Committee Substitute
House Bill 4210 History
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COMMITTEE SUBSTITUTE
FOR
H. B. 4210
(
By Delegates Mahan, Palumbo, Cann,
Pino and Overington
)
(Originating in the Committee on the Judiciary)
[February 27, 2006]
A BILL
to amend and reenact article 10, chapter 64 of the code of
West Virginia, 1931, as amended;
all relating generally to the
promulgation of administrative rules by the various executive
or administrative agencies and the procedures relating
thereto; legislative mandate or authorization for the
promulgation of certain legislative rules by various executive
or administrative agencies of the state; authorizing certain
of the agencies to promulgate certain legislative rules in the
form that the rules were filed in the state register;
authorizing certain of the agencies to promulgate certain
legislative rules with various modifications presented to and
recommended by the legislative rule-making review committee;
authorizing certain of the agencies to promulgate certain
legislative rules as amended by the legislature; authorizing
certain of the agencies to promulgate certain legislative
rules with various modifications presented to and recommended
by the legislative rule-making review committee and as amended by the legislature; authorizing the Division of Forestry to
promulgate a legislative rule relating to ginseng; authorizing
the Office of Miners Health, Safety and Training to promulgate
a legislative rule relating to safety provisions for clearing
crews; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to commercial
whitewater outfitters; authorizing the Division of Natural
Resources to promulgate a legislative rule relating to
boating; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to the rules governing
the public use of West Virginia State Parks, State Forests and
State Wildlife Management Areas under the Division;
authorizing the Division of Natural Resources to promulgate a
legislative rule relating to terms defining the terms to be
used concerning all hunting and trapping rules; authorizing
the Division of Natural Resources to promulgate a legislative
rule relating to wild boar hunting; authorizing the Division
of Natural Resources to promulgate a legislative rule relating
to special waterfowl hunting; authorizing the Division of
Natural Resources to promulgate a legislative rule relating to
falconry; authorizing the Division of Natural Resources to
promulgate a legislative rule relating to lifetime hunting,
trapping and fishing licenses; authorizing the Division of
Natural Resources to promulgate a legislative rule relating to miscellaneous permits and licenses; authorizing the Division
of Labor to promulgate a legislative rule relating to the West
Virginia Manufactured Housing Construction and Safety
Standards Board; authorizing the Division of Labor to
promulgate a legislative rule relating to nurse overtime
complaints; and authorizing the Division of Tourism to
promulgate a legislative rule relating to the Direct
Advertising Grants Program.
Be it enacted by the Legislature of West Virginia:
That article 10, chapter 64 of the code of West Virginia,
1931, as amended, be amended and reenacted to read as follows:
ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE
LEGISLATIVE RULES.
§64-10-1. Division of Forestry.
The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section three-a, article one-a, chapter nineteen, of
this code, modified by the Division of Forestry to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the eighteenth day of October, two
thousand five, relating to the Division of Forestry (Ginseng, 22
CSR 1), is authorized, with the following amendment:
On page six, by striking out subsection 13.1, in its entirety
and renumbering the remaining subsections.
§64-10-2. Office of Miners Health, Safety and Training.
The legislative rule filed in the state register on the
sixteenth day of March, two thousand five, authorized under the
authority of section six, article one, chapter twenty-two-a, of
this code, modified by the Office of Miners Health, Safety and
Training to meet the objections of the legislative rule-making
review committee and refiled in the state register on the tenth day
of June, two thousand five, relating to the Office of Miners
Health, Safety and Training (Safety provisions for clearing crews,
56 CSR 2),
is authorized, with the following amendments:
On page twelve, section twenty-one, following subsection 21.2,
by inserting the following:
"21.3. The employer shall provide annual continuing training
of at least eight hours covering the subjects listed in subdivision
21.2.b for each employee, including supervisors, at no cost to the
employee.".
§64-10-3. Division of Natural Resources.
(a) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section twenty-three-a, article two, chapter twenty,
of this code, modified by the Division of Natural Resources to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the seventeenth day of October,
two thousand five, relating to the Division of Natural Resources (Commercial whitewater outfitters, 58 CSR 12), is authorized.
(b) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section twenty-three-a, article two, chapter twenty,
of this code, modified by the Division of Natural Resources to meet
the objections of the legislative rule-making review committee and
refiled in the state register on the seventeenth day of October,
two thousand five, relating to the Division of Natural Resources
(Boating, 58 CSR 25), is authorized.
(c) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section seven, article one, chapter twenty, of this
code, modified by the Division of Natural Resources to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the eighteenth day of October, two
thousand five, relating to the Division of Natural Resources
(Public use of West Virginia State Parks, State Forests and State
Wildlife Management Areas under the Division of Natural Resources,
58 CSR 31), is authorized with the amendments set forth below:
On page one, subsection 1.1, after the words, "Division of
Natural Resources" by adding thereto, "Parks and Recreation
Section".
On page three, subsection 2.21, by striking out the words
"Except as authorized in writing by the Director for group functions, no" and inserting in lieu thereof the word "No";
On page three, subsection 2.21, after the words "Chief Logan",
by striking out the words "except in the lodge and conference
center";
And,
On page four, subsection 2.21, after the words "prohibited by
posted signs" by striking out the period and inserting in lieu
thereof the following ": Provided, That any person, group or
association sponsoring a private party at the restaurant at Chief
Logan State Park or the multi-purpose log barn at Prickett's Fort
State Park may provide beer, wine, liquor and all other alcoholic
beverages for guests at a private party as long as the party is not
open to the general public.".
(d) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section seven, article one, chapter twenty, of this
code, modified by the Division of Natural Resources to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the seventeenth day of October,
two thousand five, relating to the Division of Natural Resources
(Terms defining the terms to be used concerning all hunting and
trapping rules, 58 CSR 46), is authorized, with the following
amendment:
On page two, section two, subsection ten, after the words "Individual Permanently Disabled in the Lower Extremities" by
striking out the remaining part of subsection ten and inserting in
lieu thereof the following "means an individual who is permanently
and totally disabled due to paralysis or disease in the lower half
of the body, which makes it impossible to ambulate successfully
more than two hundred feet without assistance".
(e) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section seven, article one, chapter twenty, of this
code, relating to the Division of Natural Resources (Wild boar
hunting, 58 CSR 52), is authorized.
(f) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section seven, article one, chapter twenty, of this
code, relating to the Division of Natural Resources (Special
waterfowl hunting, 58 CSR 58), is authorized.
(g) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section seven, article one, chapter twenty, of this
code, relating to the Division of Natural Resources (Miscellaneous
permits and licenses, 58 CSR 64), is
disapproved and not
authorized.
(h) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the authority of section seven, article one, chapter twenty, of this
code, modified by the Division of Natural Resources to meet the
objections of the legislative rule-making review committee and
refiled in the state register on the thirteenth day of October, two
thousand five, relating to the Division of Natural Resources
(Falconry, 58 CSR 65), is authorized.
(i) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section seven, article two-b, chapter twenty, of this
code, relating to the Division of Natural Resources (Lifetime
hunting, trapping and fishing licenses, 58 CSR 67), is authorized.
§64-10-4. Division of Labor.
(a) The legislative rule filed in the state register on the
twenty-ninth day of July, two thousand five, authorized under the
authority of section four, article nine, chapter twenty-one, of
this code, modified by the Division of Labor to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the first day of November, two thousand five,
relating to the Division of Labor (West Virginia Manufactured
Housing Construction and Safety Standards Board, 42 CSR 19),
is
authorized, with the following amendments:
On page thirteen, section ten-a, subsection two, subdivision
(a), paragraph (iii), by striking the words "American National
Standards Institute, A225.1 Installation Standard for Manufactured Homes" and inserting in lieu thereof the words "National Fire
Protection Association 225 Model Manufactured Home Installation
Standard";
On page nineteen, section fifteen, by striking subsection 15.1
in its entirety;
On page twenty, section fifteen, by striking subsections 15.4
and 15.5 in their entirety;
On page twenty-one, section fifteen, by striking subsection
15.12 in its entirety; and
By renumbering the remaining subsections in section fifteen of
the Legislative rule.
(b) The legislative rule filed in the state register on the
tenth day of February, two thousand five, authorized under the
authority of section four, article five-f, chapter twenty-one, of
this code, modified by the Division of Labor to meet the objections
of the legislative rule-making review committee and refiled in the
state register on the eighteenth day of January, two thousand six,
relating to the Division of Labor (nurse overtime complaints, 42
CSR 30), is authorized.
§64-10-5. Division of Tourism.
The legislative rule filed in the state register on the
twenty-seventh day of July, two thousand five, authorized under the
authority of section nine, article two, chapter five-b, of this
code, modified by the Division of Tourism to meet the objections of the legislative rule-making review committee and refiled in the
state register on the eleventh day of January, two thousand six,
relating to the Division of Tourism (Direct Advertising Grants
Program, 144 CSR 1), is authorized,
with the following amendments:
On page one, following section 144-1-1, by striking out all of
section 144-1-2 and inserting in lieu thereof the following:
"§144-1-2. Definitions.
2.1 "Applicant" means a for profit or non-profit entity or
organization located within the state that promotes tourism within
the state and is also a destination. The term "applicant" may not
include vendors that would be supplying services paid for out of
grant funds, schools or camps.
2.2 "Application" means a written request for tourism
promotion funds pursuant to this rule containing all forms,
information and attachments executed by the applicant and all
partners, if applicable.
2.3. "Amenity" includes spa services, golf courses, full-
service restaurants, skiing or snow activities, tennis, horseback
riding, hiking trails, boating or fishing.
2.4. "Attraction" means an entity which is at least one of the
following:
2.4.1. A cultural or historic site or event which includes,
but is not limited to, fairs or festivals, heritage and historic
sites and museums;
2.4.2. Entertainment establishments which include, but are
not limited to, pari-mutuel gaming establishments, live performing
art centers, sporting organizations or arenas, vineyards or
wineries;
2.4.3. Scenic or natural areas such as show caves or
caverns;
2.4.4. Theme or Amusement Parks;
2.4.5. Zoos, Aquariums or Wild Animal Parks;
2.4.6. Recreational Activities, including but not limited
to whitewater rafting, skiing and snow activities, mountain biking,
hunting and fishing.
2.5. "Code" means the Code of West Virginia.
2.6. "Commission" means the Tourism Commission created
pursuant to §5B-2-8 of the Code.
2.7. "Destination" means one of the following:
2.7.1. A region or area located within the state containing
three or more attractions;
2.7.2. An independent activity located within the state;
2.7.3. A cultural or historic site or event which includes,
but is not limited to, fairs or festivals, heritage and historic
sites and museums;
2.7.4. Entertainment establishments which include, but are
not limited to, pari-mutuel gaming establishments, live performing
art centers, sporting organizations or arenas, vineyards or wineries;
2.7.5. Scenic or natural sites such as show caves or
caverns;
2.7.6. Theme or Amusement Parks; or
2.7.7. Zoos, Aquariums or Wild Animal Parks;
2.8. "Destination Inn or Bed and Breakfast" means a lodging
facility located within the state whose recognized reputation for
service and amenities are the primary motivating factor for
visitors to travel to the area where it is located.
2.9. "Division" means the Division of Tourism created pursuant
to §5B-2-8 of the code.
2.10. "Fulfillment" means printed materials used to respond to
an inquiry requesting additional information generated by direct
advertising or printed materials provided to the division, a state
park, the national park service or other government agency for
direct advertising.
2.11. "Grant Period" means the twelve month period running
from the beginning project date through the ending project date and
any extensions granted by the commission pursuant to subdivision
8.4.3. of this rule.
2.12. "Independent Activity" means an entity or organization
which attracts a minimum of eighty-five percent (85%) of its
visitors from outside the local market and is at least one of the
following:
2.12.1. An entity or organization which provides
recreational activities including, but not limited to, whitewater
rafting, skiing and snow activities, mountain biking, hunting and
fishing, bus tours, dinner cruises and sightseeing tours;
2.12.2. A Resort;
2.12.3. A Destination Inn or Bed and Breakfast;
2.12.4. An entity or organization offering vacation
rentals; or
2.12.5. Destination shopping.
2.13. "Local Market" means the geographic area within fifty
(50) miles of a destination.
2.14. "Partner" means an entity or organization located within
the state making a financial contribution toward the applicant's
match requirement for an application for grant funds for a
collaborative marketing program with a central advertising message
directing tourists to a destination being represented by the
applicant. The term "partner" may not include vendors that would
be supplying services paid for out of grant funds.
2.15. "Resort" means a full-service lodging facility that is
frequented for relaxation or recreational purposes and offers at
least two amenities.
2.16. "Return on Investment" means the measure of a project's
ability to use grant funds to generate additional value, including,
but not limited to additional bookings and reservations.
2.17. "Total project cost" means the total of all proposed
eligible expenditures contained within an application.
2.18. "Vacation Rental" means a lodging facility including
chalets, cabins or condominiums. The term "vacation rental" may
not include hotels or motels.";
On page two, subsection 3.2, following the word "destination"
by striking "/attraction";
On page two, subsection 3.7, following the word "destination"
by striking the words "or attraction";
On page four, subdivision 4.3.4., following the word "funding"
and the period, by adding the following:
"Applications for projects that include repeat marketing
efforts shall contain information demonstrating that such repeat
marketing efforts are in addition to regular ongoing advertising
activities.";
On page four, following subdivision 4.3.9. by adding the
following:
"4.3.10. The project supports advertising activities that
are over and above regular ongoing advertising activities.";
On page four, following section 144-1-5, by striking out all
of section 144-1-6 and inserting in lieu thereof the following:
"§144-1-6. Eligible and Ineligible Expenditures of Grant
Funds.
6.1.Grant funds may only be used to pay for eligible expenditures for direct advertising. Eligible expenses for direct
advertising include, but are not limited to the following:
6.1.1. The costs of advertising on television, radio, or other
telecommunications media, in newspapers, magazines or other print
media, direct mail advertising, and outdoor advertising or any
combination thereof;
6.1.2. The costs of purchasing and using mailing lists for
direct mail promotions;
6.1.3. The costs for United States postage used for direct
mail and fulfillment for direct advertising: Provided, That if bulk
mail is appropriate, the applicant must use bulk mail and
reimbursement will be limited to the bulk mail rate; and if bulk
mail is not appropriate, reimbursement will be limited to the cost
of United States mail first class postage;
6.1.4. The costs of printing travel related literature:
Provided, That sixty percent (60%) of such literature is used as
fulfillment for direct advertising within the approved application
or approved request for modification of an approved application; or
6.1.5. Registration fees for consumer and trade shows:
Provided, That the participation in such shows is for the purpose
of attracting visitors to the state.
6.2. Eighty percent (80%) of a project's direct advertising
must be directed toward areas outside of the local market or in
major out-of-state markets, except for direct advertising for a fair or festival grant authorized by subsection 7.3 of this rule.
6.3. Notwithstanding the provisions of subsection 6.2 of this
rule, all direct advertising in the form of billboards must be
directed toward areas outside of the local market or in major out-
of-state markets, except billboards for a fair or festival grant
authorized by subsection 7.3 of this rule.
6.4. All direct advertising in the form of billboards must
have a creative concept or layout approved by the Division in order
for any of its cost to be considered an eligible expenditure.
6.5. Any direct advertising related to real estate must be for
vacation rentals only. Any portion of direct advertising relating
to the sale of real estate must be pro-rated. A creative concept
must be submitted with any application or request for modification
of an approved application for direct advertising relating to real
estate. Advertisements for the sale of real estate in visitor
guides and brochures must be grouped on a specific page or pages
and those pages pro-rated from the grant at the time of the
submission of the application. (Example: CVB X has a 32 page
visitor guide and has determined that area realtors will take up 2
pages - CVB X must disclose this in its grant application and media
breakout and the totals must request funding for only 30 pages.)
No direct advertising for real estate sales or realty agencies are
permitted within cooperative advertising, unless such ads are
specifically and clearly delineated as vacation rentals only.
6.6. Direct advertising may be in the form of cooperative
advertising which is advertising that represents a community,
region, county, multi-county or statewide organization and may
include tourism businesses or organizations that enhance the
destination for which the grant is to cover. Cooperative
advertising must be entirely directed toward areas outside the
local market or in major out-of-state markets. All cooperative
advertising must have a creative concept approved by the Division
in order for any of its cost to be considered an eligible
expenditure.
6.7. Eligible expenses may include production expenses for
direct advertising in the media categories provided in this
subsection. The total cost of such production expenses may not
exceed fifteen (15%) of the total cost of the direct advertising
and in no event may the total cost of such production expenses
exceed $22,500, for any one of the following media categories:
6.7.1. Printed material, including the printing of direct
mail and travel related literature;
6.7.2. Print media;
6.7.3. Television and radio; and
6.7.4. Billboards.
6.8. Grant funds may not be used to pay for ineligible
expenditures. Ineligible expenditures include, but are not limited
to the following:
6.8.1. Regular and ordinary business costs of the applicant
including, but not limited to, supplies, personnel, phone, normal
postage, distribution and shipping expenses or travel costs;
6.8.2. Any costs associated with preparation of the direct
advertising grant application;
6.8.3. Costs for the rental or purchase of real estate;
6.8.4. Construction costs;
6.8.5. Costs of political or lobbying activities of any
kind;
6.8.6. Membership fees or dues to any organization, or
solicitation of membership to any organization through advertising
within a grant program authorized by this rule;
6.8.7. Costs associated with the start up of any business
or publication even if the business or publication may be totally
or partially devoted to the promotion of tourism in the state;
6.8.8. The cost of purchase of audio/visual equipment;
6.8.9. Costs of alcoholic beverages;
6.8.10. Costs for any expenditure not identified in the
application, unless the Commission grants prior approval in
writing;
6.8.11. Costs of any public relations or research expense;
6.8.12. Costs for key rings, bumper stickers, mugs or any
other similar promotional item;
6.8.13. Event production expenses, including costs for audio equipment, awards, entertainment, portable restrooms, labor
or refreshments;
6.8.14. Costs relating to fundraising activities;
6.8.15. Costs associated with retail advertising, except
for destination shopping which is able to produce verification that
said destination attracts a minimum of eighty-five (85%) of its
visitors from outside the local market: Provided, That no retail
advertising may include price point advertising;
6.8.16. Costs of Tourist Oriented Directional Signs (TODS)
and logo signs for gas, food, lodging and camping;
6.8.17. Costs of sponsorships; or
6.8.18. Costs of items for resale.";
On page six, in the fourth line of section 7.2, following the
word "exceed" by striking "2,500" and inserting in lieu thereof
"7,500";
On page six, in the fourth line of section 7.2, following the
word "applicant" by striking "in any given quarter as defined from
time to time by the Division" and inserting in lieu thereof "and no
applicant shall receive more than two grants per fiscal year";
On page six, in the seventh line of section 7.2, following the
words "minimum of" by striking "50" and inserting in lieu thereof
"25";
On page six, in the ninth line of section 7.2, following the
word "exceed" by striking "750,000" and inserting in lieu thereof "2,000,000";
On page six, in the fourteenth line of section 7.2, following
the word "date" and the period by inserting the following:
"No applicant who has received a grant larger than $7,500 in
any fiscal year may apply for a small grant under this section
during the same fiscal year: Provided, That a non-profit entity may
apply for and receive small grants even if it has received large
grants in the same fiscal year."