deduct and withhold under subsection (b) of this section for the prior calendar year shall be divided by the number of months, including fractions of a month, that it was in business during the prior calendar year and if that amount exceeds one hundred thousand dollars, the employer shall remit the tax attributable to the first fifteen days of June each year on or before the twenty-third day of June, as provided in subdivision (2) of this subsection.
(4) When an employer required to make an advanced payment of withholding tax under subdivision (1) of this subsection makes out its return for the month of June, which is due on the twentieth day of July, that employer may claim as a credit against its liability under this article for tax on employee compensation paid or payable for employee services rendered during the month of June the amount of the advanced payment of tax made under subdivision (1) of this subsection.
(f) The amendments to this section enacted in the year two thousand six are effective for tax years beginning on or after the first day of January, two thousand six.
(g) An annual reconciliation of West Virginia personal income tax withheld shall be submitted by the employer on or before the twenty-eighth day of February following the close of the calendar year, together with Tax Division copies of all withholding tax statements for that preceding calendar year. The reconciliation shall be accompanied by a list of the amounts of income withheld for each employee in such form as the Tax Commissioner prescribes and shall be filed separately from the employer's monthly or quarterly return.
(h) Any employer required to file a withholding return for two hundred fifty or more employees shall file its return using electronic filing as defined in section fifty-four of this article. An employer that is required to file electronically but does not do so is subject to a penalty in the amount of twenty-five dollars per employee for whom the return was not filed electronically, unless the employer shows that the failure is due to reasonable cause and not due to willful neglect."
And,
By amending the title of the bill to read as follows:
H. B. 3201 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §11-10-5z and §11-10-7d; to amend and reenact §11-12-5 of said code; to amend said code by adding thereto a new section, designated §11-15-9j; to amend and reenact §11-15-16 of said code; and to amend and reenact §11-21-74 of said code, all relating to tax administration efficiency and technical advancements; requiring electronic filing of tax returns when the taxpayer meets a certain threshold amount of taxes due; authorizing combined tax assessments; authorizing promulgation of rules to determine the application of partial payments of taxes; authorizing the limitation on assessments to apply separately to each tax in a combined assessment; authorizing the recordation of one lien for all taxes in a combined assessment; prohibiting filing incomplete business registration certificate; specifying the time period for which the business registration certificate is granted; specifying authority of the Tax Commissioner to suspend or cancel certificate; eliminating the periodic biennial business registration certificate renewal requirement; specifying a penalty applied upon issuance, renewal or reinstatement of the business registration certificate pursuant to involuntary cancellation, revocation or suspension of the business registration certificate; prohibiting filing incomplete returns for consumers sales and service tax and use tax; authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations; and defining alter ego; allowing assertion of the consumers sales and use tax exemptions authorized under section nine-I, article fifteen, chapter eleven of the Code of West Virginia to be asserted by use of a direct pay permit; requiring the Tax Commissioner to design a combined reporting form; requiring taxpayers to use the form specified by the Tax Commissioner; authorizing the Tax Commissioner to promulgate necessary rules; and prohibiting filing incomplete filing of withholding tax returns."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments with amendment, as follows:
On page one, by amending the title of the bill to read as follows:
H. B. 3201 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto two new sections, designated §11-10-5z and §11-10-7d; to amend and reenact §11-12-5 of said code; to amend said code by adding thereto a new section, designated §11-15-9j; to amend and reenact §11-15-16 of said code; and to amend and reenact §11-21-74 of said code, all relating to the procedure, assessment, collection, efficient administration and technical advancements for certain taxes; requiring electronic filing of tax returns when the taxpayer meets a certain threshold amount of taxes due; authorizing combined tax assessments; authorizing promulgation of rules to determine the application of partial payments of taxes; authorizing the limitation on assessments to apply separately to each tax in a combined assessment; authorizing the recordation of one lien for all taxes in a combined assessment; prohibiting filing incomplete business registration certificate; specifying the time period for which the business registration certificate is granted; specifying authority of the Tax Commissioner to suspend or cancel certificate; eliminating the periodic biennial business registration certificate renewal requirement; specifying a penalty applied upon issuance, renewal or reinstatement of the business registration certificate pursuant to involuntary cancellation, revocation or suspension of the business registration certificate; prohibiting filing incomplete returns for consumers sales and service tax and use tax; authorizing the tax commissioner to refuse, revoke, suspend or refuse to renew a business registration certificate for a business that is the alter ego, nominee or instrumentality of a business in certain situations; and defining alter ego; allowing assertion of the consumers sales and use tax exemptions authorized under section nine-i, article fifteen, chapter eleven of the Code of West Virginia to be asserted by use of a direct pay permit; requiring the Tax Commissioner to design a combined reporting form; requiring taxpayers to use the form specified by the Tax Commissioner; authorizing the Tax Commissioner to promulgate necessary rules; and prohibiting filing incomplete filing of withholding tax returns."
The bill, as amended by the Senate, and further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 497), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3201) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 498), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 3201) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 5, The "Oscar Robert England Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 10, The "Captain Larry F. Lucas Memorial Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 19, Requesting the Division of Highways to rename Heritage Road, specifically Lincoln County Route 13/7, to "Guy Gillenwater Hollow".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 23, Requesting the Division of Highways to name the Yates Avenue bridge, spanning Berkeley Run in Grafton, West Virginia, the "Bearcat Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 25, Requesting that bridge number 46-119-7.93 located in the City of Grafton be named the "Memorial City Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 26, Requesting the Division of Highways to name a portion of U. S. Route 52 the "Vietnam Veterans Highway".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 42, Providing for the renaming of Fairgrounds Road located in Cabell County "Bill Blenko Drive".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 48, Designating the West Virginia Turnpike as the "Okey L. Patteson Highway".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 54, The "PFC Michael J. Slater Memorial Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 57, The "Denver Ray Gandee Sr. Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 62, The "Lt. Charles O. Hardman and Sgt. Gale Franklin Keen Bridge".
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 680, Relating to corporate net income tax and business franchise tax.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendment and again passed
Com. Sub. for H. B. 4209, Authorizing the Department of Administration to promulgate legislative rules.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had receded from its amendment and again passed, to take effect from passage, of
H. B. 4388, Authorizing the West Virginia Supreme Court of Appeals to maintain a domestic violence database.
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 56, Encouraging assistance from private employers in an effort to increase poll workers participants in West Virginia.
Special Calendar

Third Reading

S. B. 239
, Creating Senior Citizen Property Tax Payment Deferment Act; on third reading, coming up in regular order, was reported by the Clerk.
Delegate White asked and obtained unanimous consent that the rule be suspended to permit the offering and consideration of an amendment to the bill on third reading.
On motion of Delegate J. Miller, the bill was amended on page four, section three, line five after the word "more" by inserting the following: "Provided further, That all deferred taxes are not subject to any rate of interest."
On page seven, section seven, line fourteen after the word "deferred", by striking out the words "including accrued interest".
On page seven, section seven, line twenty, after the word "deferred" by striking out a comma and the words "including accrued interest".
On page eight, section seven, line six, after the word "payment", by striking out a comma and the words "including any accrued interest".
On page eight, section eight, line fourteen, after the word "and" by striking out the following: "the interest thereon and".
On page eight, section eight, line nineteen, after the word "article", by striking out a comma and the words "the interest to be charged shall be at the interest rate specified in subsection (a), section three, article one, chapter eleven-a of this code".
And,
On page ten, section ten, line eighteen, after the word "owner", by striking out the words "and interest thereon at the legal rate until paid".
There being no further amendments, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 499), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 239) passed.
The title of the bill was then amended to read as follows:
Com. Sub. for S. B. 239 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new article, designated §11-6H-1, §11-6H-2, §11-6H-3, §11-6H-4, §11-6H-5, §11-6H-6, §11-6H-7, §11-6H-8, §11-6H-9, §11-6H-10 and §11-6H-11; and to amend said code by adding thereto a new section, designated §11-21-24, all relating to the taxation of real property owned by senior citizens; providing definitions; providing deferment for payment of property tax increment; specifying that the senior citizen property tax relief tax credit may be applied in lieu of such deferment; authorizing rules; requiring application for the deferment; providing for deferment renewal and waiver of deferment; providing procedures for the review and approval of application by the assessor; providing an appeals procedure; authorizing creation of a lien on property for which deferment is approved; specifying conditions for liens and lien payment and termination; requiring the Tax Commissioner to prescribe necessary forms and instructions; authorizing the Tax Commissioner to propose legislative rules; establishing criminal penalties; authorizing severability of provisions of the article; creating the Senior Citizen Property Tax Relief Credit Act; providing definitions; providing tax credit against personal income tax for payment of a specified property tax increment under certain circumstances; specifying that the Senior Citizen Property Tax Payment Deferment may be applied in lieu of such credit; requiring application for the tax credit; providing for tax credit renewal; providing procedures for the review and approval of application by the assessor; providing an appeals procedure; requiring the Tax Commissioner to prescribe necessary forms and instructions; and establishing criminal penalties."
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 500), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 239) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Conference Committee Report Availability

At 8:28 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for S. B. 571.
Conference Committee Reports

Delegate M. Poling, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the amendments of the Senate to Com. Sub. for H. B. 3215 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses as follows:
That the House agree to the Senate amendment striking out everything following the enacting clause and inserting their provisions.
And,
That the House agree to the Senate amendment to the title of the bill.
Respectfully submitted,
Mary M. Poling,
Robert H. Plymale,

Brady R. Paxton,
Larry J. Edgell,

Larry A. Williams,
Roman Prezioso,

John Doyle,
Erik Wells,

Lynwood Ireland,
Karen L. Facemyer,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

Conference Committee Report Availability

At 8:38 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 4022.
At 8:57 p.m., the Clerk announced availability in his office of the report of the Committee of Conference on Com. Sub. for H. B. 4402.
Conference Committee Report


On motion of Delegate M. Poling, the report of the Committee of Conference on Com. Sub. for H. B. 3215 was adopted.
The bill, as amended by said report, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 501), and there were--yeas 64, nays 33, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Azinger, Beach, Blair, Border, Cann, Canterbury, Carmichael, Cowles, Duke, Ellem, Evans, Frederick, Hamilton, Hartman, Higgins, Ireland, Lane, Miley, J. Miller, Overington, Poling, D, Porter, Romine, Rowan, Schadler, Schoen, Spencer, Tansill and Walters.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3215) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 502), and there were--yeas 77, nays 20, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Azinger, Beach, Border, Duke, Ellem, Evans, Hamilton, Hartman, Ireland, Lane, J. Miller, Overington, D. Poling, Porter, Romine, Rowan, Schadler, Schoen and Tansill.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 3215) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar

Third Reading

Com. Sub. for S. B. 474, Creating limited sales tax holiday for certain Energy Star appliance purchases; on third reading, coming up in regular order, was read a third time.
Delegate Webster requested to be excused from voting on the passage of Com. Sub. for S. B. 474 under the provisions of House Rule 49, stating that her employer could possibly benefit from the passage of the bill.
The Speaker then excused the Lady from voting on the passage of the bill.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 503), and there were--yeas 96, nays none, excused from voting1, absent and not voting 3, with the excused from voting and absent and not voting being as follows:
Excused from Voting: Webster.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 474) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Ashley asked and obtained unanimous consent that the remarks regarding Com. Sub. for H. B. 3215, Removing the administrative link between Shepherd University and Blue Ridge Community and Technical College be printed in the Appendix to the Journal.
At 9:12 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 10:00 p.m., and reconvened at that time.
Conference Committee Report

Delegate Stalnaker, from the committee of conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4471, Making certain changes to the West Virginia State Police Retirement System,
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses on the amendment of the Senate to H. B. 4471, having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That the House of Delegates agree to the amendment of the Senate striking out all the language following the enacting clause and inserting new language, except on page twenty, section nine, line eighteen, both houses receding from their respective positions and agreeing to the same as follows:
On page twenty, section nine, line eighteen, following the word "lifetime" by inserting a comma and the words "or until the retirant attains the age of fifty-five";
That both houses recede from their positions as to the enacting section of the amendment of the Senate and agree to the same as follows:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new section, designated §15-2-24b; and that §15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6, §15-2A-6a, §15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11, §15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13, §15-2A-14, §15-2A-15, §15-2A-17 and §15-2A-19 of said code be amended and reenacted, all to read as follows:"
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
Com. Sub. for H. B. 4471 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated §15-2-24b; and to amend and reenact §15-2A-2, §15-2A-3, §15-2A-4, §15-2A-5, §15-2A-6, §15-2A-6a, §15-2A-6c, §15-2A-6d, §15-2A-7, §15-2A-8, §15-2A-9, §15-2A-10, §15-2A-11, §15-2A-11a, §15-2A-11b, §15-2A-12, §15-2A-13, §15-2A-14, §15-2A-15, §15-2A-17 and §15-2A-19 of said code, all relating to the West Virginia State Police Retirement Fund; requiring the State Police to collect a fee for certain fingerprinting services and deposit the fees into the retirement system; adding, deleting and modifying definitions; specifying the title of West Virginia State Police Retirement System; clarifying the usage of the terms 'employee', 'member' and 'retirant or retiree' as defined; clarifying the usage of the terms 'fund', 'plan', 'system' or 'retirement system' as defined; clarifying the usage of the term 'base salary' as defined; clarifying the usage of the term 'agency' as defined; authorizing the board to increase or decrease the employee's contribution rate under specified circumstances; reducing the normal retirement age for members; eliminating minimum required eligible direct rollover distributions paid directly to an eligible retirement plan; allowing distributions totaling less than two hundred dollars within the definition of 'eligible rollover distribution'; clarifying the usage of the term 'surviving spouse' as defined; clarifying surviving spouse payments when calculating the pro rata share of annuity adjustments; specifying the time frame that a retirant may receive deferred annuity payments; clarifying the age requirement for a retirant receiving a duty disability annuity; requiring the base salary of a member receiving a duty disability annuity to be annualized until the member has worked twelve months; specifying the title of the West Virginia Insurance Commission; clarifying the time frame for which a duty disability retirant receives a retirement benefit; specifying that disability petitions certify the job description of an employee applying for a disability retirement; specifying the time frame for receipt of awards and benefits to dependents of deceased employees; clarifying that death awards and benefits be calculated for the last full twelve-month employment period; requiring that death awards and benefits be paid to a named beneficiary or to the estate of the deceased member if there is no surviving spouse or dependents; eliminating duplicate language referring to a single receipt of state retirement benefits; and adding provisions specifying the time frame for receipt of beneficiary payments."
Respectfully submitted,

Doug K Stalnaker,
Dan Foster,

Kevin J. Craig,
Brooks McCabe,

Allen V. Evans,
Karen L. Facemyer,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Stalnaker, the report of the Committee of Conference on Com. Sub. for H. B. 4471 was adopted.
The bill, as amended by said report, was then put upon its passage.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 504), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4471) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4307, Relating to bona fide residents wholly or solely owning greyhounds.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page thirteen, section ten, line two hundred eight, after the word "start", by changing the period to a colon and inserting the following proviso: "Provided, That those kennels who are required to race West Virginia Whelped Greyhounds on their active list that finish fifth through eighth shall receive one half point value from the regular purse fund per official start. The West Virginia Greyhound Owners and Breeders Association shall submit a list of any additions or deletions to the numbers of the registries during the first of each month."
On page fourteen, section ten, lines two hundred thirty-one and two hundred thirty-two, by striking out the words "and maintenance".
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4307- "A Bill to amend and reenact §19-23-10 of the Code of West Virginia, 1931, as amended, relating to greyhound racing generally; Greyhound breeding development fund limited to greyhounds wholly or solely owned by bona fide residents of state track facilities; increasing the amount from the Breeder Development Fund that can be used for construction of two training track facilities; increasing the number of possible greyhound training tracks to two; authorizing maintenance costs for training tracks to be paid as fund distributions; not requiring anyone to be a member of an association in order to participate in the Breeder Development Fund; providing for distribution of one half points to West Virginia whelped greyhounds finishing in places fifth through eighth; providing for distribution of one half points to kennels required to race West Virginia whelped greyhounds on their active lists when the dogs finish in fifth, sixth, seventh or eighth place; and requiring up to three races featuring West Virginia bred dogs per race card; and codifying the requirement that the Greyhound Owners and Breeders Association shall submit an updated registry each month."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 505), and there were--yeas 72, nays 25, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Ashley, Blair, Border, Brown, Burdiss, Craig, Duke, Hutchins, Kessler, Kominar, Michael, Miley, C. Miller, Moore, Moye, Overington, Porter, Sobonya, Sumner, Tansill, Tucker, Walters and Yost.
Absent And Not Voting: Hutchins, Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4307) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, to take effect July 1, 2008, a bill of the House of Delegates as follows:
H. B. 4406, Relating to state board standards for the recommended duration of school bus transportation times for students to and from school.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page five, section two, lines eight and nine, by striking out the words "five hundred thousand" and inserting in lieu thereof the words "one million".
On page nine, section two, line seventy-eight, by striking out the word "and".
On page nine, section two, line eighty, after the word "article", by inserting the following: "and

(G) Deposited in the Excess Lottery School Building Debt Services Fund pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code."
On page ten, section two, line one hundred four, by striking out the words "five hundred thousand" and inserting in lieu thereof the words "one million".
And,
By amending the title of the bill to read as follows:
H. B. 4406 - "A Bill to amend the Code of West Virginia, 1931, as amended, by adding thereto a new section, designated section §18-2E-5d; and to amend and reenact §18-9D-2 and §18-9D-16 of said code, all relating generally to the School Building Authority and to state board standards for the recommended duration of school bus transportation times for students to and from school; modifying definitions and qualifications for construction projects and major improvement projects; limiting county board authority to establish new routes for certain students to certain schools unless certain requirements met; providing for state board to permit new routes in excess of limit up to certain limit; requiring state board to provide certain technical assistance; requiring countywide comprehensive facilities plans required by School Building Authority to address providing facility infrastructure that avoids excessive transportation times; requiring guidelines for update of transportation times in approved facilities plans; prohibiting project approval by authority when transportation route times for certain students exceed limits unless state board permission is granted."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 506), and there were--yeas 94, nays 3, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Andes, Carmichael and Porter.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4406) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 507), and there were--yeas 96, nays 1, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Porter.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 4406) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect July 1, 2008, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4434, Establishing a higher education energy and water savings revolving loan fund.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page two, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. HIGHER EDUCATION BUDGETS AND EXPENDITURES.
§18B-5-11. Energy and Water Savings Revolving Loan Program Fund.

(a) There is created in the state treasury a special revolving loan fund known as the 'Energy and Water Savings Revolving Loan Fund'. The fund is administered by the Commission and used to effectuate the purposes of this section. The fund consists of moneys received from the following sources:
(1) All appropriations provided by the Legislature for energy and water savings revolving loans;
(2) Repayment of loans made to state institutions of higher education pursuant to this section;
(3) Any moneys available from external sources; and
(4) All interest and other income earned from investment of moneys in the fund.
(b) The Commission shall utilize moneys in the fund to provide loans to state institutions of higher education under the jurisdiction of the Commission or the Council to finance projects that will achieve significant reductions in campus energy and water consumption and costs.
(c) The Commission shall propose a rule for legislative approval in accordance with section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code to implement the provisions of this section. The rule shall provide at least the following:
(1) Project information required in a loan application;
(2) Criteria for evaluating loan applications;
(3) A method for calculating the terms of loan repayment; and
(4) Other provisions the Commission considers necessary to administer the program in accordance with this section.
(d) Projects shall be considered on a competitive basis. Highest priority is given to projects guaranteeing the greatest reductions in energy and water consumption and costs and the earliest loan repayments.
(e) Any balance, including accrued interest and any other returns, in the Energy and Water Savings Revolving Loan Fund at the end of each fiscal year shall not expire to the General Revenue Fund, but shall remain in the loan fund and be expended for the purposes provided by this section. The Commission may use up to four percent of the total loan amount in a fiscal year for administrative expenses incurred in that fiscal year.
(f) Fund balances may be invested with the state's consolidated investment fund. Any earnings on the investments shall be used solely for the purpose defined in subsection (b) of this section.
(g) The Legislature finds that an emergency exists and, therefore, the Commission shall propose an emergency rule to implement the provisions of this section in accordance with section six, article one of this chapter and article three-a, chapter twenty-nine-a of this code by the first day of October, two thousand eight. The emergency rule may not be implemented without prior approval of the Legislative Oversight Commission on Education Accountability."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendment.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 508), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4434) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 509), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4434) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4438, Relating to air pollution control.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendment was reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"ARTICLE 5. AIR POLLUTION CONTROL.
§22-5-1. Declaration of policy and purpose.

It is hereby declared to be the public policy of this state and the purpose of this article to achieve and maintain such levels of air quality as will protect human health and safety, and to the greatest degree practicable, prevent injury to plant and animal life and property, foster the comfort and convenience of the people, promote the economic and social development of this state and facilitate the enjoyment of the natural attractions of this state.
To these ends it is the purpose of this article to provide for a coordinated statewide program of air pollution prevention, abatement and control; to facilitate cooperation across jurisdictional lines in dealing with problems of air pollution not confined within single jurisdictions; to assure the economic competitiveness of the state by providing for the timely processing of permit applications and other authorizations under this article; and to provide a framework within which all values may be balanced in the public interest.
Further, it is the public policy of this state to fulfill its primary responsibility for assuring air quality pursuant to the 'Federal Clean Air Act', as amended.
§22-5-11. Construction, modification or relocation permits required for stationary sources of air pollutants.

(a) No Unless otherwise specifically provided in this article, no person shall construct, modify or relocate any stationary source of air pollutants without first obtaining a construction, modification or relocation permit as provided in this section article.
(b) The director secretary shall by rule specify the class or categories of stationary sources to which this section applies. Application for permits shall be made upon such form, in such manner, and within such time as the rule prescribes and shall include such information, as in the judgment of the director secretary, will enable him or her to determine whether such source will be so designed as to operate in conformance with the provisions of this article or any rules of the director secretary.
The director shall, within a reasonable time not to exceed twelve months for major sources, as defined by the director and six months for all other sources after the receipt of a complete application, issue such permit unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated thereunder, in which case the director shall issue an order for the prevention of such construction, modification or relocation. For the purposes of this section, a modification is deemed to be any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant discharged by such source above a de minimis level set by the director.
(c) Unless otherwise specifically provided in this article, the secretary shall issue a permit for a major stationary source within a reasonable time not to exceed three hundred sixty-five calendar days, after the secretary determines that the application is complete.
(d) Unless otherwise specifically provided in this article, the secretary shall issue a permit for all other sources including modifications of existing major stationary sources which are not major modifications within a reasonable time not to exceed ninety calendar days, after the date the secretary determines the application is complete. The Secretary may extend this time by thirty calendar days to allow for public comment.
(e) A permit application will be denied if the secretary determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated thereunder.
(f) For purposes of this section, a modification is any physical change in, or change in the method of operation of, a stationary source which increases the amount of any air pollutant discharged by a source above the de minimis level set by the secretary.
(g) With respect to the construction of new nonmajor stationary sources, or modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major stationary sources, or relocations of nonmajor stationary sources, the following requirements apply:
(1) The secretary shall issue an administrative update to a permit issued under this section with respect to any of these sources, unless he or she determines that the proposed administrative update will not be in accordance with this article or rules promulgated hereunder, in which case the secretary shall issue an order denying the administrative update. Any administrative update shall be issued by the secretary within a reasonable time not to exceed sixty calendar days after receipt of a complete application. Administrative updates are minor revisions of existing permits as further described and authorized by rule.
(2) The secretary shall, within a reasonable time not to exceed forty-five calendar days after the date the secretary determines that an application is complete, issue a registration under a general permit applicable to any of these sources, unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated hereunder. General permits are permits authorizing the construction, modification or relocation of a category of sources by the same owner or operator or involving the same or similar
processes or pollutants upon the terms and conditions specified in the general permit for those types of sources.
(3) The secretary shall, within a reasonable time not to exceed forty-five calendar days after receipt of a complete application, issue a temporary permit or a relocation permit, unless he or she determines that the proposed construction, modification or relocation will not be in accordance with this article or rules promulgated hereunder. Temporary permits are permits authorizing the owner or operator to make limited changes for limited periods of time as further described and authorized by rule.
(e) The secretary shall determine whether an application filed under this section is complete within thirty calendar days after receipt of that application at which time the secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.
(f) The secretary, shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty nine-a of this code, to implement the provisions of this section by the first day of August, two thousand eight.
§22-5-11a. Activities authorized in advance of permit issuance.
(a) With respect to the modifications of nonmajor stationary sources, or modifications which are not major modifications to existing major stationary sources, the following activities are authorized in advance of permit issuance. Any authorized activities undertaken by or on behalf of the permit applicant prior to the issuance of a final permitting action by the secretary are undertaken at the permit applicant's own risk and with the knowledge that the application for a permit or permit modification may be denied:
(1) Receiving or storing on-site or off-site any equipment or supplies which make up in part or in whole an emission unit or any support equipment, facilities, building or structure.
(2) A person who holds an active West Virginia air quality permit issued under this article at an existing source, and who has applied to the secretary for permission to alter, expand or modify that source or to allow a new emissions unit at that source, may begin the construction of any such alteration, expansion, modification or new emission unit in advance of permit issuance in accordance with this section. The person may not operate any altered, expanded, modified or new emission unit without first obtaining an air quality permit as required by rules promulgated by the secretary.
(3) The following sources are ineligible for submission of an application for permission to commence construction in advance of permit issuance:
(A) Sources subject to the 'Federal Clean Air Act' subsections 112(g) or 112(j).
(B) Sources seeking federally enforceable permit conditions in order to avoid otherwise applicable standards;
(C) Sources requiring a specific case-by-case emission limitation or standard under 45CSR21 or 45CSR27.
(4) (A) To qualify for the authorization to construct in advance of permit issuance as provided in this section, the permittee shall submit to the secretary an application for permission to commence construction in advance of permit issuance. (B) Such application for permission to commence construction shall include all of the following:
(1) The name and location of the source and the name and address of the permittee;
(2) The permit number of each active permit issued under this article for such source;
(3) The nature of the sources and equipment associated with
such alteration, expansion, modification or new emission unit;
(4) An estimate of the maximum hourly and annual emissions of regulated air pollutants increased as a result of such alteration, expansion, modification or new emission unit;
(5) The air pollution control devices or methods that are to be employed in connection with the alteration, expansion, modification or new emission unit;
(6) A listing of the applicable state and federal air quality regulatory requirements for alteration, expansion, modification or new emission unit, and sufficient information which, in the judgement of the secretary, will demonstrate compliance with any applicable state and federal air quality regulatory requirements;
(7) The anticipated construction or building schedule for alteration, expansion, modification or new emission unit;
(8) A certification signed by the responsible official that the source, equipment and devices that are subject to a request for construction authorization will not be operated until the permittee has obtained a permit under rules promulgated by the secretary;
(9) A certification by the responsible official that any construction undertaken prior to the issuance of a final permit under rules of the secretary is undertaken at the permittee's own risk and with the knowledge that the permittee may be denied a permit or permit modification without regard to the permittee's financial investment or addition to or modification of the source;(10) A certification signed by the responsible official that all of the information contained in the application is complete and accurate to the best of the responsible official's knowledge and ability; and
(11) Upon submission of the application for permission to construct, the applicant shall give notice by publishing a Class I legal advertisement of the applicant's intent to alter or expand the physical arrangement or operation of an existing stationary source and the opportunity to provide written comment to the secretary within thirty calendar days of the publication. Public notice shall be in a newspaper having general circulation in the county or counties where the facility is located. The notice shall contain the information required by rules promulgated by the secretary. Within fifteen days of completion of the public comment period, the secretary shall consider and respond to all written comments. If the secretary finds that concerns raised by the public comment period give rise to issues or concerns that would cause a construction or operational permit not to be issued, the secretary may issue a revocation or stay of the authorization to construct until those issues or concerns are resolved.
(c) The secretary shall determine whether an application for permission to commence construction in advance of permit issuance is complete within fifteen calendar days after receipt of the application at which time the secretary shall notify the applicant in writing as to whether the application is complete or specify any additional information required for the application to be complete.
(d) Within fifteen calendar days after the secretary has made a determination that an application for permission to commence construction in advance of permit issuance is complete, the secretary shall notify the applicant in writing of his or her determination as to whether each of the following conditions has or has not been satisfied:
(1) The applicant is and has been for a period of at least three years in substantial compliance with all other active permits and applicable state and federal air quality regulatory requirements under this article;
(2) The applicant has demonstrated that the alteration, expansion, modification or new emission unit will be in compliance with all applicable state and federal air quality regulatory requirements;
(3) The alteration, expansion, modification or new emission unit will not interfere with attainment or maintenance of an applicable ambient air quality standard, cause or contribute to a violation of an applicable air quality increment or be inconsistent with the intent and purpose of this article;
(4) The facility will be altered or expanded so that it will be used for either the same or a similar use as the use already permitted;
(5) The alteration or expansion will not result in a disproportionate increase in size of the facility already permitted; and
(6) The alteration or expansion will result in the same or substantially similar emissions as the facility already permitted.
If the secretary finds that all of the conditions have been satisfied, the notice issued by the secretary shall state that construction of the alteration, expansion, modification or new emission unit in advance of permit issuance may begin immediately. If the secretary finds that one or more of the conditions has not been met, the notice shall state that the requested construction, alteration, expansion, modification or new emission unit may not begin prior to issuance of a new or modified permit.
(e) If at any time during the construction of such alteration, expansion, modification or new emission unit, the secretary determines that the source is not likely to qualify for a permit or permit modification under applicable rules, the secretary may order that construction cease until the secretary makes a decision on the application for a permit or permit modification. If the secretary orders that construction cease, then construction of the alteration, expansion, modification or new emission unit may resume only if the secretary either makes a subsequent written determination that the circumstances that resulted in such order have been adequately addressed or if the secretary issues a permit or permit modification under the rules that authorize construction to resume.
(f) The secretary shall evaluate an application for a permit or permit modification under the rules and make a decision on the same basis as if the construction of the alteration, expansion, modification or new emission unit in advance of permit issuance had not been authorized pursuant to this section. No evidence regarding any contract entered into, financial investment made, construction undertaken, or economic loss incurred by any person or permittee who proceeds under this section without first obtaining a permit under this article is admissible in any contested case or judicial proceeding involving any permit required under the rules. No evidence as to any determination or order by the secretary pursuant to this section shall be admissible in any contested case or judicial proceeding related to any permit required under this article.
(g) Any permittee who proceeds under this section shall be precluded from bringing any action, suit or proceeding against the state, the officials, agents, and employees of the state or the secretary for any loss resulting from any contract entered into, financial investment made, construction undertaken, or economic loss incurred by the permittee in reliance upon the provisions of this section.
(h) This section does not relieve any person of the obligation to comply with any other requirement of state law, including any requirement to obtain any other permit or approval prior to undertaking any activity associated with preparation of the site or the alteration or expansion of the physical arrangement or method of operation of a source at a facility for which a permit is required under the rules.
(I) This section does not relieve any person from any preconstruction or construction prohibition imposed by any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved requirement under the Title V permitting program, as determined solely by the secretary. This section does not apply to any construction, alteration, or expansion that is subject to requirements for prevention of significant deterioration or federal nonattainment new source review, as determined solely by the secretary. This section does not apply if it is inconsistent with any federal requirement, federal delegation, federally approved requirement in any state implementation plan, or federally approved requirement under the Title V permitting program, as determined solely by the secretary.
(j) A permittee who submits an application to commence construction in advance of permit issuance under this section shall pay to the department a fee of two hundred dollars for each application submitted to cover a portion of the administrative costs of implementing this section.
(k) The secretary, in accordance with chapter twenty-nine-a of this code, shall propose legislative rule that may be necessary to implement the provisions of this section by the first day of August, two thousand eight.
(l) The Secretary is directed to report back to the Joint Committee on Government and Finance by the first day of January, two thousand ten on the impact of the implementation of the expedited permits authorized pursuant to this section. The report shall include, but not be limited to, assessments regarding the number and types of facilities utilizing this section, whether the agency has found this expedited process has assisted these facilities to implement construction and make revisions to their operations efficiently, without adverse impacts on the agency, the permitting process, or state-wide air quality.
§22-5-14. Administrative review of permit actions.
Any person whose interest may be affected, including, but not necessarily limited to, the applicant and any person who participated in the public comment process, by a permit issued, modified or denied by the Secretary, or construction authorization pursuant to section eleven-a of this article, may appeal such action of the Secretary to the air quality board pursuant to article one, chapter twenty-two-b of this code."
On motion of Delegate Webster, the House concurred in the Senate amendment with amendment, as follows:
On page eight, section eleven-a, line seventeen, following the word "publication.", by inserting the following:
"The applicant shall post a visible and accessible sign, at a minimum 2 feet square, at the entrance to the source or proposed site. The sign must be clearly marked indicating that an air quality permit has been applied for and include the West Virginia Division of Air Quality permitting section telephone number and web site for additional information. The applicant must post the sign for the duration of the public notice period."
And,
On page nine, section eleven-a, line ten, following the words "is complete", by inserting the words "unless the secretary for good cause shown, extends the fifteen day time period for up to an additional fifteen calendar days".
The bill, as amended by the Senate, and as further amended by the House, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 510), and there were--yeas 94, nays 2, absent and not voting 4, with the nays and absent and not voting being as follows:
Nays: Fleischauer and Shook.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4438) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 511), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4438) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect from passage, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4524, Relating generally to the ethical standards of public officers, employees and lobbyists.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 512), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4524) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment to
Com. Sub. for S. B. 150, Budget Bill, making appropriations of public money out of the treasury in accordance with section fifty-one, article six of the Constitution.
On motion of Delegate DeLong, the House of Delegates refused to recede from its amendment and requested the Senate to agree to the appointment of a Committee of Conference of six from each house on the disagreeing votes of the two houses.
Whereupon,
The Speaker appointed as conferees on the part of the House of Delegates the following:
Delegates White, Boggs, Perdue, Kominar, M. Poling and Anderson.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment as to
Com. Sub. for S. B. 573, Increasing public school teachers' and service personnel annual salaries.
On motion of Delegate DeLong, the House of Delegates receded from its amendment.
Delegates Anderson, Argento, Duke, Ennis, Palumbo, Perry, Pethtel, Proudfoot, Rowan, Schadler, Shaver, Stephens, Varner, Wells and White requested to be excused from voting on the passage of Com. Sub. for S. B. 573 under the provisions of House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 513), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 573) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 514), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 573) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Wysong requested that the Journal show him as having voted "Nay" on the motion to recede from the amendments of the House of Delegates to Com. Sub. for S. B. 573.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had refused to concur in the amendment of the House of Delegates and requested the House to recede from its amendment as to
S. B. 699, Establishing OxyContin Asset Forfeiture Fund.
On motion of Delegate DeLong, the House of Delegates refused to recede from its amendment.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
At the request of Delegate DeLong, and by unanimous consent, the House of Delegates proceeded to the Seventh Order of Business for the purpose of introducing a resolution.
Resolutions

Delegates Armstead and Lane offered the following resolution, which was read by its title and referred to the Committee on Rules:
H. C. R. 120 - "Requesting the Joint Committee on Government and Finance to study ways to encourage the presence of smoke detectors in residential homes in the state of West Virginia."
Whereas, fire can quickly and easily destroy a family's home and take the lives of those residing there; and
Whereas, by providing an early warning sign of fire, smoke detectors play a vital role in saving property and reducing deaths and injuries resulting from fire; and
Whereas, the presence of a properly-maintained smoke detector in a home may cut the risk of dying in a home fire by half; and
Whereas, according to the National Fire Protection Association, an estimated 890 lives could be saved each year if all homes had functional fire alarms; therefore, be it
Resolved by the Legislature of West Virginia:
That the Joint Committee on Government and Finance is hereby requested to study ways to encourage the presence of smoke detectors in residential homes in the state of West Virginia; and be it
Further Resolved, That the Joint Committee on Government and Finance report to the regular session of the Legislature, 2009, on its findings, conclusions, and recommendations, together with drafts of any legislation necessary to effectuate its recommendations; and be it
Further Resolved, That the expenses necessary to conduct this study, to prepare a report and to draft necessary legislation be paid from legislative appropriations to the Joint Committee on Government and Finance.
At the respective requests of Delegate DeLong, and by unanimous consent, reference of the resolution (H. C. R. 120) to a committee was dispensed with, and it was taken up for immediate consideration and adopted.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Special Calendar

Third Reading

Com. Sub. for S. B. 673, Making supplementary appropriation to Department of Health and Human Resources; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken (Roll No. 515), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (S. B. 673) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 516), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 673) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
S. B. 674, Making supplementary appropriation to Department of Administration and Department of Military Affairs and Public Safety; on third reading, coming up in regular order, was read a third time.
On the passage of the bill, the yeas and nays were taken the passage of the bill, the yeas and nays were taken (Roll No. 517), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 674) passed.
Delegate DeLong moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 518), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (S. B. 674) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Ennis asked and obtained unanimous consent that the remarks of Delegate Wysong regarding his legislative career be printed in the Appendix to the Journal.
Conference Committee Report


Delegate M. Poling, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4022, Relating to compensation and expenses of panel attorneys providing public defender services,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the amendments of the Senate to Com. Sub. for H. B. 4022 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses as follows:.
That both houses recede from their respective positions as to amendments of the Senate striking out every thing following the enacting section and inserting new language, and agreeing to the same as follows:
ARTICLE 21. PUBLIC DEFENDER SERVICES.
§29-21-3b. Indigent Defense Commission.
(a) There is hereby established the Indigent Defense Commission to provide assistance to Public Defender Services with regard to the general policies and procedures of the agency, including, but not limited to, the opening, closing or merging of public defender offices throughout the state and the establishment of performance measures for the qualitative review of indigent defense.
(b) In order to demonstrate a collaborative approach to solving criminal justice problems, the commission shall consist of the Executive Director of Public Defender Services, who shall serve as chair, and the following members appointed by the Governor:
(1) One former or retired circuit judge;
(2) Three lawyers, one from each congressional district, who have significant experience in the defense of criminal cases or have demonstrated a strong commitment to quality representation of indigent defendants;
(3) One current chief public defender; and
(4) One nonlawyer with a demonstrated commitment to providing legal services to the indigent;
(5) One person who is a member of an organization that advocates on behalf of people with mental illness and developmental disabilities; and
(6) One attorney with significant experience in the defense of juvenile delinquency and abuse and neglect cases.
(c) The commission shall meet at the times and places specified by the call of the chair:
Provided, That the commission shall meet no less than four times each year. Members shall serve without compensation but may receive reimbursement of actual and necessary expenses for each day or portion thereof engaged in this discharge of official duties in a manner consistent with the guidelines of the Travel Management Office of the Department of Administration.
(d) Of the initial appointments made to the Commission, two shall be for a term ending one year after the effective date of this section, two for a term ending two years after the effective date of this section, two for a term ending three years after the effective date of this section. Thereafter, terms of office shall be for four years, each term ending on the same day of the same month of the year as did the term which it succeeds. Each member shall hold office from the date of his or her appointment until the end of the term for which he or she was appointed or until his or her successor qualifies for office. When a vacancy occurs as a result of death, resignation or removal in the membership of this Commission, it shall be filled by appointment within thirty days of the vacancy for the unexpired portion of the term in the same manner as original appointments. No member shall serve more than two consecutive full or partial terms and no person may be reappointed to the Commission until at least two years have elapsed after the completion of a second successive term;
(e) The appointed members of the commission serve four-year terms that shall coincide with the term of the Governor.
(f) The commission has the following powers and duties:
(1) To develop standards regarding the qualifications and training for public defenders, assistant public defenders and staff;
(2) To explore opportunities related to the training of appointed panel attorneys;
(3) To evaluate, on an annual basis, the compensation and caseloads of public defenders and appointed panel attorneys;
(4) To develop standards for providing and compensating expert witnesses, investigators and other persons who provide services related to legal representation under this article;
(5) To study, monitor and evaluate existing standards for determining eligibility for legal representation under section sixteen of this article;
(6) To study the feasibility and need of creating additional public defender corporations, the activation of public defender corporations and the formation of multicircuit or regional public defender corporations in accordance with the provisions of section eight of this article;
(7) To study the potential for the dissolution of public defender corporations;
(8) To study, monitor, evaluate and make recommendations regarding the training, experience and background necessary for a public defender or panel attorney to competently represent indigent defendants in capital cases; and
(9) To monitor and make recommendations regarding the following activities of the board of directors of each public defender corporation receiving funding pursuant to this article:
(A) The appointment of the public defender and any assistant public defenders pursuant to subdivision (1), subsection (c), section fifteen of this article;
(B) The fixing of professional and clerical salaries pursuant to subdivision (2), subsection (c), section fifteen of this article; and
(C) The removal of any public defender, assistant public defender or other employee for misfeasance, malfeasance or nonfeasance pursuant to subdivision (3), subsection (c), section fifteen of this article.
(g) On or before the fifteenth day of January, two thousand nine the commission shall report to the Legislature its findings and recommendations on the feasibility and need for the creation of additional public defender corporations; the activation of public defender corporations; the formation of multi-circuit or regional public defender corporations; or the dissolution of public defender corporations in accordance with the provisions of section eight of this article.
§29-21-6. Powers, duties and limitations.
(a) Consistent with the provisions of this article, the agency is authorized to make grants to and contracts with public defender corporations and with individuals, partnerships, firms, corporations and nonprofit organizations for the purpose of providing legal representation under this article and may make such any other grants and contracts as that are necessary to carry out the purposes and provisions of this article.
(b) The agency is authorized to accept, and employ or dispose of in furtherance of the purposes of this article, any money or property, real, personal or mixed, tangible or intangible, received by gift, devise, bequest or otherwise.
(c) The agency shall establish and the executive director or his or her designee shall operate a criminal law research center as provided for in section seven of this article. This center shall undertake directly, or by grant or contract, to serve as a clearinghouse for information; to provide training and technical assistance relating related to the delivery of legal representation; and to engage in research, except that broad general, legal or policy research unrelated to direct representation of eligible clients may not be undertaken.
(d) The agency shall establish and the executive director or his or her designate designee shall operate an accounting and auditing division to require and monitor the compliance with this article by public defender corporations and other persons or entities receiving funding or compensation from the agency. This The accounting and auditing division shall review all plans and proposals for grants and contracts and shall make a recommendation of approval or disapproval to the executive director. The accounting and auditing division shall prepare, or cause to be prepared, reports concerning the evaluation, inspection or monitoring of public defender corporations and other grantees, contractors, persons or entities receiving financial assistance under this article and shall further carry out the agency's responsibilities for records and reports as set forth in section eighteen of this article. The accounting and auditing division shall require each public defender corporation to periodically submit financial statements monthly and to report monthly on the billable and nonbillable time of its professional employees, including time utilized used in administration of the respective offices, so as to compare such the time to similar time expended in nonpublic law offices for like similar activities. The accounting and auditing division shall provide to the executive director assistance in the fiscal administration of all of the agency's divisions. Such This assistance shall include, but not be limited to, budget preparation and statistical analysis.
(e) The agency shall establish and the executive director or a person designated by the executive director his or her designee shall operate an appellate advocacy division for the purpose of prosecuting litigation on behalf of eligible clients in the Supreme Court of Appeals. The executive director or a person designated by the executive director his or her designee shall be the director of the appellate advocacy division. The appellate advocacy division shall represent eligible clients upon appointment by the circuit courts or by the Supreme Court of Appeals. The division may, however, refuse such the appointments due to a conflict of interest or if the executive director has determined the existing caseload cannot be increased without jeopardizing the appellate division's ability to provide effective representation. In order to effectively and efficiently utilize use the resources of the appellate division, the executive director may restrict the provision of appellate representation to certain types of cases. The executive director is empowered to may select and employ staff attorneys to perform the duties prescribed by this subsection. The appellate division shall maintain vouchers and records for of representation of eligible clients for record purposes only.
§29-21-8. Public defender corporations; establishment thereof.
(a) (1) In each judicial circuit of the state, there is hereby created a public defender corporation of the circuit: Provided, That the executive director, with the approval of the Indigent Defense Commission, may authorize the creation, merger or dissolution of a public defender corporation in a judicial circuit where the creation, merger or dissolution of such a public defender corporation would improve the quality of legal representation, assure the prudent and resourceful expenditure of state funds and further the purposes of this article: Provided, however, That prior to the creation, merger or dissolution of a public defender corporation in accordance with this subsection, the commission shall provide a report to the Legislature pursuant subsection (g), section three-b of this article for approval of the creation, merger, or dissolution of any public defender corporation.
(2) The purpose of these public defender corporations is to provide legal representation in the respective circuits in accordance with the provisions of this article. A public defender corporation may employ full-time attorneys and employ part-time attorneys in whatever combination that the public defender corporation deems most cost effective.
(b) If the executive director, with the approval of the Indigent Defense Commission, determines there is a need to activate, merge or dissolve a corporation in a judicial circuit of the state, pursuant to subsection (a) of this section, the Indigent Defense Commission shall first consult with and give substantial consideration to the recommendation of If the judge of a single-judge circuit or the chief judge of a multi-judge circuit or a majority of the active members of the bar in the circuit determine there is a need to activate the corporation, they shall certify that fact in writing to the executive director. The executive director shall allocate funds to those corporations so certifying in the order in which he or she deems most efficient and cost effective.
(c) Public defender corporations may apply in writing to the executive director for permission to merge to form multi-circuit or regional public defender corporations. Applications for mergers shall be subject to the review procedures set forth in section eleven of this article.
§29-21-9. Panel attorneys.
(a) In each circuit of the state, the circuit court shall establish and maintain regional and local panels of private attorneys-at-law who shall be are available to serve as counsel for eligible clients. An attorney-at-law may become a panel attorney and be enrolled on the regional or local panel, or both, to serve as counsel for eligible clients by informing the court. An agreement to accept cases generally or certain types of cases particularly shall may not prevent a panel attorney from declining an appointment in a specific case.
(b) In all cases where an attorney-at-law is required to be appointed for an eligible client, the appointment shall be made by the circuit judge in the following order of preference:
(1)
In circuits where a public defender office is in operation, the judge shall appoint the public defender office unless such an appointment is not appropriate due to a conflict of interest or unless the public defender corporation board of directors or the public defender, with the approval of the board, has notified the court that the existing caseload cannot be increased without jeopardizing the ability of defenders to provide effective representation;
(2) If the public defender office is not available for appointment, the court shall appoint one or more panel attorneys from the local panel;
(3) If there is no local panel attorney available, the judge shall appoint one or more panel attorneys from the regional panel;
(4) If there is no regional panel attorney available, the judge may appoint a public defender office from an adjoining circuit if such public defender office agrees to the appointment;
(5) If the adjoining public defender office does not accept the appointment, the judge may appoint a panel attorney from an adjoining circuit; or
(6) If a panel attorney from an adjoining circuit is unavailable, the judge may appoint a panel attorney from any circuit.
In circuits where no public defender office is in operation, the judge shall first refer to the local panel and then to the regional panel in making appointments, and if an appointment cannot be made from the panel attorneys, the judge may appoint the public defender office of an adjoining circuit if the office agrees to the appointment. In any circuit, when there is no public defender, or assistant public defender, local panel attorney or regional panel attorney available, the judge may appoint one or more qualified private attorneys to provide representation, and such private attorney or attorneys shall be treated as panel attorneys for that specific case.
(c) In any given case, the appointing judge may alter the order in which attorneys are appointed if the case requires particular knowledge or experience on the part of the attorney to be appointed: Provided, That any time a court, in appointing counsel pursuant to the provisions of this section, alters the order of appointment as set forth herein, the order of appointment shall contain the court's reasons for doing so.
§29-21-13. Approval of public defender corporation funding applications; funding; recordkeeping by public defender corporations.

(a) On or before the first day of May of each year, each active public defender corporation shall submit to the executive director and the commission a funding application and a proposed budget for the ensuing fiscal year. The accounting and auditing division shall review all funding applications and prepare recommendations for an operating plan and annual budget for each public defender corporation. The executive director shall review the funding applications and the accounting and auditing recommendations and shall, in consultation with the applicants the board of directors of each public defender corporation, prepare a plan for providing legal services, execute a funding contract for the fiscal year and commit funds for that purpose.
(b) Upon final approval of a funding application by the executive director, the approved budget shall be set forth in an approval notice. The total cost to the agency shall not exceed the amount set forth in the approval notice and the agency shall not be obligated to reimburse the recipient for costs incurred in excess of the amount unless and until a program modification has been approved in accordance with the provisions of this article. At the discretion of the executive director, when caseloads increase or unusual expenses occur, funding contracts may be amended during a fiscal year if necessary to provide cost effective representation.
(c) Funding of public defender corporations or other programs or entities providing legal representation under the provisions of this article shall be by annual grants disbursed in such periodic allotments as the executive director shall deem appropriate.
(d) All recipients of funding under this article shall maintain such records as required by the executive director.
§29-21-13a. Compensation and expenses for panel attorneys.
(a) All panel attorneys shall maintain detailed and accurate records of the time expended and expenses incurred on behalf of eligible clients, and upon completion of each case, exclusive of appeal, shall submit to the appointing court a voucher for services. Claims for fees and expense reimbursements shall be submitted to the appointing court on forms approved by the executive director. The executive director shall establish guidelines for the submission of vouchers and claims for fees and expense reimbursements under this section. Claims submitted more than four years ninety calendar days after the last date of service shall be rejected, unless for good cause, the appointing court authorizes in writing an extension: Provided, That claims where the last date of service occurred prior to the first day of July, two thousand eight, shall be rejected unless submitted prior to the first day of January, two thousand nine.
The appointing court shall review the voucher to determine if the time and expense claims are reasonable, necessary and valid, and shall forward the voucher to the agency with an order approving payment of the claimed amount or of a lesser sum the court considers appropriate.
(b) Notwithstanding any other provision of this section to the contrary, Public Defender Services may pay by direct bill, prior to the completion of the case, litigation expenses incurred by attorneys appointed under this article.
(c) Notwithstanding any other provision of this section to the contrary, a panel attorney may be compensated for services rendered and reimbursed for expenses incurred prior to the completion of the case where: (1) More than six months have expired since the commencement of the panel attorney's representation in the case; and (2) no prior payment of attorney fees has been made to the panel attorney by Public Defender Services during the case. The executive director, in his or her discretion, may authorize periodic payments where ongoing representation extends beyond six months in duration. The amounts of any fees or expenses paid to the panel attorney on an interim basis, when combined with any amounts paid to the panel attorney at the conclusion of the case, shall not exceed the limitations on fees and expenses imposed by this section.
(d) In each case in which a panel attorney provides legal representation under this article, and in each appeal after conviction in circuit court, the panel attorney shall be compensated at the following rates for actual and necessary time expended for services performed and expenses incurred subsequent to the effective date of this article:
(1) For attorney's work performed out of court, compensation shall be at the rate of forty-five dollars per hour. For paralegal's work performed out of court for the attorney, compensation shall be at the rate of the paralegal's regular compensation on an hourly basis or, if salaried, at the hourly rate of compensation which would produce the paralegal's current salary, but in no event shall the compensation exceed twenty dollars per hour. Out-of-court work includes, but is not limited to, travel, interviews of clients or witnesses, preparation of pleadings and prehearing or pretrial research.
(2) For attorney's work performed in court, compensation shall be at the rate of sixty-five dollars per hour. No compensation for paralegal's work performed in court shall be allowed. In- court work includes, but is not limited to, all time spent awaiting hearing or trial if the presence of the attorney is required before a judge, magistrate, special master or other judicial officer.
(3) The maximum amount of compensation for out-of-court and in-court work under this subsection is as follows: For proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, the amount as the court may approve; for all other eligible proceedings, three thousand dollars unless the court, for good cause shown, approves payment of a larger sum.
(e) Actual and necessary expenses incurred in providing legal representation for proceedings of any kind involving felonies for which a penalty of life imprisonment may be imposed, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed in an amount as the court may approve. For all other eligible proceedings, actual and necessary expenses incurred in providing legal representation, including, but not limited to, expenses for travel, transcripts, salaried or contracted investigative services and expert witnesses, shall be reimbursed to a maximum of fifteen hundred one thousand five hundred dollars unless the court, for good cause shown, approves reimbursement of a larger sum.
Expense vouchers shall specifically set forth the nature, amount and purpose of expenses incurred and shall provide receipts, invoices or other documentation required by the executive director and the State Auditor:
(1) (A) Reimbursement of expenses for production of transcripts of proceedings reported by a court reporter is limited to the cost per original page and per copy page as set forth in section four, article seven, chapter fifty-one of this code. Reimbursement of the cost of copies of such transcripts is limited to the cost per copy page as provided for under said section. It is the duty of the executive director of Public Defender Services to maintain computer records of all transcripts, including originals and copies, for which payment has been made.
(B) (i) There shall be no reimbursement of expenses for or production of a transcript of a preliminary hearing before a magistrate or juvenile referee, or of a magistrate court jury trial, which has been reported by a court reporter at the request of the attorney, where the preliminary such hearing or jury trial has also been recorded electronically in accordance with the provisions of section eight, article five, chapter fifty of this code or court rule.
(ii) Reimbursement of the expense of an appearance fee for a court reporter who reports a proceeding other than one described in subparagraph (i) of this paragraph or who reports a proceeding which is not reported by an official court reporter acting in his or her official capacity for the court, is limited to twenty-five dollars. Where a transcript of a proceeding is produced, there shall be no reimbursement for the expense of any appearance fee. Where a transcript is requested by the attorney after an appearance fee has been paid, reimbursement of the expense incurred to obtain the transcript is limited to the cost of producing the transcript, within the prescribed limitations of paragraph (a) of this subdivision, less the amount of the paid appearance fee.
(iii) Reimbursement of travel expenses incurred for travel by a court reporter is subject to the limitations provided by subdivision (2) of this subsection.
(iv) Except for the appearance fees provided in this paragraph, there shall be no reimbursement for hourly court reporters' fees or fees for other time expended by the court reporter, either at the proceeding or traveling to or from the proceeding.
(C) Reimbursement of the cost of transcription of tapes electronically recorded during preliminary hearings or magistrate court jury trials is limited to the rates established by the Supreme Court of Appeals for the reimbursement of transcriptions of electronically recorded hearings and trial one dollar per page.
(2) Reimbursement for any travel expense incurred in an eligible proceeding is limited to the rates for the reimbursement of travel expenses established by rules promulgated by the Governor pursuant to the provisions of section eleven, article eight, chapter twelve of this code and administered by the Secretary of the Department of Administration pursuant to the provisions of section forty-eight, article three, chapter five-a of this code.
(3) Reimbursement for investigative services is limited to a rate of thirty dollars per hour for work performed by an investigator.
(f) For purposes of compensation under this section, an appeal from magistrate court to circuit court, an appeal from a final order of the circuit court or a proceeding seeking an extraordinary remedy made to the Supreme Court of Appeals shall be considered a separate case.
(g) Vouchers submitted under this section shall specifically set forth the nature of the service rendered, the stage of proceeding or type of hearing involved, the date and place the service was rendered and the amount of time expended in each instance. All time claimed on the vouchers shall be itemized to the nearest tenth of an hour. If the charge against the eligible client for which services were rendered is one of several charges involving multiple warrants or indictments, the voucher shall indicate the fact and sufficiently identify the several charges so as to enable the court to avoid a duplication of compensation for services rendered. The executive director shall refuse to requisition payment for any voucher which is not in conformity with the recordkeeping, compensation or other provisions of this article or the voucher guidelines established issued pursuant to subsection (a) of this section and in such circumstance shall return the voucher to the court or to the service provider for further review or correction.
(h) Vouchers submitted under this section after the first day of July, two thousand eight, shall be reimbursed within ninety days of receipt. Reimbursements after ninety days shall bear interest from the ninety-first day at the legal rate in effect for the calendar year in which payment is due.
(i) Vouchers submitted for fees and expenses involving child abuse and neglect cases shall be processed for payment before processing vouchers submitted for all other cases.
"
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
Com. Sub. for H. B. 4022 - "A Bill to repeal §29-21-10, §29-21-11 and §29-21-12 of the Code of West Virginia, 1931, as amended; to amend said code by adding thereto a new section, designated §29-21-3b; and to amend and reenact §29-21-6, §29-21-8, §29-21-9, §29-21-13 and §29-21-13a of said code, all relating to Public Defender Services generally; creating the Indigent Defense Commission; specifying members and their terms; specifying certain powers and duties of the Indigent Defense Commission; requiring submission of report to Legislature; requiring public defender corporations to submit monthly financial statements and reports; providing requirements for the creation, activation, merger or dissolution of public defender corporations; authorizing employment of certain attorneys; requiring consultation with judge; providing for the order of appointment of panel attorneys; establishing requirements for funding applications; requiring corporations to submit proposed budgets; authorizing amended funding contracts; authorizing executive director to establish guidelines for submission of claims and vouchers; establishing certain deadlines for submitting claims; providing for periodic payment of fees to panel attorneys; clarifying in-court work and meaning of separate cases; establishing limitations on reimbursement of certain expenses; requiring vouchers be reimbursed within a certain period; providing for interest accruing on late reimbursements; and giving preference to processing vouchers involving child abuse and neglect cases."
Respectfully submitted,

Mary M. Poling,
Joe M. Minard,

Alex J. Shook,
Mike Green,

John N. Ellem,
John Yoder,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Shook, the report of the Committee of Conference on Com. Sub. for H. B. 4022 was adopted.
The bill, as amended by said report, was then put upon its passage.
Delegates Ashley, Ellem, Lane, Reynolds and Schoen requested to be excused from voting on the passage of Com. Sub. for H. B. 4022 under the provisions of House Rule 49.
The Speaker refused to excuse the Members from voting, stating that they were members of a class of persons possibly to be affected by the passage of the bill and that they demonstrated no direct personal or pecuniary interest therein.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 519), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4022) passed.
Delegate DeLong moved that the bill take effect July 1, 2008.
On this question, the yeas and nays were taken (Roll No. 520), and there were--yeas 97, nays none, absent and not voting 3, with the absent and not voting being as follows:
Absent And Not Voting: Mahan, Marshall and Stemple.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4022) takes effect July 1, 2008.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
At 10:50 p.m., on motion of Delegate DeLong, the House of Delegates recessed until 11:15 p.m., and reconvened at that time.
Delegate Craig asked and obtained unanimous consent that the remarks of Delegate Perdue regarding Medicare and Medicaid be printed in the Appendix to the Journal.
Delegate Ashley asked and obtained unanimous consent that the remarks of Delegate Blair regarding H. C. R.64, Urging cooperation to establish an academic competition among the state's high schools, be printed in the Appendix to the Journal.
Conference Committee Report

Delegate Palumbo, from the Committee of Conference on matters of disagreement between the two houses, as to
Com. Sub. for H. B. 4402, Relating to compulsive gambling,
Submitted the following report, which was received:
Your Committee of Conference on the disagreeing votes of the two houses as to the amendments of the Senate to Com. Sub. for H. B. 4402 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses as follows:
That the Senate recedes from its amendments to the bill.
Respectfully submitted,
Corey L. Palumbo,
Jeffrey V. Kessler,

Tim Miley,
Michael A. Olivaris,

Bill Hamilton,
Andy McKenzie,

Conferees on the part
Conferees on the part

of the House of Delegates.
of the Senate.

On motion of Delegate Palumbo, the report of the Committee of Conference was adopted.
The bill, as amended by said report, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 521), and there were--yeas 93, nays none, absent and not voting 7, with the absent and not voting being as follows:
Absent And Not Voting: Craig, Long, Mahan, Marshall, Reynolds, Spencer and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4402) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Delegate Long announced that he was absent on today when the votes were taken on Roll No. 521, and that had he been present, he would have voted "Yea" thereon.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced the adoption of the report of the Committee of Conference on and the passage, as amended by said report, of
S. B. 571, Relating to certain firefighters' workers' compensation benefits.
Conference Committee Report

Delegate Fleischauer, from the committee of conference on matters of disagreement between the two houses, as to
Com. Sub. for S. B. 571, Relating to certain firefighters' workers' compensation benefits,
Submitted the following report, which was received:
Your committee of conference on the disagreeing votes of the two houses as to the amendment of the House to Engrossed Com. Sub. for S. B. 571 having met, after full and free conference, have agreed to recommend and do recommend to their respective houses, as follows:
That both houses recede from their respective positions as to the amendment of the House of Delegates on pages seven and eight, section one, subsection (h), and that the Senate and House of Delegates agree to an amendment as follows:
On page seven, section one, line fifteen, after the "(h)" by inserting the number "(1)".
On page seven, section one, line sixteen, after the word "professional" by striking out the words "or volunteers".
On page seven, section one, line twenty-one, after the words "professional firefighter" by striking out the words "or as a volunteer firefighter".
On page eight, section one, line nine, after the word "professional" by striking out the words "and volunteer".
On page eight, section one, following line five by adding an new subdivision two to read as follows:
(2) The Insurance Commissioner shall study the effects of the rebuttable presumptions created in this subsection on the premiums charged for workers' compensation for professional municipal firefighters; the probable effects of extending these presumptions to volunteer firefighters, and the overall impact of the risk management programs, wage replacement, premium calculation, the number of hours worked per volunteer, treatment of non-active or "social" members of a volunteer crew, and the feasibility of combining various volunteer departments under a single policy on the availability and cost of providing workers compensation coverage to volunteer firefighters. The Insurance Commissioner shall file the report with the Joint Committee on Government and Finance no later than the first day of December, two thousand eight.
And,
That both houses recede from their positions as to the title of the bill and agree to the same as follows:
Com. Sub. for S. B. 571 - "A Bill to amend and reenact §23-4-1 of the Code of West Virginia, 1931, as amended, relating to creating a rebuttable presumption that cardiovascular injury, disease or death or pulmonary disease or death of a professional firefighter is an occupational injury if certain criteria are met; providing that sufficient notice of occupational injury, disease or death has been provided under such circumstances; establishing presumption that death or injury was not self inflicted; and requiring the Insurance Commissioner conduct a study and report back to the Joint Committee on Government and Finance."
Respectfully submitted,
Evan H. Jenkins,
Barbara E. Fleischauer,

Joseph M. Minard,
Nancy Peoples Guthrie,

Andy McKenzie,
John N. Ellem,

Conferees on the part
Conferees on the part

of the Senate.
of the House of Delegates.

Delegate Fleischauer moved that the report of the committee of conference be adopted .

On this motion, the yeas and nays were demanded, which demand was sustained.
The yeas and nays having been ordered, they were taken (Roll No. 522), and there were--yeas 53, nays 45, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Azinger, Blair, Border, Browning, Campbell, Cann, Canterbury, Carmichael, Cowles, Crosier, Doyle, Ellem, Ennis, Evans, Frederick, Hamilton, Hartman, Hutchins, Ireland, Kominar, Lane, Long, Michael, J. Miller, Overington, Perry, Pethtel, Pino, Porter, Romine, Schoen, Shaver, Staggers, Stalnaker, Sumner, Tabb, Tansill, Varner, Walters, Williams and Wysong.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the report of the Committee of Conference was adopted.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 523), and there were--yeas 54, nays 43, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Azinger, Blair, Border, Browning, Burdiss, Campbell, Cann, Canterbury, Carmichael, Cowles, Crosier, Doyle, Ellem, Ennis, Evans, Frederick, Hamilton, Hartman, Ireland, Kominar, Lane, Michael, J. Miller, Overington, Perry, Pethtel, Pino, Porter, Romine, Schadler, Schoen, Shaver, Staggers, Stalnaker, Tabb, Tansill, Varner, Walters, Williams and Wysong.
Absent And Not Voting: Long, Mahan, Marshall and Stemple.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for S. B. 571) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Wysong asked and obtained unanimous consent that the remarks of Delegate Staggers regarding Com. Sub. for S. B. 571 be printed in the Appendix to the Journal.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4476, Public-Private Transportation Facilities Act.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting clause and inserting in lieu thereof the following:
"That the Code of West Virginia, 1931, as amended, be amended by adding thereto a new article, designated §17-27-1, §17-27-2, §17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8, §17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14, §17-27-15, §17-27-16, §17-27-17 and §17-27-18, all to read as follows:
ARTICLE 27. PUBLIC-PRIVATE TRANSPORTATION FACILITIES ACT.
§17-27-1. Legislative findings and purposes.

The Legislature finds and declares:
(1) That there is a public need for timely acquisition or construction of and improvements to transportation facilities within the state that are compatible with state and local transportation plans;
(2) That public need may not be wholly satisfied by existing ways in which transportation facilities are acquired, constructed or improved;
(3) That authorizing private entities to acquire, construct or improve one or more transportation facilities may result in the availability of transportation facilities to the public in a more timely or less costly manner, thereby serving the public health, safety, convenience and welfare and the enhancement of the residential, agricultural, recreational, economic, commercial and industrial opportunities;
(4) That providing a mechanism for the solicitation, receipt and consideration of proposals submitted by private entities for the purposes described in this section serves the public purpose of this article to the extent that the action facilitates the timely acquisition or construction of or improvement to a qualifying transportation facility or the continued operation of a qualifying transportation facility; and
(5) That providing for the expansion and acceleration of transportation financing using innovative financing mechanisms, including, but not limited to, design-build contracting and financing arrangements, will add to the convenience of the public and allow public and private entities to have the greatest possible flexibility in contracting with each other for the provision of the public services which are the subject of this article.
§17-27-2. Definitions.
As used in this article, the following words and terms have the following meanings:
(1) 'Comprehensive agreement' means the comprehensive agreement by and between a developer and the division required by section nine of this article.
(2) 'Department' means the Department of Transportation.
(3) 'Developer' means the private entity that is responsible for the acquisition, construction or improvement of a qualifying transportation facility.
(4) 'Division' means the Division of Highways.
(5) 'Material default' means any default by the developer in the performance of its duties under subsection (f), section eight of this article that jeopardizes adequate service to the public from a qualifying transportation facility and remains unremedied after the division has provided notice to the developer and a reasonable cure period has elapsed.
(6) 'Private entity' means any natural person, corporation, limited liability company, partnership, joint venture or other private business entity.
(7) 'Public entity' means the state of West Virginia or any political subdivision thereof.
(8) 'Qualifying transportation facility' means one or more transportation facilities acquired, constructed or improved by a private entity pursuant to this article.
(9) 'Revenues' mean the user fees or service payments generated by a qualifying transportation facility.
(10) 'Service contract' means a contract entered into between a public entity and a developer pursuant to section six of this article.
(11) 'Service payments' mean payments to the developer of a qualifying transportation facility pursuant to a service contract.
(12) 'State' means the state of West Virginia.
(13) 'Transportation facility' means any public inland waterway port facility, road, bridge, tunnel, overpass or existing airport used for the transportation of persons or goods, and the structures, equipment, facilities or improvements necessary or incident thereto.
(14) 'User fees' mean the rates, tolls, fees or other charges imposed by the developer of a qualifying transportation facility for use of all or a portion of the qualifying transportation facility pursuant to the comprehensive agreement.
§17-27-3. Prerequisites for development.
Any private entity seeking authorization under this article to acquire, construct or improve a transportation facility shall first submit a conceptual proposal as set forth in section five of this article: Provided, That notwithstanding any provision of this code to the contrary, the division has no duty to accept, consider or review a conceptual proposal that is not solicited by the division. The private entity may initiate the approval process pursuant to subsections (a) and (b) of said section or the division may alternatively request proposals pursuant to subsection (c) of said section.
§17-27-4. Powers and duties of the division and other agencies that are part of the department.
In addition to the powers and duties set forth elsewhere in this code, the division and any other agency that is part of the department may:
(1) Undertake one level of review for each proposal submitted by a private entity in accordance with this article. The review shall consist of the review by the division of the conceptual proposal: Provided, That expenses of the division incurred for review of proposal shall be paid by the private entity submitting the proposal. The division shall take into account at all times the needs and funding capabilities of the state as a whole in terms of transportation;
(2) Enter into agreements, contracts or other transactions with any agency that is part of the department, any federal, state, county, municipal agency or private entity;
(3) Act on behalf of the state and represent the state in the planning, financing, development and construction of any transportation facility for which solicited proposals have been received in accordance with the provisions of this article, with the concurrence of the affected public entity. Other public entities in this state shall cooperate to the fullest extent with what the division considers appropriate to effectuate the duties of the division;
(4) Exempt from disclosure any sensitive business, commercial or financial information that is not customarily provided to business competitors that is submitted to the division for final review and approval;
(5) Exempt from disclosure any documents, communications or information described in this section including, but not limited to, the project's design, management, financing and other details in accordance with the provisions of article one, chapter twenty-nine-b of this code; and
(6) Do any and all things necessary to carry out and accomplish the purposes of this article.
§17-27-5. Submission and review of conceptual proposals; approval by the Commissioner of Highways.

(a) A private entity may submit in writing a solicited conceptual proposal for a transportation facility to the division for consideration. The conceptual proposal shall include the following:
(1) A statement of the private entity's qualifications and experience;
(2) A description of the proposed transportation facility;
(3) A description of the financing for the transportation facility; and
(4) A statement setting forth the degree of public support for the proposed transportation facility, including a statement of the benefits of the proposed transportation facility to the public and its compatibility with existing transportation facilities.
(b) Following review by the division, the division shall submit to the Commissioner of Highways the conceptual proposals and priority ranking for review for final selection.
(c) The conceptual proposal shall be accompanied by the following material and information unless waived by the division with respect to the transportation facility or facilities that the private entity proposes to develop as a qualifying transportation facility:
(1) A topographic map (1:2,000 or other appropriate scale) indicating the location of the transportation facility or facilities;
(2) A description of the transportation facility or facilities, including the conceptual design of the facility or facilities and all proposed interconnections with other transportation facilities;
(3) The projected total life-cycle cost of the transportation facility or facilities and the proposed date for acquisition of or the beginning of construction of, or improvements to, the transportation facility or facilities;
(4) A statement setting forth the method by which the developer proposes to secure all property interests required for the transportation facility or facilities: Provided, That with the approval of the division, the private entity may request that the comprehensive agreement assign the division with responsibility for securing all property interests, including public utility facilities, with all costs, including costs of acquiring the property, to be reimbursed to the division by the private entity. The statement shall include the following information regarding the property interests or rights, including, but not limited to, rights to extract mineable minerals:
(A) The names and addresses, if known, of the current owners of the property needed for the transportation facility or facilities;
(B) The nature of the property interests to be acquired;
(C) Any property that the division may expect to condemn; and
(D) The extent to which the property has been or will be subjected to the extraction of mineable minerals.
(5) Information relating to the current transportation plans, if any, of each affected local jurisdiction;
(6) A list of all permits and approvals required for acquisition or construction of or improvements to the transportation facility or facilities from local, state or federal agencies and a projected schedule for obtaining the permits and approvals: Provided, That the acquisition, construction, improvement or operation of a qualifying transportation facility that includes the extraction of mineable minerals is required to obtain all necessary permits or approvals from all applicable authorities in the same manner as if it were not a qualifying transportation facility under this article;
(7) A list of public utility facilities, if any, that will be crossed or affected by or as the result of the construction or improvement of the public port transportation facility or facilities and a statement of the plans of the developer to accommodate the crossings or relocations;
(8) A statement setting forth the developer's general plans for financing and operating the transportation facility or facilities;
(9) The names and addresses of the persons who may be contacted for further information concerning the request;
(10) Information about the developer, including, but not limited to, an organizational chart of the developer, capitalization of the developer, experience in the operation of transportation facilities and references and certificates of good standing from the Tax Commissioner, Insurance Commissioner and the Division of Unemployment Compensation evidencing that the developer is in good standing with state tax, workers' compensation and unemployment compensation laws, respectively; and
(11) Any additional material and information requested by the Commissioner of Highways.
(d) The division, with approval of the Commissioner of Highways, may solicit proposals from private entities for the acquisition, construction or improvement of transportation facilities in a form and with the content determined by the division.
(e) The division may solicit any proposal for the acquisition, construction or improvement of the transportation facility or facilities as a qualifying transportation facility if it is determined that it serves the public purpose of this article. The division may determine that the acquisition, construction or improvement of the transportation facility or facilities as a qualifying transportation facility serves a public purpose if:
(1) There is a public need for the transportation facility of the type the private entity proposes to operate as a qualifying transportation facility;
(2) The transportation facility and the proposed interconnections with existing transportation facilities and the developer's plans for development of the qualifying transportation facility are reasonable and compatible with the state transportation plan and with the local comprehensive plan or plans;
(3) The estimated cost of the transportation facility or facilities is reasonable in relation to similar facilities;
(4) The acquisition, construction, improvement or the financing of the transportation facilities does not involve any moneys from the State Road Fund unless those moneys from the State Road Fund serve as a required match for federal funds specifically earmarked in a federal authorization or appropriation bill for a transportation facility to be acquired, constructed or equipped pursuant to this article: Provided, That the dedication of State Road Fund moneys in any fiscal year as state required match for the federal earmark does not exceed four percent of the immediate preceding three fiscal years average of division's construction contracts awarded under the competitive bid process: Provided, however, That the moneys from the General Revenue Fund may also be used if so designated and approved by the Legislature.
(5) The use of federal funds in connection with the financing of a qualifying transportation facility has been determined by the division to be compatible with the state transportation plan and with the local comprehensive plan or plans; and
(6) The private entity's plans will result in the timely acquisition or construction of or improvements to the transportation facility for their more efficient operation and that the private entity's plans will result in a more timely and economical delivery of the transportation facility than otherwise available under existing delivery systems.
(f) Notwithstanding any provision of this article to the contrary, the recommendation of the division to the Commissioner of Highways is subject to:
(1) The private entity's entering into a comprehensive agreement with the division; and
(2) With respect to transportation facilities, the requirement that public information dissemination with regard to any proposal under consideration comply with the division's policy on the public involvement process, as revised.
(g) In connection with its approval of the development of the transportation facility as a qualifying transportation facility, the division shall establish a date for the acquisition of or the beginning of construction of or improvements to the qualifying transportation facility. The division may extend that date.
(h) Selection by the Commissioner of Highways.
(1) Upon presentations of proposals received by the division, the commissioner shall make his or her decision for the project.
(2) The commissioner shall notify the division and the public of the final selection for the project.
§17-27-6. Service contracts.
In addition to any authority otherwise conferred by law, any public entity may contract for services to be provided for a qualifying transportation facility in exchange for service payments and other consideration as the division determines appropriate.
§17-27-7. Dedication of public property.
Any public entity may dedicate any property interest that it has for public use as a qualified transportation facility if it finds it will serve the public purpose of this article. In connection with the dedication, a public entity may convey any property interest that it has to the developer, by contract, for any consideration determined by the public entity. This consideration may include, without limitation, the agreement of the developer to develop the qualifying transportation facility. No real property may be dedicated by a public entity pursuant to this article unless all other public notice and comment requirements are met.
§17-27-8. Powers and duties of the developer.
(a) The developer has all power allowed by law generally to a private entity having the same form of organization as the developer and may acquire, construct or improve the qualifying transportation facility and impose user fees in connection with the use of the facility.
(b) The developer may own, lease or acquire any other right to facilitate the development of the qualifying transportation facility.
(c) Any financing of the qualifying transportation facility may be in the amounts and upon terms and conditions determined by the developer. The developer may issue debt, equity or other securities or obligations, enter into sale and leaseback transactions and secure any financing with a pledge of, security interest in, or lien on, any or all of its property, including all of its property interests in the qualifying transportation facility.
(d) Subject to applicable permit requirements, the developer may cross any canal or navigable watercourse as long as the crossing does not unreasonably interfere with then current navigation and use of the waterway.
(e) In developing the qualifying transportation facility, the developer may:
(1) Make classifications according to reasonable categories for assessment of user fees; and
(2) With the consent of the division, make and enforce reasonable rules to the same extent that the division may make and enforce rules with respect to a similar transportation facility. The developer may, by agreement with appropriate law-enforcement agencies, arrange for video enforcement in connection with its toll collection activities.
(f) The developer shall:
(1) Acquire, construct or improve the qualifying transportation facility in a manner that meets the engineering standards of:
(A) The authority for facilities operated and maintained by the division, in accordance with the provisions of the comprehensive agreement; and
(B) The division, in accordance with the provisions of the comprehensive agreement;
(2) Keep the qualifying transportation facility open for use by the members of the public at all times after its initial opening upon payment of the applicable user fees or service payments: Provided, That the qualifying transportation facility may be temporarily closed because of emergencies or, with the consent of the division, to protect the safety of the public or for reasonable construction or maintenance procedures;
(3) Contract for the performance of all maintenance and operation of the transportation facility through the division, using its maintenance and operations practices, until the date of termination of the developer's duties as defined in the comprehensive agreement;
(4) Cooperate with the division in establishing any interconnection with the qualifying transportation facility requested by the division;
(5) Remain in compliance with state tax, workers' compensation and unemployment compensation laws; and
(6) Comply with the provisions of the comprehensive agreement and any service contract.
§17-27-9. Comprehensive agreement.
(a) Prior to acquiring, constructing or improving the qualifying transportation facility, the developer shall enter into a comprehensive agreement with the division. The comprehensive agreement shall provide for:
(1) Delivery of performance or payment bonds in connection with the construction of or improvements to the qualifying transportation facility, in the forms and amounts satisfactory to the division;
(2) Review and approval of the final plans and specifications for the qualifying transportation facility by the division;
(3) Inspection of the construction of or improvements to the qualifying transportation facility to ensure that they conform to the engineering standards acceptable to the division;
(4) Maintenance of a policy or policies of public liability insurance or self-insurance, in a form and amount satisfactory to the division and reasonably sufficient to insure coverage of tort liability to the public and employees and to enable the continued operation of the qualifying transportation facility: Provided, That in no event may the insurance impose any pecuniary liability on the state, its agencies or any political subdivision of the state. Copies of the policies shall be filed with the division accompanied by proofs of coverage;
(5) Monitoring of the maintenance and operating practices of the developer by the division and the taking of any actions the division finds appropriate to ensure that the qualifying transportation facility is properly maintained and operated;
(6) Itemization and reimbursement to be paid to the division for the review and any services provided by the division;
(7) Filing of appropriate financial statements on a periodic basis;
(8) A reasonable maximum rate of return on investment for the developer;
(9) The date of termination of the developer's duties under this article and dedication to the division; and
(10) That a transportation facility shall accommodate all public utilities on a reasonable, nondiscriminatory and completely neutral basis and in compliance with the provisions of section seventeen-b, article four, chapter seventeen of this code.
(b) The comprehensive agreement may require user fees established by agreement of the parties. Any user fees shall be set at a level that, taking into account any service payments, allows the developer the rate of return on its investment specified in the comprehensive agreement: Provided, That the schedule and amount of the initial user fees to be imposed and any increase of the user fees must be approved by the Commissioner of the Division of Highways. A copy of any service contract shall be filed with the division. A schedule of the current user fees shall be made available by the developer to any member of the public on request. In negotiating user fees under this section, the parties shall establish fees that are the same for persons using the facility under like conditions and that will not unreasonably discourage use of the qualifying transportation facility. The execution of the comprehensive agreement or any amendment to the comprehensive agreement constitutes conclusive evidence that the user fees provided in the comprehensive agreement comply with this article. User fees established in the comprehensive agreement as a source of revenues may be in addition to, or in lieu of, service payments.
(c) In the comprehensive agreement, the division may agree to accept grants or loans from the developer, from time to time, from amounts received from the state or federal government or any agency or instrumentality of the state or federal government.
(d) The comprehensive agreement shall incorporate the duties of the developer under this article and may contain any other terms and conditions that the division determines serve the public purpose of this chapter. Without limitation, the comprehensive agreement may contain provisions under which the division agrees to provide notice of default and cure rights for the benefit of the developer and the persons specified in the comprehensive agreement as providing financing for the qualifying transportation facility. The comprehensive agreement may contain any other lawful terms and conditions to which the developer and the division mutually agree, including, without limitation, provisions regarding unavoidable delays or provisions providing for a loan of public funds to the developer to acquire, construct or improve one or more qualifying transportation facilities.
(e) The comprehensive agreement shall require the deposit of any earnings in excess of the maximum rate of return as negotiated in the comprehensive agreement in the Economic Development Project Bridge Loan Fund established pursuant to section eighteen-a, article twenty-two, chapter twenty-nine of this code.
(f) Notwithstanding any provision of this article to the contrary, the division may not enter into any comprehensive agreements with a developer after the thirtieth day of June, two thousand thirteen.
(g) The Division shall provide the Joint Committee on Government and Finance with a copy of any proposal selected from a solicitation for their possible comment. The Division shall wait thirty days to allow consideration of any comments provided by the Joint Committee on Government and Finance.
§17-27-10. Federal, state and local assistance.
The division may take any action to obtain federal, state or local assistance for a qualifying transportation facility that serves the public purpose of this article and may enter into any contracts required to receive federal assistance. The division may determine that it serves the public purpose of this article for all or any portion of the costs of a qualifying transportation facility to be paid, directly or indirectly, from the proceeds of a grant or loan made by the local, state or federal government or any agency or instrumentality thereof.
§17-27-11. Material default; remedies.
(a) Except upon written agreement of the developer and any other parties identified in the comprehensive agreement, the division may exercise, at its discretion, any or all of the following remedies provided in this section or elsewhere in this article to remedy any material default that has occurred or may continue to occur.
(1) To elect to take over the transportation facility or facilities and in that case it shall succeed to all of the rights, title and interest in the transportation facility or facilities, subject to any liens on revenues previously granted by the developer to any person providing financing for the facility or facilities and the provisions of subsection (c) of this section;
(2) To exercise the power of condemnation to acquire the qualifying transportation facility or facilities. Any person who has provided financing for the qualifying transportation facility and the developer, to the extent of its capital investment, may participate in the condemnation proceedings with the standing of a property owner;
(3) To terminate the comprehensive agreement and exercise any other rights and remedies that may be available to it at law or in equity, subject only to the express limitations of the terms of the comprehensive agreement; and
(4) To make or cause to be made any appropriate claims under the performance or payment bonds required by this article.
(b) In the event the division elects to take over a qualifying transportation facility pursuant to subdivision (1), subsection (a) of this section, the division may acquire, construct or improve the transportation facility, impose user fees for the use of the transportation facility and comply with any service contracts as if it were the developer. Any revenues that are subject to a lien shall be collected for the benefit of, and paid to, secured parties, as their interests may appear, to the extent necessary to satisfy the developer's obligations to secured parties, including the maintenance of reserves and the liens shall be correspondingly reduced and, when paid off, released. Remaining revenues, if any, after all payments to, or for the benefit of, secured parties shall be paid to the developer, subject to the negotiated maximum rate of return. The right to receive the payment, if any, shall be considered just compensation for the transportation facility or facilities. The full faith and credit of the division may not be pledged to secure any financing of the developer by the election to take over the qualifying transportation facility. Assumption of development of the qualifying transportation facility does not obligate the division to pay any obligation of the developer from sources other than revenues.
§17-27-12. Governmental entities prohibited from pledging full faith and credit.
The full faith and credit of the state, or any county, municipality or political subdivision of the state may not be pledged to secure any financing of the developer in connection with the acquisition, construction or equipping of a qualifying transportation facility.
§17-27-13. Condemnation.
(a) At the request of the developer, the division may exercise the power of condemnation that it has under law for the purpose of acquiring any lands or estates or interests in any lands or estates to the extent that the division finds that the action serves the public purpose of this article: Provided, That the power of condemnation may not be exercised if the extraction of mineable minerals is outside the defined one thousand foot corridor of the project or work which is the subject of a solicited conceptual proposal, comprehensive agreement or service contract submitted or entered into under the provisions of this article. Any amounts to be paid in any condemnation proceeding shall be paid by the developer.
(b) Until the division has provided written certification as to the existence of a material default under subsection (a), section eleven of this article, the power of condemnation may not be exercised against a qualifying transportation facility.
§17-27-14. Utility crossings.
The developer and each county, municipality, public service district, public utility, railroad and cable television provider whose facilities are to be crossed or affected shall cooperate fully with the other in planning and arranging the manner of the crossing or relocation of the facilities. Any entity possessing the power of condemnation is expressly granted the powers in connection with the moving or relocation of facilities to be crossed by the qualifying transportation facility or that must be relocated to the extent that the moving or relocation is made necessary or desirable by construction of or improvements to the qualifying transportation facility, which includes construction of or improvements to temporary facilities for the purpose of providing service during the period of construction or improvement. Any amount to be paid for the crossing, construction, moving or relocating of facilities shall be paid by the developer.
§17-27-15. Dedication of assets.
The division shall terminate the developer's authority and duties under this article on the date set forth in the comprehensive agreement. Upon termination, the division and duties of the developer under this article cease and the qualifying transportation facility shall be dedicated to the division for public use.
§17-27-16. Qualifying a transportation facility as a public improvement.
All qualifying transportation facilities authorized under this article are public improvements and are subject to article five-a, chapter twenty-one of this code. Article twenty-two, chapter five of this code applies to all qualifying transportation facilities authorized under this article. All construction, reconstruction, repair or improvement of qualifying transportation facilities authorized under this article shall be awarded by competitive bidding. Competitive bids shall be solicited by the division for each construction contract in excess of twenty-five thousand dollars in total cost. Construction costs should be of sufficient size that the performance and payment bonds are in the ten million to thirty million dollar range, where possible. Competitive bids shall be solicited by the division through publication of a Class II legal advertisement, in compliance with the provisions of article three, chapter fifty-nine of this code, and the publication area is the county or municipality in which the transportation facility is to be located. The advertisement shall also be published as a Class II advertisement in a newspaper of general circulation published in the city of Charleston. The advertisement shall solicit sealed proposals for the construction of the transportation facility, stating the time and place for the opening of bids. All bids shall be publicly opened and read aloud. Construction contracts shall be awarded to the lowest qualified responsible bidder, who shall furnish a sufficient performance or payment bond: Provided, That both the division and the private entity have the right to reject all bids and solicit new bids for the construction contract. The provisions of article one-c, chapter twenty-one of this code apply to the construction of all qualifying transportation facilities approved under this article.
§17-27-17. Exemptions from taxation.
(a) The exercise of the powers granted in this article will be in all respects for the benefit of the people of this state, for the improvement of their health, safety, convenience and welfare and for the enhancement of their residential, agricultural, recreational, economic, commercial and industrial opportunities and is a public purpose. As the construction, acquisition, improvement, operation and maintenance of qualifying transportation facilities will constitute the performance of essential governmental functions, a developer is not required to pay any taxes or assessments upon any qualifying transportation facility or any property acquired or used by the developer under the provisions of this article or upon the income therefrom, other than taxes collected from the consumer pursuant to article fifteen, chapter eleven of this code.
(b) Nothing in this section shall be construed to exempt a developer from the imposition of a business and occupation tax or privilege tax by a municipality in accordance with the provisions of section five, article thirteen, chapter eight of this code.
(c) Nothing in article fourteen-a, chapter eleven of this code, which establishes a motor carrier road tax, shall apply to any motor carrier operated or caused to be operated on any qualified transportation facility.
§17-27-18. Construction.
The provisions of this article are remedial and shall be liberally construed and applied so as to promote the purposes set out in section one of this article."
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4476 - "A Bill to amend §17-4-47, §17-4-48 and §17-4-49 of the Code of West Virginia, 1931, as amended, and to further amend said code by adding thereto a new article, designated §17-27-1, §17-27-2, §17-27-3, §17-27-4, §17-27-5, §17-27-6, §17-27-7, §17-27-8, §17-27-9, §17-27-10, §17-27-11, §17-27-12, §17-27-13, §17-27-14, §17-27-15, §17-27-16, §17-27-17 and §17-27-18, all relating to establishment of the Public-Private Transportation Facilities Act; requiring owners of real property developed or to be developed to provide a bond as a condition of the commissioner granting access to a state highway; authorizing the Commissioner of Highways to propose for promulgation legislative rules specifying standards for the location, design and construction of facilities that maximize safety and convenience; removing language from the Code which states that when the Commissioner directs reasonable changes in an existing point of access, the work will be done at state expense; setting forth legislative findings and purposes; defining terms; providing prerequisites for acquiring, constructing or improving of a transportation facility; creating public-private transportation oversight within the Division of Highways; creating the powers and duties of the division; providing for the submission of proposals and approval by the division; providing for service contracts; providing for the dedication of public property; setting forth the powers and duties of a developer; requiring a comprehensive agreement; providing for federal, state and local assistance; addressing the issues of material default and remedies; prohibiting governmental entities from pledging full faith and credit; providing for the exercise of condemnation; addressing utility crossings and relocations; addressing dedication of assets; qualifying transportation facilities as public improvements; providing for an exemption of qualifying transportation facilities from taxation; imposition of a business and occupation tax or privilege tax by a municipality; providing that motor carrier road tax shall not apply to any motor carrier operated on a qualified transportation facility; and addressing liberal construction and application of article."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 524), and there were--yeas 73, nays 24, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Armstead, Blair, Border, Cann, Cowles, Doyle, Duke, Ireland, Kessler, Lane, Michael, C. Miller, J. Miller, Overington, Porter, Romine, Schadler, Shaver, Sobonya, Sumner, Tabb, Walters and Wysong.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4476) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, with amendments, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 4023, Provide for the denial or suspension of a driver's license for any student who withdraws from school or fails to receive passing grades.
On motion of Delegate DeLong, the bill was taken up for immediate consideration.
The following Senate amendments were reported by the Clerk:
On page one, by striking out everything after the enacting section and inserting in lieu thereof the following:
"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 birth certificate 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 current school enrollment form 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 five dollars, which shall permit the applicant 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 eleven 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 may not use 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. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars. (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 thirty hours of behind-the-wheel driving experience 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 current school enrollment form 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 five dollars. (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 eleven p.m.; (B) Only under the direct supervision of a licensed driver, age twenty-one years or older, between the hours of eleven 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) Operates the vehicle with no more than three passengers under the age of nineteen, unless the passengers are family members, in addition to the driver; (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 may not use 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. A law-enforcement officer may enforce the provisions of this paragraph only as a secondary action when a law-enforcement officer with probable cause detains a driver for a suspected violation of another provision of this code. A person violating the provisions of this paragraph is guilty of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars. (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. 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 (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 the day designated by the commissioner of the month in which the licensee attains the age of twenty-one. 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 two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents 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; or
(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 two dollars and fifty cents for each year the license is valid. An additional fee of fifty cents 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 two intermediate driver's license, is quality of a misdemeanor and, upon conviction thereof, shall for the first offense be fined twenty-five dollars; for a second offense be fined fifty dollars; and for a third or subsequent offense be fined seventy-five dollars.
ARTICLE 3. CANCELLATION, SUSPENSION, OR REVOCATION OF LICENSES.
§17B-3-6. Authority of division to suspend or revoke license; hearing.
(a) The division is hereby authorized to suspend the driver's license of any person without preliminary hearing upon a showing by its records or other sufficient evidence that the licensee: (1) Has committed an offense for which mandatory revocation of a driver's license is required upon conviction; (2) Has by reckless or unlawful operation of a motor vehicle, caused or contributed to an accident resulting in the death or personal injury of another or property damage; (3) Has been convicted with such frequency of serious offenses against traffic regulations governing the movement of vehicles as to indicate a disrespect for traffic laws and a disregard for the safety of other persons on the highways; (4) Is an habitually reckless or negligent driver of a motor vehicle; (5) Is incompetent to drive a motor vehicle; (6) Has committed an offense in another state which if committed in this state would be a ground for suspension or revocation; (7) Has failed to pay or has defaulted on a plan for the payment of all costs, fines, forfeitures or penalties imposed by a magistrate court or municipal court within ninety days, as required by section two-a, article three, chapter fifty or section two-a, article ten, chapter eight of this code; (8) Has failed to appear or otherwise respond before a magistrate court or municipal court when charged with a motor vehicle violation as defined in section three-a of this article; (9) Is under the age of eighteen and has withdrawn either voluntarily or involuntarily due to misconduct from a secondary school or has failed to maintain satisfactory academic progress, as provided in section eleven, article eight, chapter eighteen of this code; or (10) Has failed to pay overdue child support or comply with subpoenas or warrants relating to paternity or child support proceedings, if a circuit court has ordered the suspension of the license as provided in article five-a, chapter forty-eight-a of this code and the child support enforcement division has forwarded to the division a copy of the court order suspending the license, or has forwarded its certification that the licensee has failed to comply with a new or modified order that stayed the suspension and provided for the payment of current support and any arrearage due. (b) The driver's license of any person having his or her license suspended shall be reinstated if: (1) The license was suspended under the provisions of subdivision (7), subsection (a) of this section and the payment of costs, fines, forfeitures or penalties imposed by the applicable court has been made;
(2) The license was suspended under the provisions of subdivision (8), subsection (a) of this section, and the person having his or her license suspended has appeared in court and has prevailed against the motor vehicle violations charged; or (3) The license was suspended under the provisions of subdivision (10), subsection (a) of this section, and the division has received a court order restoring the license or a certification by the child support enforcement division that the licensee is complying with the original support order or a new or modified order that provides for the payment of current support and any arrearage due. (c) Any reinstatement of a license under subdivision (1), (2) or (3), subsection (b) of this section shall be subject to a reinstatement fee designated in section nine of this article. (d) Upon suspending the driver's license of any person as hereinbefore in this section authorized, the division shall immediately notify the licensee in writing, sent by certified mail, return receipt requested, to the address given by the licensee in applying for license, and upon his request shall afford him an opportunity for a hearing as early as practical within not to exceed twenty days after receipt of such request in the county wherein the licensee resides unless the division and the licensee agree that such hearing may be held in some other county. Upon such hearing the commissioner or his duly authorized agent may administer oaths and may issue subpoenas for the attendance of witnesses and the production of relevant books and papers and may require a reexamination of the licensee. Upon such hearing the division shall either rescind its order of suspension or, good cause appearing therefor, may extend the suspension of such license or revoke such license. The provisions of this subsection (d) providing for notice and hearing are not applicable to a suspension under subdivision (10), subsection (a) of this section.
CHAPTER 18. EDUCATION.

ARTICLE 8. COMPULSORY SCHOOL ATTENDANCE.
§18-8-11. School attendance and satisfactory academic progress as conditions of licensing for privilege of operation of motor vehicle.

(a) In accordance with the provisions of sections three and five, article two, chapter seventeen-b of this code sections three-a and five, article two, chapter seventeen-b of this code, the Division of Motor Vehicles shall deny a license or instruction permit for the operation of a motor vehicle to any person under the age of eighteen who does not at the time of application present a diploma or other certificate of graduation issued to the person from a secondary high school of this state or any other state or documentation that the person: (1) Is enrolled and making satisfactory progress in a course leading to a general educational development certificate (GED) from a state- approved institution or organization or has obtained the certificate; (2) is enrolled and is making satisfactory academic progress in a secondary school of this state or any other state; (3) is excused from the requirement due to circumstances beyond his or her control; or (4) is enrolled in an institution of higher education as a full-time student in this state or any other state.
(b) The attendance director or chief administrator shall upon request provide documentation of enrollment status a Driver's Eligibility Certificate on a form approved by the Department of Education to any student at least fifteen but less than eighteen years of age upon request who is properly enrolled and is making satisfactory academic progress in a school under the jurisdiction of the official for presentation to the Division of Motor Vehicles on application for or reinstatement of an instruction permit or license to operate a motor vehicle. Whenever a student at least fifteen but less than eighteen years of age, except as provided in subsection (d) of this section, withdraws from school, the attendance director or chief administrator shall notify the Division of Motor Vehicles of the withdrawal not later than five days from the withdrawal date. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the licensee that the license will be suspended under the provisions of section three, article two, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the Division of Motor Vehicles before that time. If suspended, the division may not reinstate a license before the end of the semester following that in which the withdrawal occurred.
(c) Whenever a student at least fifteen but less than eighteen years of age, except as provided in subsection (g) of this section, withdraws from school, the attendance director or chief administrator shall notify the Division of Motor Vehicles of the student's withdrawal no later than five days from the date of the withdrawal. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the student that the student's instruction permit or license to operate a motor vehicle will be suspended under the provisions of section six, article three, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the Division of Motor Vehicles before that time. The notice shall also advise the student that he or she is entitled to a hearing before the county superintendent of schools or his or her designee or before the appropriate private school official concerning whether the student's withdrawal from school was due to a circumstance or circumstances beyond the control of the student. If suspended, the division may not reinstate an instruction permit or license until such time as the student returns to school and shows satisfactory academic progress or until such time as the student attains eighteen years of age.
(d) Whenever a student at least fifteen but less than eighteen years of age is enrolled in a secondary school and fails to maintain satisfactory academic progress, the attendance director or chief administrator shall follow the procedures set out in subsection (c) of this section to notify the Division of Motor Vehicles. Within five days of receipt of the notice, the Division of Motor Vehicles shall send notice to the student that the student's instruction permit or license will be suspended under the provisions of section six, article three, chapter seventeen-b of this code on the thirtieth day following the date the notice was sent unless documentation of compliance with the provisions of this section is received by the Division of Motor Vehicles before that time. The notice shall also advise the student that he or she is entitled to a hearing before the county superintendent of schools or his or her designee or before the appropriate private school official concerning whether the student's failure to make satisfactory academic progress was due to a circumstance or circumstances beyond the control of the student. Once suspension os ordered, the division may not reinstate an instruction permit or license until such time as the student shows satisfactory academic progress or until such time as the student attains eighteen years of age.
(e) Upon written request of a student, within ten days of receipt of a notice of suspension as provided by this section, the Division of Motor Vehicles shall afford the student the opportunity for an administrative hearing. The scope of the hearing shall be limited to determining if there is a question of improper identity, incorrect age, or some other clerical error.

(c) (f) For the purposes of this section:
(1) Withdrawal is defined as more than ten consecutive or fifteen total days unexcused absences during a school year, or suspension pursuant to subsections (a) and (b) of section one-a, article five, chapter eighteen-a of this code.
(2) 'Satisfactory academic progress' means the attaining and maintaining of grades sufficient to allow for graduation and course-work in an amount sufficient to allow graduation in five years or by age nineteen, whichever is earlier.
(3) 'Circumstances outside the control of the student' shall include but not be limited to medical reasons, familial responsibilities and the necessity of supporting oneself or another.
(3) (4) Suspension or expulsion from school or imprisonment in a jail or a West Virginia correctional facility is not a circumstance circumstance beyond the control of the person student.
(d) (g) Whenever the withdrawal from school of the student, or the student's failure to enroll in a course leading to or to obtain a GED or high school diploma, is or the student's failure to make satisfactory academic progress is due to a circumstance or circumstances beyond the control of the student, or the withdrawal from school is for the purpose of transfer to another school as confirmed in writing by the student's parent or guardian, no notice shall be sent to the Division of Motor Vehicles to suspend the student's motor vehicle operator's license and if the student is applying for a license, the attendance director or chief administrator shall provide the student with documentation to present to the Division of Motor Vehicles to excuse the student from the provisions of this section. The school district superintendent (or the appropriate school official of any private secondary school) with the assistance of the county attendance director and any other staff or school personnel shall be the sole judge of whether withdrawal is due to circumstances beyond the control of the person any of the grounds for denial or suspension of a license as provided by this section are due to a circumstance or circumstances beyond the control of the student.
(h) The State Board shall promulgate rules necessary for uniform implementation of this section among the counties and as may otherwise be necessary for the implementation of this section. The rule may not include attainment by a student of any certain grade point average as a measure of satisfactory progress toward graduation.
"
And,
By amending the title of the bill to read as follows:
Com. Sub. for H. B. 4023 - "A Bill to amend and reenact §17B-2-3a of the Code of West Virginia, 1931, as amended; to amend and reenact §17B-3-6 of said code; and to amend and reenact §18-8-11 of said code, all relating to the denial or suspension of the driver's license of any student between the ages of fifteen and eighteen who withdraws from school or fails to make substantial progress towards graduating; providing for appeal; defining certain terms; and providing for exceptions."
On motion of Delegate DeLong, the House of Delegates concurred in the Senate amendments.
The bill, as amended by the Senate, was then put upon its passage.
On the passage of the bill, the yeas and nays were taken (Roll No. 525), and there were--yeas 76, nays 21, absent and not voting 3, with the nays and absent and not voting being as follows:
Nays: Anderson, Andes, Armstead, Ashley, Blair, Border, Canterbury, Carmichael, Cowles, Ireland, Lane, C. Miller, J. Miller, Overington, Porter, Romine, Schoen, Sobonya, Sumner, Walters and Yost.
Absent And Not Voting: Mahan, Marshall and Stemple.
So, a majority of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 4023) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates.
Delegate Caputo asked and obtained unanimous consent that the remarks of Delegate DeLong be printed in the Appendix to the Journal.
Delegate Palumbo asked and obtained unanimous consent that the remarks of Delegate Wells be printed in the Appendix to the Journal.
Delegate Long asked and obtained unanimous consent that the remarks of Delegate Craig regarding Delegate Frederick be printed in the Appendix to the Journal.
Messages from the Senate

A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, a bill of the House of Delegates as follows:
Com. Sub. for H. B. 2967, Creating the "West Virginia Remembers Program",
Com. Sub. for H. B. 4018, Renewing the West Virginia Small Business Linked Deposit Program,
H. B. 4038, Allowing the Division of Labor to promulgate Rules to license elevator workers,
Com. Sub. for H. B. 4041, Relating to the regulation and treatment of the production of natural gas and coalbed methane,
Com. Sub. for H. B. 4088, Allowing farm equipment dealers to calculate their inventory based on an average of their yearly sales,
Com. Sub. for H. B. 4117, Expanding eligibility for state minimum salary supplements for classroom teachers achieving certain national certification,
Com. Sub. for H. B. 4287, Clarifying that certain funds are authorized investments for funds of political subdivisions,
Com. Sub. for H. B. 4290, Relating to electronic commerce,
Com. Sub. for H. B. 4357, Extending the Neighborhood Investment Program Act and eligibility for tax credits under the act,
Com. Sub. for H. B. 4407, Requiring automatic tire chains as standard equipment on all new school buses,
H. B. 4449, Allowing the Higher Education Policy Commission and WV Council for Community and Technical College Education to enter into lease-purchase agreements,
Com. Sub. for H. B. 4472, Requiring a board of education to wait ten days before posting a new job opening following the death of an employee,
H. B. 4474, Relating to registered nurses required in operating rooms,
Com. Sub. for H. B. 4495, Limiting the use of the titles "registered nurse", "nurse practitioner", and "nurse" to certain qualified individuals,
Com. Sub. for H. B. 4554, Testing school bus operators every other year,
H. B. 4670, Authorizing the Public Employees Insurance Agency to charge interest to employers on amounts not paid on time,
H. B. 4684, Amending the West Virginia Film Industry Investment Act,
And,
H. B. 4715, Making a supplementary appropriation to the Department of Transportation.
A message from the Senate, by
The Clerk of the Senate, announced that the Senate had passed, without amendment, to take effect July 1, 2008, a bill of the House of Delegates as follows:
H. B. 4477, Relating to payment of GED exam fees.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, of
Com. Sub. for S. B. 9, Permitting hunter safety program in public schools,
Com. Sub. for S. B. 142, Relating to limited expungement of certain criminal records,
Com. Sub. for S. B. 201, Providing terms for certain public retirement benefits disqualification,
Com. Sub. for S. B. 207, Relating to Deputy Sheriff Retirement System Act,
Com. Sub. for S. B. 227, Relating to State Teachers Retirement System,
Com. Sub. for S. B. 280, Relating to Municipal Economic Opportunity Development District Act,
Com. Sub. for S. B. 323, Relating to stormwater systems generally,
Com. Sub. for S. B. 467, Reauthorizing Dam Safety Rehabilitation Revolving Fund,
Com. Sub. for S. B. 474, Creating limited sales tax holiday for certain Energy Star appliance purchases,
Com. Sub. for S. B. 481, Authorizing physician assistants to conduct mental health hygiene process examinations,
Com. Sub. for S. B. 503, Requiring solid waste facility permit applicants furnish fingerprints for criminal background checks,
Com. Sub. for S. B. 504, Relating to child support enforcement,
Com. Sub. for S. B. 535, Modifying certain penalties for DUI,
Com. Sub. for S. B. 545, Relating to tax administration efficiency,
Com. Sub. for S. B. 553, Creating Permitting and Licensing Information Act,
Com. Sub. for S. B. 622, Creating Voluntary Rural and Outdoor Heritage Conservation Act,
Com. Sub. for S. B. 638, Requiring information collection from catalytic converter purchasers,
S. B. 641, Creating Water Resources Protection and Management Act,
Com. Sub. for S. B. 650, Relating to Emergency Medical Services Retirement System,
Com. Sub. for S. B. 680, Relating to corporate net income tax and business franchise tax,
Com. Sub. for S. B. 682, Creating Community and Technical College Capital Improvement Fund,
S. B. 722, Granting regulatory power to certain Board of Pharmacy facilities,
Com. Sub. for S. B. 736, Relating to real property sales for persons with legal disabilities,
Com. Sub. for S. B. 746, Establishing takeback program for certain electronics,
S. B. 780, Relating to Public Employees Grievance Procedure,
And,
S. B. 784, Relating to reforming, altering or modifying county government.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect from passage, of
Com. Sub. for S. B. 287, Establishing West Virginia Research Trust Fund,
Com. Sub. for S. B. 349, Authorizing Miscellaneous Boards and Agencies promulgate legislative rules,
Com. Sub. for S. B. 417, Authorizing Department of Revenue promulgate legislative rules,
Com. Sub. for S. B. 476, Creating State Employee Sick Leave Fund,
Com. Sub. for S. B. 593, Clarifying library funding obligation from local share,
S. B. 595, Establishing education goals and objectives for 2020,
And,
Com. Sub. for S. B. 596, Relating to Streamlined Sales and Use Tax Agreement.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the amendment of the House of Delegates and the passage, as amended, to take effect July 1, 2008, of
Com. Sub. for S. B. 239, Creating Senior Citizen Property Tax Payment Deferment Act,
Com. Sub. for S. B. 309, Increasing Secretary of Transportation and Commissioner of Highways salary when one person serves as both,
Com. Sub. for S. B. 492, Eliminating part-time prosecutors,
Com. Sub. for S. B. 564, Relating to higher education tuition and fee waivers,
Com. Sub. for S. B. 657, Creating Alcohol and Drug-Free Workplace Act,
S. B. 671, Increasing presiding Court of Claims' judge compensation,
And,
Com. Sub. for S. B. 715, Defining certain Public Employees Insurance Agency eligibility.
A message from the Senate, by
The Clerk of the Senate, announced concurrence in the effective date, to take effect July 1, 2008 and the passage, of
Com. Sub. for S. B. 751, Relating to Surface Coal Mining and Reclamation Act.
A message from the Clerk of the Senate announced concurrence in the title amendment of the House of Delegates to, and the passage, as amended, of
Com. Sub. for S. B. 224, Creating Joint Emergency Services Act of 2008,
And,
S. B. 340, Requiring consumers' notification of information security breach.
A message from the Clerk of the Senate announced concurrence in the amendments of the House of Delegates to, and the adoption as amended, of
S. C. R. 48, Requesting Division of Highways name bridge in Puritan Mines, Mingo County, "Rev. Glen and Gladys Merritt Bridge",
And,
S. C. R. 58, Requesting Division of Highways name bridge near Eleanor, Putnam County, "Memorial Bridge".
A message from the Senate, by
The Clerk of the Senate, announced the adoption by the Senate, without amendment, of a concurrent resolution of the House of Delegates as follows:
H. C. R. 24, The A. R. "Dick" Townsend Memorial Roadway,
H. C. R. 37, Urging the Government of Turkey to uphold and safeguard religious and human rights and to cease its discrimination of the Ecumenical Patriarchate,
H. C. R. 79, Requesting the Joint Committee on Government and Finance to study the feasibility of election day registration in and for the State of West Virginia,
H. C. R. 105, The "Elmer and May Cline Memorial Bridge",
And,
H. C. R. 107, The "Wilburn and Effie Cline Memorial Bridge".
Delegate Stalnaker noted to the Clerk that he was necessarily absent today when the votes were taken on Roll Nos. 459, 460, 461 and 521, and had he been present, he would have voted "Yea" thereon.
Delegate Stalnaker also noted to the Clerk that he was absent on yesterday, March 7, 2008, when the votes were taken on Roll No. 401 through 443 and had he been present, he would have voted "Yea" thereon.
The Constitutional expiration of the Regular Session having arrived, at 12:00 a.m., the House of Delegates adjourned until 12:15 a.m., Sunday, March 9, 2008.