Senate Bill No. 572
(By Senators Wooton, Love, Ball, Anderson, Hunter, bailey,
Schoonover, Kessler and Edgell)
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[Introduced February 18, 1999;
referred to the Committee on Natural Resources.]
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A Bill to amend and reenact sections twenty-three-a and twenty-
three-e, article two, chapter twenty of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to amend and reenact section one, article five-c, chapter
twenty-one of said code, all relating to providing for the
issuance of one additional whitewater rafting license on the
Gauley River; instituting a moratorium on additional
whitewater licenses on certain sections of the New and Gauley
rivers; freezing minimum license allocations for existing
licenses on certain sections of the New and Gauley rivers;
defining minimum license allocations; providing for the
continued study of rafting carrying capacity of the state's
rivers by the whitewater commission; and clarifying that
seasonal employees of commercial whitewater outfitters are exempt from overtime wage requirements.
Be it enacted by the Legislature of West Virginia:
That sections twenty-three-a and twenty-three-e, article two,
chapter twenty of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted; and to
amend and reenact section one, article five-c, chapter twenty-one
of said code, all to read as follows:
CHAPTER 20. NATURAL RESOURCES.
ARTICLE 2. WILDLIFE RESOURCES.
§20-2-23a. Whitewater commission; powers and duties of commission
and division of natural resources; allocations; civil and
criminal penalties for violations.
(a) There is hereby created a whitewater commission within the
division of natural resources. The commission shall consist of the
director of the division of natural resources or his or her
designee; the director of the division of parks and tourism or his
or her designee; three representatives of private river users who
have no affiliation with any commercial river enterprise to be
appointed by the governor:
Provided, That no more than one
representative of the private river users may be from each
whitewater zone; and four persons representing four different
licensed commercial whitewater outfitters currently operating
within the state to be appointed by the governor. The
superintendent of the New River Gorge national park or his or her designee shall be a nonvoting member of the commission. All
appointed members of the commission shall be citizens and residents
of West Virginia. Of the four representatives of commercial
outfitters, two persons shall represent
the small commercial
whitewater outfitters holding or controlling through corporate
affiliation or common ownership multiple licenses in West Virginia
and two persons shall represent commercial whitewater outfitters in
West Virginia who
have hold only a single license
and who have no
common ownership or corporate affiliation with another licensee,
the. The director of the division of natural resources shall serve
as chairperson of the commission. Of the seven members of the
commission first appointed by the governor, two shall be appointed
for a term of one year, two for a term of two years and three for
a term of three years. Thereafter, the terms of all appointed
members of the commission are for three years. Members shall serve
until their successors have been appointed and any vacancy in the
office of a member shall be filled by appointment for the unexpired
term. Members representing commercial outfitters who have served
at least two years on the commission are not eligible for
reappointment to a successive term.
(b) The commission has the following powers and duties:
(1) To investigate and study commercial whitewater rafting,
outfitting and activities related thereto which take place along
the rivers or waters of the state;
(2) To designate any such rivers or waters or any portions
thereof as "whitewater zones" for which commercial whitewater
rafting, outfitting and activities are to be investigated and
studied, and to determine the order and the periods of time within
which the investigations and studies are to be conducted. The
commission shall first investigate and study those whitewater zones
which it finds to present serious problems requiring immediate
regulation, including, without limitation, safety hazards and
problems of overcrowding or environmental misuse;
(3) To restrict, deny or postpone the issuance of licenses to
additional commercial whitewater outfitters seeking to operate in
areas and portions of rivers and waters in this state designated
whitewater zones by action of the director of the division of
natural resources as authorized under prior enactment of this
section and so designated by the filing of a written notice entered
upon the records of the division containing the designation and
reasonable description of the whitewater zone:
Provided, That in
consideration of the consolidation occurring among outfitting
companies providing rafting services on the Gauley River, the
commission shall grant one additional whitewater rafting license
for the Gauley River on or before the first day of July, one
thousand nine hundred ninety-nine, with preference being given in
the selection process to the applicant best satisfying the
following criteria: (i) The applicant demonstrates a record of providing commercial rafting and related whitewater services in a
safe and lawful manner on the New River and other rivers; (ii) the
applicant has continuously engaged for three or more years in the
commercial rafting business on the New River and has, or can
obtain, the necessary equipment and facilities to support Gauley
River operations; (iii) the seniority of the application as
measured by the length of time the applicant has sought a Gauley
River license with the more senior application given preference;
(iv) that the applicant is not affiliated with, operated or owned
by an existing Gauley River licensee; (v) that the applicant has no
common ownership with an existing Gauley River licensee; and (vi)
that the economic benefit represented by the award of a Gauley
River license will serve to assist the promotion of tourism and the
delivery of outfitting services beyond Fayette and Nicholas
counties. In authorizing the issuance of an additional Gauley
River license, it is the intention of the Legislature that the
commission not increase the carrying capacity of a current Gauley
River licensee, but that the commission promote and maintain
competition among licensees by increasing the number of independent
outfitters operating on the Gauley;
(4) To commission
a three-year study such studies as
are
necessary to determine the physical carrying capacity
and monitor
the levels of use on the New, Gauley, Cheat, Shenandoah and Tygart
rivers and how each relates to the overall
quality of the rafting experience, the economic impact of
rafting, tourism and employment
in the state and the safety of the general public:
Provided, That
if, during
the three-year a study period, the commission deems that
overcrowding is not a problem on any whitewater zone
on the Cheat,
Shenandoah and Tygart rivers, or on the New River upstream of the
confluence of the Greenbrier and New rivers and on the Gauley River
upstream of the Summersville Dam, then it may issue a license;
(5) Based on the findings of
a the three-year study of the
carrying capacity
of a river, to formulate rational criteria for an
allocation methodology
for the river subject to the study,
including, but not limited to, a minimum allocation for each river
studied;
(6) To immediately implement a freeze on mandated changes in
use allocations for the licenses of existing licensees on
moratorium sections of the Gauley and New rivers as defined in
subsection (d) of this section. All such licenses shall carry the
use allocation in effect on the second day of May, one thousand
nine hundred ninety-two. To implement the allocation methodology,
which shall be implemented by the commission at the conclusion of
the three-year study period and not later than the first day of
July, one thousand nine hundred ninety-five, The commission shall
implement allocation methodologies for other rivers as the
commission, after appropriate study, may deem necessary with all
such allocation methodologies implemented by rules promulgated pursuant to chapter twenty-nine-a of this code;
(7) To determine administrative policies relating to
regulation of the whitewater industry and to administer such
policies, except that the commission shall delegate to the director
of the division of natural resources or his or her designee the
authority to administer the day-to-day responsibilities of the
commission pursuant to this section and may vest in the director of
the division of natural resources or his or her designee the
authority to make determinations with respect to which it is not
practicable to convene or to poll the commission, within guidelines
established by the commission;
(8) To review all contracts or agreements with governmental
agencies related to whitewater studies or regulation, and any
negotiations related thereto;
(9) To verify reports by outfitters of numbers of river users
and guides and to establish a system for reporting, prior to the
departure of any craft, the number of river users and guides on
each whitewater expedition;
(10) To regulate the issuance, transfer, and renewal of
licenses. However, licenses issued to commercial whitewater
outfitters or use allocations or other privileges conferred by a
license may be transferred, sold, offered as security to financial
institutions or otherwise encumbered, upon notice in writing to the
commission and the director of the division of natural resources, subject to the following limitations: (i) The commission may
refuse a transfer upon a finding that there is reasonable cause to
believe that the safety of members of the public may be adversely
affected by the transfer; and (ii) the commission shall require
that taxes, workers' compensation and other obligations due the
state be paid prior to any transfer;
(11) To collect, for the
duration of a study period
established in subdivision (4) of this subsection, an annual
license fee of five hundred dollars for each river on which a
commercial whitewater outfitter operates. The annual per river
license fee is limited to the Cheat, Gauley, New, Shenandoah and
Tygart rivers. The annual license fee for a commercial whitewater
outfitter operating on a river not so designated is five hundred
dollars regardless of the number of rivers operated on. A
commercial whitewater outfitter who is operating on a river
designated in this subdivision and who has paid the annual per
river license fee may not be required to pay an additional annual
license fee to operate on a nondesignated river. The commercial
whitewater outfitter license shall be issued by the commission and
is for a period of ten years:
Provided, That an outfitter pays the
required annual license fee. If an outfitter fails to pay the
license fee, then the license shall be suspended until the license
fee is paid. Licenses are subject to the bonding provisions set
forth in section twenty-three-d of this article and the revocation provisions set forth in the rules promulgated by the director of
the division of natural resources. License fees shall be used by
the division of natural resources for the purpose of enforcing and
administering the provisions of this section;
(12) To establish a special study and improvement fee to be
paid by outfitters and to establish procedures for the collection
and enforcement of the special study and improvement fee;
(13) To establish a procedure for hearings on violations of
this section and rules promulgated thereunder and to establish
civil penalties for violations of this section and rules
promulgated thereunder; and
(14) To approve rules promulgated by the director of the
division of natural resources pursuant to chapter twenty-nine-a of
this code, with respect to commercial whitewater outfitters
operating upon the waters of the state, whether or not such waters
have been designated whitewater zones, which relate to: (i) Minimum
safety requirements for equipment; (ii) standards for the size of
rafts and number of persons which may be transported in any one
raft; (iii) qualifications of commercial whitewater guides; and,
with respect to waters designated whitewater zones, (iv) standards
for the number of rafts and number of persons transported in rafts.
(c) The commission shall meet upon the call of the chairperson
or a majority of the members of the commission. However, the
commission shall meet at least quarterly and shall conduct business when a majority of the members are present. At the meetings, the
commission shall review all data, materials and relevant findings
compiled relating to any investigation and study then under
consideration and, as soon as practicable thereafter, the
commission
shall may recommend rules to govern and apply to the
designated whitewater zone(s).
At least annually, the The
commission
shall meet may meet at its discretion for the purpose of
considering and adjusting allocations
. At least annually, the
commission shall and review fees and proposed expenditures.
A
budget shall be approved for each fiscal year for the expenditure
of funds subject to the commission's control. The commission may
not limit the number of commercial whitewater outfitters operating
on rivers not designated as whitewater zones, nor may the
commission limit the number of rafts or total number of persons
transported in rafts by commercial whitewater outfitters on rivers
not designated as whitewater zones. Commission members shall be
reimbursed all reasonable and necessary expenses incurred in the
exercise of their duties.
(d) Special provisions for the New River and the Gauley River:
(1) After the issuance of the Gauley River rafting license
provided for in subdivision (3), subsection (b) of this section, a
moratorium shall be imposed by the commission upon the issuance of
additional commercial rafting licenses on whitewater zones of the
New River between the confluence of the Greenbrier and New rivers and the confluence of the New and Gauley rivers and upon whitewater
zones of the Gauley River from the Summersville Dam to the
confluence of the New and Gauley rivers. The moratorium hereby
imposed shall continue until such time as the commission is
authorized by the legislature to discontinue the moratorium.
(2) For the portions of the Gauley and New rivers
designated
as whitewater zones subject to the moratorium imposed by this
section, the minimum use allocation conferred by a license,
for the
study period established pursuant to subdivision (4), subsection
(b) of this section, is one hundred twenty for
each designated
section of a whitewater zone on the Gauley and one hundred fifty
for
each designated section of a whitewater zone on the New
River.
or an increased minimum allocation established by the board. The
commission is authorized to increase or decrease minimum use
allocations for the moratorium sections of the New and Gauley
rivers only in accordance with the provisions of subdivisions four
and five of this subsection. The commission may permit additional
allocations or licenses for whitewater outfitters which are
nonprofit entities operating upon the waters of the state upon the
effective date of this section.
For other waters designated
whitewater zones, the commission may increase but not decrease
allocations from those in effect on the effective date of this
section.
Except as provided in subdivision (4), subsection (d) of
this section, nothing in this section shall be deemed to require the reduction of a use allocation granted under an existing license
or to prohibit a commercial whitewater outfitter from acquiring a
license with a use allocation in excess of the minimum allocations
hereby established: Provided, That if a licensee has sold, leased
or assigned his license, or sold or leased a portion of the use
allocation under his license, nothing herein shall be deemed to
have the effect of increasing the use allocation assigned to such
license.
(3) The commission may permit peak-day variances from license
limitations not exceeding ten percent of the use allocation granted
under a license. The commission may permit off-peak-day variances
from license limitations not exceeding twenty-five percent of the
use allocation granted under a license.
(4) If, as result of a study employing the limits of
acceptable change process, the whitewater commission acts to reduce
the aggregate maximum daily use limit for all commercial rafting
licenses on a section of the New River or Gauley River subject to
the license moratorium, the reduction shall be distributed on a
pro-rata basis among all licenses granted for the section in
proportion to an individual license's relative share of the total
use allocation for such river section.
(5) If the limits of acceptable change process results in an
increase in the aggregate maximum daily use limit for all
commercial rafting licenses on any section of the New River or Gauley River subject to a moratorium on new licenses, such increase
shall be divided by the total number of commercial rafting licenses
issued for the relevant section of river and the minimum use
allocation for each such license shall be increased by the nearest
whole number resulting from the division.
(6) If any party contracts to purchase a license containing a
use allocation for a moratorium section of the New River or the
Gauley River, or if a licensee has obtained, or in the future shall
obtain additional use allocations for a moratorium section by lease
or purchase from another licensee, the commission shall permit the
transfer of such license rights in accordance with the provisions
of subdivision (10), subsection (b) of this section. Unless the
owners of a license otherwise agree, when two or more licensees
share ownership or control of the use allocation assigned to a
license, any increase or decrease in use allocations which results
from an action of the commission under subdivisions four and five
of this subsection shall be distributed by the commission between
such owners in proportion to their ownership or control of the use
allocation assigned to such license.
(e) In the event the commission determines through an
appropriate study and the limits of acceptable change process that
a whitewater zone or a designated section of a whitewater zone on
waters other than the moratorium sections of the New and Gauley
river requires implementation of use allocations, all whitewater rafting licenses issued for such zone or section thereof shall be
given the same use allocation.
(e)(f) Violation of this section or any rule promulgated
pursuant to this section constitutes a misdemeanor punishable by
the penalties set forth in section twenty-three-d of this article.
(f)(g) The director of the division of natural resources shall
promulgate, pursuant to the provisions of chapter twenty-nine-a of
this code, all rules necessary to effectuate the purposes of this
section and these rules must be approved by the commission. The
division of natural resources shall enforce the provisions of this
section and rules promulgated pursuant to this section, and shall
provide necessary staff and support services to the commission to
effectuate the purposes of this section.
(g)(h) All orders, determinations, rules, permits, grants,
contracts, certificates, licenses, waivers, bonds, authorizations
and privileges which have been issued, made, granted or allowed to
become effective pursuant to any prior enactments of this section
by the governor, the secretary of the department of commerce, labor
and environmental resources, the director of the division of
natural resources, the whitewater advisory board or by a court of
competent jurisdiction, and which are in effect on the effective
date of this section, shall continue in effect according to their
terms until modified, terminated, superseded, set aside or revoked
by the governor, secretary, director or commission pursuant to this section, by a court of competent jurisdiction, or by operation of
law.
20-2-23e. Implementation of allocation methodology.
Other provisions of this article notwithstanding, the
implementation of an allocation methodology
, based upon criteria
identified in a the three-year study of carrying capacity for
the
nonmoratorium whitewater zones of the New, Gauley, Cheat,
Shenandoah and Tygart rivers,
shall be made based upon criteria
identified in existing or future studies of carrying capacity, the
overall economic impact on the state and the safety of the general
public as identified in section twenty-three-a of this article,
shall be made not later than the thirty-first day of December, two
thousand one thousand nine hundred ninety-seven and shall be
implemented at such time as the commission deems appropriate, by
rules promulgated pursuant to chapter twenty-nine-a of this code.
In determining whether to increase or decrease existing use
allocations on the portions of the New and Gauley rivers subjected
to a moratorium on new licenses by this article, the commission may
continue existing studies and undertake new studies of the carrying
capacity of whitewater zones, the quality of the rafting
experience, the economic impact of raft and the safety of the
general public.
CHAPTER 21. LABOR.
ARTICLE 5C. MINIMUM WAGE AND MAXIMUM HOURS STANDARDS FOR EMPLOYEES.
21-5C-1. Definitions.
As used in this article:
(a) "Commissioner" means the commissioner of labor or his duly
authorized representatives.
(b) "Wage and hour director" means the wage and hour director
appointed by the commissioner of labor as chief of the wage and
hour division.
(c) "Wage" means compensation due an employee by reason of his
employment.
(d) "Employ" means to hire or permit to work.
(e) "Employer" includes the State of West Virginia, its
agencies, departments and all its political subdivisions, any
individual, partnership, association, public or private
corporation, or any person or group of persons acting directly or
indirectly in the interest of any employer in relation to an
employee; and who employs during any calendar week six or more
employees as herein defined in any one separate, distinct and
permanent location or business establishment:
Provided, That the
term "employer" shall not include any individual, partnership,
association, corporation, person or group of persons or similar
unit if eighty percent of the persons employed by him are subject
to any federal act relating to minimum wage, maximum hours and
overtime compensation.
(f) "Employee" includes any individual employed by an employer
but shall not include: (1) Any individual employed by the United
States; (2) any individual engaged in the activities of an
educational, charitable, religious, fraternal or nonprofit
organization where the employer-employee relationship does not in
fact exist, or where the services rendered to such organizations
are on a voluntary basis; (3) newsboys, shoeshine boys, golf
caddies, pinboys and pin chasers in bowling lanes; (4) traveling
salesmen and outside salesmen; (5) services performed by an
individual in the employ of his parent, son, daughter or spouse;
(6) any individual employed in a bona fide professional, executive
or administrative capacity; (7) any person whose employment is for
the purpose of on-the-job training; (8) any person having a
physical or mental handicap so severe as to prevent his employment
or employment training in any training or employment facility other
than a nonprofit sheltered workshop; (9) any individual employed in
a boys or girls summer camp; (10) any person sixty-two years of age
or over who receives old-age or survivors benefits from the social
security administration; (11) any individual employed in
agriculture as the word agriculture is defined in the Fair Labor
Standards Act of 1938, as amended; (12) any individual employed as
a fire fighter by the state or agency thereof; (13) ushers in
theaters; (14) any individual employed on a part-time basis who is
a student in any recognized school or college; (15) any individual employed by a local or interurban motorbus carrier; (16) so far as
the maximum hours and overtime compensation provisions of this
article are concerned, any salesman, parts man or mechanic
primarily engaged in selling or servicing automobiles, trailers,
trucks, farm implements, aircraft if employed by a nonmanufacturing
establishment primarily engaged in the business of selling such
vehicles to ultimate purchasers; (17) any employee with respect to
whom the United States department of transportation has statutory
authority to establish qualifications and maximum hours of service;
or (18) any person employed on a per diem basis by the Senate, the
House of Delegates, or the joint committee on government and
finance of the Legislature of West Virginia, other employees of the
Senate or House of Delegates designated by the presiding officer
thereof, and additional employees of the joint committee on
government and finance designated by such joint committee;
or (19)
any person employed as a seasonal employee of a commercial
whitewater outfitter where the seasonal employee works less than
seven months in any one calendar year and, in such case, only for
the limited purpose of exempting the seasonal employee from the
maximum wage provisions of section three of this article.
(g) "Workweek" means a regularly recurring period of one
hundred sixty-eight hours in the form of seven consecutive
twenty-four hour periods, need not coincide with the calendar week,
and may begin any day of the calendar week and any hour of the day.
(h) "Hours worked", in determining for the purposes of sections
two and three of this article, the hours for which an employee is
employed, there shall be excluded any time spent in changing
clothes or washing at the beginning or end of each workday, time
spent in walking, riding or traveling to and from the actual place
of performance of the principal activity or activities which such
employee is employed to perform and activities which are
preliminary to or postliminary to said principal activity or
activities, subject to such exceptions as the commissioner may by
rules and regulations define.
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(Note: The purpose of this bill is to continue to protect and
enhance both the quality of the rafting experience on high demand
sections of the New and Gauley Rivers and to clarify the Whitewater
Commission's authority to increase or reduce use allocations.
This bill provides for the issuance of one additional license
with a minimum use allocation on the Gauley River and then imposes
a moratorium on new licenses on the Gauley River from the
Summersville Dam to Gauley Bridge and on the New River from Hinton
to Gauley Bridge. The bill freezes the minimum use allocations on
existing licenses on these river sections at May 2, 1992 levels to
protect the economic viability of smaller operators and to promote
competition in the industry. The bill also serves to clarify that
certain seasonal employees of the rafting industry are exempt from
overtime wage requirements consistent with wage and hour
classifications defined in federal law.
Strike-throughs indicate existing code language that would be
stricken from the present law, and underscoring indicates new
language that would be added.)
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NATURAL RESOURCES COMMITTEE AMENDMENTS
On page ___, section twenty-three-a, line ___, after the word "guides" by inserting a comma and the words "to monitor the extent
of the crowding conditions on the rivers";
On page ___, section twenty-three-a, lines ___, after the word
"reporting" by striking out the comma and the words "prior to the
departure of any craft,";
And,
On page ___, section twenty-three-a, line ___, after the word
"River." by inserting the following: A licensee who held a use
allocation on the second day of May, one thousand nine hundred
ninety-two, with a use allocation greater than the minimum
allocation established in this subdivision shall retain such use
allocation on each designated section of a whitewater zone on the
moratorium portions of the New and Gauley rivers subject only to
the sale, loss or forfeiture of the license or to a subsequent
action of the commission imposing a reduction in use allocations
pursuant to subdivision (4) of this subsection.