Email: Chapter 5B, Article 1
§5B-1-1. Department of Commerce; office of Secretary of Department of Commerce.
(a) The Secretary of Commerce is the chief executive officer of the department. The Governor shall appoint the secretary, by and with the advice and consent of the Senate, for the term for which the Governor is elected. Any reference in this code to the Bureau of Commerce means the Department of Commerce. Any reference in this code to the Commissioner of the Department of Commerce means the Secretary of Commerce. As used in this article, "secretary" means the Secretary of Commerce and "department" means Department of Commerce.
(b) The department may receive federal funds.
(c) The secretary serves at the will and pleasure of the Governor. The annual salary of the secretary is $90,000.
§5B-1-1a. Marketing and Communications Office.
(a) There is continued in the Department of Commerce the Marketing and Communications Office. The office is created to provide marketing and communications goods and services to other state agencies, departments, units of state or local government or other entity or person.
(b) The office is authorized to charge for goods and services it provides to other state agencies. The Secretary of the Department of Commerce shall approve a fee schedule determining the amounts that may be charged for goods and services provided by the office to other state agencies. At the discretion of and with the approval of the Secretary of the Department of Commerce, the office may also sell partnerships, sponsorships or advertising in its publications, events or promotions to help offset the cost of producing and distributing its products and services.
(c) All moneys collected shall be deposited in a special account in the State Treasury to be known as the Department of Commerce Marketing and Communications Operating Fund. Expenditures from the fund shall be for the operation of the office 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.
(d) Any balance remaining at the end of any fiscal year shall not revert to the General Revenue Fund, but shall remain in the fund for expenditures in accordance with the purposes set forth in this section.
(e) The Department of Commerce shall develop and maintain a system of annual or more frequent performance measures useful in gauging the efficiency and effectiveness of the office's marketing and communications activities. The measures shall also reflect the office's efficiency and effectiveness with respect to commercially available marketing and communications services and any private sector benchmarks which might be identified or created. For the purposes of this section, "performance measures" means income, output, quality, self-sufficiency and outcome metrics.
(f) On January 1 of each year the Secretary of the Department of Commerce shall report to the Joint Committee on Government and Finance, the Joint Standing Committee on Finance and the Joint Commission on Economic Development on the performance of the office. This report is to include a statement of the performance measurements for the office developed by the Secretary of the Department of Commerce and an analysis of the office's performance.
§5B-1-2. Agencies, boards, commissions, divisions and offices comprising the Department of Commerce.
The Department of Commerce consists of the following agencies, boards, commissions, divisions and offices, including all of the allied, advisory, affiliated or related entities, which are incorporated in and administered as part of the Department of Commerce:
(1) Division of Labor provided in article one, chapter twenty-one of this code, which includes:
(A) Occupational Safety and Health Review Commission provided in article three-a, chapter twenty-one of this code; and
(B) Board of Manufactured Housing Construction and Safety provided in article nine, chapter twenty-one of this code;
(2) Office of Miners’ Health, Safety and Training provided in article one, chapter twenty-two-a of this code. The following boards are transferred to the Office of Miners’ Health, Safety and Training for purposes of administrative support and liaison with the Office of the Governor:
(A) Board of Coal Mine Health and Safety and Coal Mine Safety and Technical Review Committee provided in article six, chapter twenty-two-a of this code;
(B) Board of Miner Training, Education and Certification provided in article seven, chapter twenty-two-a of this code; and
(C) Mine Inspectors’ Examining Board provided in article nine, chapter twenty-two-a of this code;
(3) The West Virginia Development Office provided in article two, chapter five-b of this code;
(4) Division of Natural Resources and Natural Resources Commission provided in article one, chapter twenty of this code;
(5) Division of Forestry provided in article one-a, chapter nineteen of this code;
(6) Geological and Economic Survey provided in article two, chapter twenty-nine of this code;
(7) Workforce West Virginia provided in chapter twenty-one-a of this code, which includes:
(A) Division of Unemployment Compensation;
(B) Division of Employment Service;
(C) Division of Workforce Development; and
(D) Division of Research, Information and Analysis;
(8) Division of Energy provided in article two-f, chapter five-b of this code; and
(9) West Virginia Tourism Office and the Tourism Commission provided in article two-i, chapter five-b of this code.
§5B-1-3. Powers and duties of secretary, administrators, division heads and employees.
(a) The secretary controls and supervises the department and is responsible for the work of each department employee.
(b) The secretary has the power and authority specified in this article, in article two, chapter five-f of this code and as otherwise specified in this code.
(c) The secretary may assess agencies, boards, commissions, divisions and offices in the department for the payment of expenses of the office of the secretary.
(d) The secretary may employ professional staff, including, but not limited to, certified public accountants, economists and attorneys, assistants and other employees as necessary for the efficient operation of the department.
(e) The secretary and administrators, division heads and other employees of the department shall perform their duties as specified in this code and as may be prescribed by the Governor.
§5B-1-4. Reports by secretary.
The secretary shall report annually to the Governor concerning the conduct of the department and make other reports as the Governor may require.
§5B-1-5. Delegation of powers and duties by secretary.
The secretary may delegate his or her powers and duties to assistants and employees, but the secretary is responsible for all official acts of the department.
§5B-1-6. Confidentiality of information.
(a) Information provided to secretary under expectation of confidentiality. -- Information that would be confidential under the laws of this state when provided to a division, agency, board, commission or office within the department is confidential when that information is provided to the secretary or an employee in the office of the secretary. The confidential information may be disclosed only: (1) To the applicable agency, board, commission or division of the department to which the information relates; or (2) in the manner authorized by provisions of this code applicable to that agency, board, commission or division. This confidentiality rule is a specific exemption from disclosure under article one, chapter twenty-nine-b of this code.
(b) Interdepartmental communication of confidential information. -- Notwithstanding any provision of this code to the contrary, information that is confidential pursuant to this code in the possession of any division, agency, board, commission or office of the department may be disclosed to the secretary or an employee in the office of the secretary. The secretary or employee shall safeguard the information and may not further disclose the information except under the same conditions, restrictions and limitations applicable to the administrator of the agency, board, commission, division or office of the department in whose hands the information is confidential. This subsection does not require disclosure of individually identifiable health care or other information that is prohibited from disclosure by federal law. This subsection is a specific exemption from the disclosure requirements of article one, chapter twenty-nine-b of this code.
(c) The provisions of this section:
(1) Apply only to information that is actually disclosed by a division, agency, board, commission or office within a department to the secretary, or an employee in the office of the secretary, of that department;
(2) Do not authorize disclosure or exempt from the provisions of article one, chapter twenty-nine-b of this code any confidential information of a division, agency, board, commission or office within a department to any person or entity other than the secretary, or an employee in the office of the secretary, of that department;
(3) Apply only to disclosure between a division, agency, board, commission or office within a department and the secretary, or an employee in the office of the secretary, of that department.
§5B-1-7. Right of appeal from interference with functioning of agency.
Any governmental entity may appeal to the Governor for review upon a showing that application of the secretary's authority may interfere with the successful functioning of that entity. The Governor's decision controls on appeal.
§5B-1-8. Financial assistance for small businesses during state of emergency.
(a) The Department of Commerce is authorized to make short-term, low-interest loans available to small businesses located in counties listed in a state declaration of a state of emergency. The purpose of these loans is to mitigate the effects of business losses resulting from the conditions giving rise to the state of emergency where other forms of compensation or relief are not available.
(b) For purposes of this section, an eligible, small business means a business with less than seventy-five full-time or full-time equivalent employees, operating lawfully within this state and in compliance with the state's tax, unemployment compensation and workers' compensation laws, and which meets the criteria specified by the Department of Commerce by rule for issuance of a loan.
(c) The loan program provided by this section shall only be available when the Governor makes a written finding, following a declaration of a state of emergency by either the Governor or the Legislature, that a substantial portion of small businesses within the relevant counties require emergency financial assistance and authorizes the Department of Commerce to issue loans through this program: Provided, That the authorization also identify an appropriate source of funding for the loans.
(d) Following the Governor's finding and authorization, an eligible, small business may make application for an emergency assistance loan at any time within the duration of a state of emergency, declared pursuant section six, article five, chapter fifteen of this code, and up to ninety days after the termination of the state of emergency. The application shall be made to the division or office designated by the Secretary of Commerce to administer the loan program. Only one loan will be permitted to a business for losses arising out of a declared state of emergency and shall only be available to a business that is located within a county identified in the declaration of the state of emergency. Eligibility provisions of this subsection may apply to any state of emergency, declared by the Governor or the Legislature, that is in effect upon the effective date of this section, but in no event shall loans be made for business losses incurred or originating prior to January 1, 2014.
(e) The source of principal for any loan provided under this section shall be from funds appropriated to the Civil Contingent Fund or from any other appropriation designated for or applicable to the purpose of providing state of emergency loans to small businesses. The principal amount of any loan provided under this section shall not exceed $20,000 and the interest rate of the loan shall be fixed at a rate equal to half of the federal prime interest rate published at the time of execution of a written agreement between the agency and the loan recipient. The period of duration for loans shall be not more than twenty-four months. The provision of loans is subject to the availability of funds and shall not exceed an aggregate amount of $2 million per declared state of emergency, unless a greater amount is authorized by subsequent appropriation of the Legislature.
(f) Payments of interest on loans provided pursuant to this section shall be credited to the general fund of the state. Payments of principal shall be credited back to the source of funding, or if the source of funding has expired, to the general revenue fund of the state.
(g) Loans will only be provided upon execution of a written agreement with the Department of Commerce, or with the authorized designee of the Secretary of Commerce. The duty to repay the principal and pay the interest constitutes a debt to the state. The Secretary of Commerce or his or her designated representative is authorized to enforce, by any legal means, the provisions of the written agreement and to pursue collection of any and all amounts due under the terms of the written agreement and any costs to the state for the collection.
(h) Following the effective date of this section, the Secretary of Commerce shall designate an office or division within the Department of Commerce to administer the loan program and shall, acting through the designated office or division, promulgate emergency rules and propose corresponding legislative rules for consideration and authorization by the legislature to describe and delineate the manner in which application for loans will be submitted and reviewed, the criteria for approval of loan applications, including, but not limited to, the credit history of the applicant, required security and other provisions necessary for the efficient administration of this program.
(i) When the Governor authorizes the Department of Commerce to issue loans hereunder following the declaration of a state of emergency, the Secretary of Commerce shall make a report to the Joint Committee on Government and Finance at the conclusion of each fiscal year in which the loan program is in effect and loans are outstanding, regarding the number of businesses that have applied for loans, the number of loans approved, the amounts awarded, the number of employees affected thereby and a financial statement including the balance of funds available and the aggregate amount of principal and interest outstanding and due to the state.