HB 4210 Text

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."

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