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Email: Chapter 5B

§5B-1-10. West Virginia Health Care Workforce Sustainability Study.

(a) As used in this section, the following words and terms have the following meanings:

(1) “Continuum of Care” means the following health care providers or facilities, singularly or consecutively, that provide care for an individual:

(A) Assisted Living residence, as regulated and defined by §16-5D-1 et seq. of this code;

(B) Behavioral Health service, as defined by §16-2D-2(7) of this code;

(C) Hospice, as regulated and defined by §16-5I-1 et seq. of this code;

(D) Hospitals, as regulated and defined by §16-5B-1 et seq. of this code;

(E) Home Health agency, as regulated and defined by §16-2C-1 et seq. of this code;

(F) Skilled Nursing Facility/Nursing Home, as regulated and defined by §16-5C-1 et seq. of this code; and

(G) Emergency Medical Service Agency, as defined by §16-4C-1 et seq. of this code.

(2) “Department” means the Department of Commerce, including any and all agencies 11 within the Department of Commerce.

(3) “Direct-care status” means health care providers that for the majority of time deliver care or services to individuals in such a manner that the provider could be personally identifiable by the recipient of services.

(4) “Entity” means an individual, partnership, corporation, or other legal entity that employs or plans to employ skilled workers.

(5) “Government agency” means any state, county, municipal, or local public agency, board, committee, or division, including educational, vocational, and technical schools.

(6) “Health care facility” means a publicly or privately owned facility, agency, or entity that offers or provides health services, whether a for-profit or nonprofit entity and whether or not licensed, or required to be licensed, in whole or in part.

(7) “Health care provider” means a person authorized by law to provide professional health services in this state to an individual.

(8) “Health services” means clinically related preventive, diagnostic, treatment, or rehabilitative services.

(9) “Indirect-care status” means health care providers that for the majority of time perform managerial or administrative functions and are not in direct contact with consumers of care.

(10) “New graduate employee” means a health care provider within 18 months of graduation from a program qualifying the individual as a health care provider.

(11) “Private third-party” means an individual, partnership, corporation, or other legal entity that employs or plans to employ skilled workers in the workforce or that teaches, trains, certifies, or provides licensure for individuals in the workforce.

(12) “Report” means the report required to be completed and issued by the Secretary pursuant to this article.

(13) “Secretary” means the Secretary of the Department of Commerce.

(14) “Separations” means the number of full-time or part-time employees leaving an entity voluntarily or involuntarily excluding per diem, contract, agency, or traveling health care professionals.

(15) “Workforce” means an individual employed by an entity within the continuum of care.

(b) On or before February 1, 2021, the Secretary shall research, survey, study, and issue a public report on the existing workforce in the continuum of care, as well as the anticipated future workforce needs over the next 15 years.

(c) In addition to being made publicly available, the completed report shall be provided to the Legislative Oversight Commission on Health and Human Resources Accountability (LOCHHRA), created pursuant to §16-29E-1 et seq. of this code.

 (d) In order to create the report required in this section in the most cost-effective and efficient manner, the Secretary may seek or obtain grants to facilitate the research, survey, and study; may enter into agreements with other governmental agencies, committees, research divisions, including educational institutions, for the collection and analysis of information; and may contract with private persons or companies: Provided, That any and all agreements, grants, or contracts for the assistance or sharing of information shall include confidentiality provisions consistent with the provisions of this section.

 (e) The findings in the report shall summarize the data collected utilizing the categories and professions contained in this section. In presenting the findings, the report shall also break down its summaries on a statewide, regional, and county basis.

 (f) The report, or any other disclosure of collected data, shall not identify specific entities, providers, or facilities, nor make specific correlation between an entity, provider, or facility and the workforce numbers at that entity, provider, or facility.

 (g) To facilitate the timely collection and accuracy of data, the department is expressly authorized to seek, and specifically request, information from any entity, government agency, health care provider, health care facility, or private third-party: Provided, That the department shall only request information reasonably designed to elicit the information that is sought by this section, and in a manner intended to minimize obstruction to the requested entities providing necessary health services. Any entity, government agency, heath care provider, health care facility, or private third-party in receipt of a survey or request for information from the department shall comply with the request and provide any and all requested information pertinent to the research, survey, and study.

(h) The department shall research, survey, and study the following aspects of the continuum of care workforce:

(1) The number of individuals employed;

(2) The number of full-time and part-time individuals so employed;

(3) The number of contract, agency, or traveling nurse or specialists utilized;

(4) The number of vacancies;

(5) The number of employee separations;

(6) The number of new graduate employee separations;

(7) The average number of patients/residents treated at each entity;

(8) The overall number of individuals licensed, certified, or registered by the state to work in the health care continuum;

(9) The current rate of licensure, certification, or registration by the state to work in the health care continuum;

(10) The anticipated growth in the number of individuals that will be licensed, certified, or registered in the state to work in the continuum of care over the next 15 years;

(11) The availability of classes or courses offered by secondary, vocational, technical, community, and higher education schools or institutions to train those necessitating licensure, certification, or registration to work in the health care continuum; and

(12) The average number of graduates per year in those classes or courses offered to train those necessitating licensure, certification, or registration to work in the health care continuum.

(i) In collecting and reporting the data, the department shall utilize, at a minimum, the following categories and professions within the continuum of care:

(1) Categories of entities:

(i) Assisted Living;

(ii) Behavioral Health;

(iii) Hospice;

(iv) Hospital;

(v) Home Health;

(vi) Skilled Nursing Facility/Nursing Home; and

(vii) Emergency Medical Service Agency.

(2) Job Professions delineated by direct-care or indirect-care status:

(i) Physician (M.D./D.O.) by specialty;

(ii) Physician Assistant;

(iii) Advanced Practice Registered Nurse by role and certification;

(iv) Registered Nurse;

(v) Licensed Professional Nurse;

(vi) Nurse Aide;

(vii) Medical Assistant;

(viii) Dietician;

(ix) Social Worker;

(x) Physical Therapist;

(xi) Physical Therapy Assistant;

(xii) Occupational Therapist;

(xiii) Occupational Therapy Assistant;

(xiv) Speech Therapist;

(xv) Respiratory Therapist;

(xvi) Psychologist;

(xvii) MDS/coding specialist;

(xviii) Pharmacist;

(xix) Pharmacy Technician;

(xx) Radiologic Technologist; and

(xxi) Emergency Medical Service Personnel.

(j) Any material, data, or other writing made or received by the department for the purpose of conducting the research, survey, study, or report, is deemed to be confidential trade secrets which are exempt from disclosure under the provisions of §29B-1-4 of this code.

CHAPTER 5B. ECONOMIC DEVELOPMENT ACT OF 1985.
ARTICLE 1. DEPARTMENT OF COMMERCE.

§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.

ARTICLE 1A. WEST VIRGINIA RAILS TO TRAILS PROGRAM.

§5B-1A-1. Purpose.

The Legislature hereby declares that the long-term value to the public of retaining networks of abandoned railroad corridor lines is substantial, not only for the preservation of corridors for future rail transportation uses, but in terms of providing interim recreational use, providing public open space and linking together other community areas and recreational spaces, providing for efficient and convenient placement of underground utilities and telecommunication lines, providing environmental greenways and wildlife habitat, providing public access to other forms of recreation and improving economic development opportunities associated with all of the above listed multiple uses.

§5B-1A-2. Rails to trails program.

There is continued within the state rail authority provided for in article eighteen, chapter twenty-nine of this code the “West Virginia Rails to Trails Program,” the purpose of which is to acquire or assist with the acquisition of, and to develop or assist with the development of, abandoned railroad rights-of-way for interim use as public nonmotorized recreational trails.

§5B-1A-3. Definitions.

(1) “Abandoned railroad rights-of-way” means land on which discontinuance of rail service has been authorized by the interstate commerce commission.

(2) “Division” means the Division of Tourism and parks.

(3) “Nonmotorized recreational trail use” means bicycle, hiking, cross-country skiing, horseback riding, horse drawn wagon, jogging or other similar activities.

(4) “Rail bank” means the holding intact of an abandoned railroad right-of-way for future railroad service.

(5) “Rail trail” means an abandoned railroad right-of-way utilized in the interim as a public nonmotorized recreational trail.

§5B-1A-4. Powers and duties of the authority.

The state rail authority is authorized to:

(1) Enter into agreements with any person on behalf of the state to acquire an interest in any abandoned railroad right-of-way, to develop, maintain or promote any rail trails created pursuant to the provisions of this article and, with the consent of the director of the Division of Natural Resources, to transfer the maintenance and operation of rail trails created and developed to the Division of Natural Resources.

(2) Assist any political subdivision or any person in acquiring an interest in any abandoned railroad right-of-way and in developing, maintaining or promoting rail trails.

(3) Evaluate existing and potential abandoned railroad rights-of-way so as to identify such lands as may be suitable for nonmotorized recreational trail use.

(4) Establish state rail trails, subject to the limitations on acquisition of land for state recreational facilities as set forth in section twenty, article one, chapter twenty of this code.

§5B-1A-5. Powers to hold and acquire real property.

(a) The state rail authority shall hold fee simple title or any lesser interest in land, including easements and leaseholds, on all abandoned railroad rights-of-way acquired by the state and utilized for interim nonmotorized recreational trail use pursuant to the provisions of this article. The state rail authority may, at the option of a political subdivision of this state, hold fee simple title or any lesser interest in land, including easements and leaseholds, on all abandoned railroad rights-of-way acquired by such political subdivision and utilized for interim nonmotorized recreational trail use. Any provision of article one-a, chapter twenty of this code to the contrary notwithstanding, the public land corporation shall not be vested with title to any abandoned railroad right-of-way which becomes vested in the state pursuant to the provisions of this article.

(b) The state rail authority may acquire an interest in an abandoned railroad right-of-way to be used as a rail trail, in accordance with the provisions of section six, article eighteen, chapter twenty-nine of this code.

(c) The state rail authority shall issue a rail bank certificate for each abandoned railroad right-of-way held by the state rail authority for interim nonmotorized recreational purposes in accordance with the provisions of section six of this article.

§5B-1A-6. Abandoned rights-of-way owned by the state prior to effective date of article.

(a) No abandoned railroad right-of-way acquired by the state prior to the effective date of this article and used as a rail trail may be used for any purpose that would unreasonably limit the ability to restore rail service over the right-of-way if such service were to be required in the future.

(b) Any and all abandoned railroad rights-of-way acquired by the state prior to the effective date of this article are hereby declared held for railroad transportation purposes as of the date of acquisition, until, by executive order of the Governor, the right-of-way is declared no longer suitable for a public transportation purpose as a railroad right-of-way. Such abandoned railroad rights-of-way shall not revert by operation of law to any other ownership while being held for future railroad use in accordance with the provisions of this article.

§5B-1A-7. Railroad rights-of-way preservation.

(a) Upon receipt of a notice to abandon a railroad right-of-way by the owner thereof, the commissioner may enter into an agreement with the owners of the railroad right-of-way to preserve intact the railroad right-of-way for a period of time not to exceed three months to afford the state sufficient time to evaluate the potential for use by the state for the purposes of this article, and the funds available for acquisition.

(b) With regard to any land or an interest therein actually acquired by the state pursuant to the provisions of this article:

(1) Every specifically identified railroad right-of-way, including all bridges still in place, shall remain intact except for necessary modifications required to adapt the right-of-way for use as a nonmotorized recreational trail, except for where it is necessary for a motorized vehicle to cross the trail;

(2) Any abandoned railroad right-of-way shall be used solely for nonmotorized recreational purposes, subject to such right-of-way being made available for future rail use, if necessary; and

(3) Any abandoned railroad right-of-way acquired by the state pursuant to the provisions of this article shall be deemed to be held for railroad use and in continuation of the railroad easement and shall not revert by operation of law to any other ownership during the term of the agreement or during the term of a rail bank certificate issued pursuant to section five of this article.

§5B-1A-8. Limitation on liability of owner from whom state acquires land or interest therein.

During the interim period when an abandoned railroad right-of-way is held by the state for possible future railroad use, the owner of the railroad right-of-way from whom the state acquired the land or an interest therein is relieved from civil liability for any personal injury or property damage occurring on the right-of-way during such interim period, which might otherwise arise from ownership.

§5B-1A-9. Limitation on liability of persons making land available for trail use without charge.

(a) General rule. -- Except as specifically recognized or provided in subsection (d) of this section, an owner or lessee who provides the public with land for use as a trail under this article or who owns land adjoining any trail developed under this article owes no duty of care to keep the land safe for entry or use by others for recreational purposes, or to give any warning to persons entering or going on the trail or adjoining land of a dangerous condition, use, structure or activity thereon.

(b) Owner. -- Any person, public agency or corporation owning an interest in land utilized for recreational trail purposes pursuant to this article shall be treated as an "owner" for purposes of this article.

(c) Specific limitations on liability. -- Except as specifically recognized by or provided in subsection (d) of this section, an owner or lessee who provides the public with land or who owns adjoining land to the trail under this article is not, by providing that trail or land or owning land adjoining the trail:

(1) Presumed to extend any assurance that the land is safe for any purpose;

(2) Incur any duty of care toward a person who goes on that land; or

(3) Become liable for any injury to persons or property caused by an act or an act of omission of a person who goes on that land.

(d) Exception. --

(1) This section does not apply to the owner or lessee of the land used as a trail if there is any charge made or usually made for entering or using the trail or land, or any part thereof.

(2) This section does not apply to the owner of land adjoining a trail if there is any charge made or usually made by the owner of such adjoining land for using the trail or land, or any part thereof, or if any commercial or other activity relating to the use of the trail whereby profit is derived from the patronage of the general public is conducted on such adjoining land, or on any part thereof.

(3) The foregoing applies whether the person going on the land provided or adjoining is an invitee, licensee, trespasser or otherwise.

(e) This article does not relieve any person of liability which would otherwise exist for deliberate, willful or malicious injury to persons or property. The provisions of this article do not create or increase the liability of any person.

ARTICLE 2. WEST VIRGINIA DEVELOPMENT OFFICE.

§5B-2-1. West Virginia Development Office; confidentiality.

The Governor's office of community and industrial development is hereby continued but is hereafter designated and shall be known as the West Virginia Development Office. All references in this code to the office of community and industrial development or the Governor's office of community and industrial development shall be construed as references to the West Virginia Development Office.

Any documentary material, data or other writing made or received by the West Virginia Development Office or other public body, whose primary responsibility is economic development, for the purpose of furnishing assistance to a new or existing business shall be exempt from the provisions of article one, chapter twenty-nine-b of this code: Provided, That any agreement entered into or signed by the Development Office or public body which obligates public funds shall be subject to inspection and copying pursuant to the provisions of said article as of the date the agreement is entered into, signed or otherwise made public.

§5B-2-2. Appointment and compensation of the Executive Director of the West Virginia Development Office.

(a) The Governor shall appoint the Executive Director of the West Virginia Development Office who is qualified for the position by reason of his or her extensive education and experience in the field of professional economic development. The executive director serves at the will and pleasure of the Governor. The executive director shall have overall management responsibility and administrative control and supervision within the West Virginia Development Office. It is the intention of the Legislature that the executive director provide professional and technical expertise in the field of professional economic and tourism development. Subject to the provisions of the contract provided in section four of this article, the executive director may hire and fire economic development representatives employed pursuant to the provisions of section five of this article.

(b) The Executive Director of the West Virginia Development Office may promulgate rules to carry out the purposes and programs of the West Virginia Development Office to include generally the programs available and the procedure and eligibility of applications relating to assistance under the programs. These rules are not subject to the provisions of chapter twenty-nine-a of this code, but shall be filed with the Secretary of State. The executive director may adopt any of the rules previously promulgated by the council for community and economic development.

§5B-2-3. Powers and duties of the executive director.

The executive director shall enhance economic growth and development through the development of a comprehensive economic development strategy for West Virginia. "Comprehensive economic development strategy" means a plan that outlines strategies and activities designed to continue, diversify or expand the economic base of the state as a whole; create jobs; develop a highly skilled workforce; facilitate business access to capital, including venture capital; advertise and market the resources offered by the state with respect to the needs of business and industry; facilitate cooperation among local, regional and private economic development enterprises; improve infrastructure on a state, regional and community level; improve the business climate generally; and leverage funding from sources other than the state, including federal and private sources.

§5B-2-3a.

Repealed.

Acts, 2015 Reg. Sess., Ch. 40.

§5B-2-3b. Development office promotion fund.

There is hereby established in the state Treasury a special revenue fund known as the "Development Office promotion fund." Moneys deposited in this fund shall be administered by the Development Office and used solely to promote business formation, expansion, recruitment and retention through aggressive marketing and international development and export assistance, which together lead to more and better jobs with higher wages for all geographic regions and communities of the state, including rural areas and urban core areas, and for all residents, including minorities.

§5B-2-4. Public-private partnerships.

The West Virginia Development Office is authorized to enter into contractual or joint venture agreements with a nonprofit corporation organized pursuant to the corporate laws of the state, organized to permit qualification pursuant to section 501(c) of the Internal Revenue Code and for purposes of the economic development of West Virginia, and funded from sources other than the state. The contract shall include provisions relating to the employment of economic development representatives assigned to the West Virginia Development Office to be paid a base salary by the state and performance-based economic incentives from private funds of the nonprofit corporation. Provisions relating to hiring practices with respect to economic development representatives, job descriptions, accountability, public-private liaison and performance standards may be the subject of contract negotiations. The contract shall include provision for continuing education and certification in the field of economic or industrial development for persons employed as economic development representatives. Agreements providing for the payment of performance-based incentives to the Executive Director of the West Virginia Development Office are authorized. Agreements providing for the payment of travel and expenses to the Executive Director of the West Virginia Development Office or to economic development representatives from private funds by the nonprofit corporation are authorized. The prohibitions of subdivisions (b) and (d), section five, article two, chapter six-b of this code are not applicable to the receipt by economic development representatives or by the executive director of performance-based incentives and other payments made by the nonprofit corporation and specifically authorized pursuant to this section.

From time to time the executive director may enter into joint ventures wherein the West Virginia Development Office and the nonprofit corporation share in the development and funding of economic development programs.

All contracts and joint venture agreements must be approved by the executive director. Contracts entered into pursuant to this section for longer than one fiscal year shall contain, in substance, a provision that the contract shall be considered cancelled without further obligation on the part of the state if the State Legislature or, where appropriate, the federal government, shall fail to appropriate sufficient funds therefor or shall act to impair the contract or cause it to be cancelled.

§5B-2-4a. State allocation to regional councils.

The West Virginia Development Office may enter into contractual agreements with the regional councils formed under the provisions of section five, article twenty-five, chapter eight of this code to provide funding to the regional councils to be used to obtain federal matching grants and for other purposes determined to be appropriate by the Development Office. The maximum state allocation to each eligible regional council shall be $40,000: Provided, That the amount of the allocation shall be determined by dividing the number of eligible regional councils into the total amount of funds made available for allocation by the Legislature. The West Virginia Development Office shall develop criteria to determine a regional council's eligibility for the state allocation.

§5B-2-5.  Economic development representatives.

(a) The executive director may employ economic development representatives to be paid a base salary within legislative appropriations to the West Virginia Development Office, subject to applicable contract provisions pursuant to section four of this article.  Economic development representatives may receive performance-based incentives and expenses paid from private funds from a nonprofit corporation contracting with the West Virginia Development Office pursuant to the provisions of section four of this article.  The executive director shall establish job descriptions and responsibilities of economic development representatives, subject to the provisions of any contract with a nonprofit corporation entered into pursuant to section four of this article.

(b) Notwithstanding any provision of this code to the contrary, economic development representatives employed within the West Virginia Development Office are not subject to the procedures and protections provided by articles six and six-a, chapter twenty-nine of this code.  Any employee of the West Virginia Development Office on the effective date of this article who applies for employment as an economic development representative is not entitled to the protections of article six, chapter twenty-nine with respect to hiring procedures and qualifications; and upon accepting employment as an economic development representative, the employee relinquishes the protections provided for in article two, chapter six-c and article six, chapter twenty-nine of this code.

(c) On the last Monday in January, in years 2017, 2019 and 2021, the executive director shall submit to the Legislature a written report.  The executive director shall provide copies of his or her report to the President of the Senate, the Speaker of the House of Delegates, the chair of the Senate Committee on Economic Development and the chair of the House Committee on Small Business, Entrepreneurship and Economic Development.  The executive director’s report shall do the following:

(1) Identify and describe loans, grants or other funding sources that economic development representatives have assisted small businesses acquire during the immediately preceding reporting cycle;

(2) Identify and describe generally inquiries, requests for assistance or other matters that other state or federal agencies have presented to the West Virginia Development Office in the immediately preceding reporting cycle in connection with those agencies’ efforts to regulate or assist small businesses;

(3) Identify and describe issues with formation, registration and licensure requirements that state law imposes on small businesses that small businesses have identified to the West Virginia Development Office in the immediately preceding reporting cycle as burdensome;

(4) Identify specific forms, processes or requirements imposed by state law that small businesses have identified to the West Virginia Development Office in the immediately preceding reporting cycle that may be streamlined, simplified, combined or eliminated in order to reduce unnecessary costs, delays or other burdens on small businesses;

(5) Propose and describe concrete and specific steps that any branch, agency or level of state government may take to streamline, simplify, combine or eliminate the forms, processes or requirements identified in subdivision (4) of this subsection; and

(6) Provide the following information:

(A) The number of small businesses counseled by the West Virginia Development Office during the immediately preceding reporting cycle;

(B) The number of new businesses created while being counseled by the West Virginia Development Office during the immediately preceding reporting cycle;

(C) The number of jobs created by businesses counseled by the West Virginia Development Office during the immediately preceding reporting cycle; and

(D) Any other information that, in the opinion of the executive director, demonstrates the performance of the West Virginia Development Office or economic development representatives during the immediately preceding reporting cycle.

§5B-2-6. Transition; savings provision.

All programs, orders, determinations, rules, permits, grants, contracts, certificates, bonds, authorizations and privileges which have been issued, made, granted or allowed to become effective pursuant to any prior enactments of this article or by the Governor, the Governor's Office of Community and Industrial Development or its director, or by a court of competent jurisdiction, and which are in effect on February 1, 1992, shall continue in effect according to their terms until modified, terminated, superseded, set aside or revoked by the Governor or the Executive Director of the West Virginia Development Office pursuant to this article, by a court of competent jurisdiction or by operation of law.

§5B-2-6a. Brownfield economic development districts; applications; fees; rules.

(a) Any property owner of a tract of land that is a brownfield or voluntary remediated site pursuant to article twenty-two, chapter twenty-two of this code may, if the site and surrounding area were involved in the extraction and processing of coal, limestone or other natural resources, apply to the Development Office to become a brownfield economic development district.

(1) Applicants for a brownfield economic development district must demonstrate that the district when designated will create significant economic development activity;

(2) Applicants shall submit a development plan that provides specific details on proposed financial investment, direct and indirect jobs to be created and the viability of the district;

(3) Brownfield economic development districts:

(A) May not contain single-family housing;

(B) Shall provide all the infrastructure within the district without cost to the state, county, public service district or local municipal government;

(4) Applicants shall demonstrate that were it not for this designation, the contemplated development would not be possible and that the development is in the best interest of the state;

(5) The applicant shall own or control the property within the district;

(6) All costs for the application process shall be borne by the applicant;

(7) An applicant shall demonstrate that the applicant has attempted to work in good faith with local officials in regard to land-use issues;

(8) Beginning July 1, 2011, an application for a brownfield economic development district may not be approved unless the district conforms to a county's or municipality's planning and zoning laws established pursuant to the provisions of article seven, eight and nine, of chapter eight-a of this code.

(9) Prior to granting a designation of brownfield economic development district, the applicant shall provide documentation that the applicant has met all the requirements set forth in article twenty-two, chapter twenty-two of this code to be designated as a brownfield site or voluntary remediated site and is in compliance with the remediation plan;

(10) Nothing may be construed by this section to exempt brownfield economic districts from environmental regulation that would pertain to the development;

(11) The decision of the development office in regard to an application is final; and

(12) Once designated, the district shall work in conjunction with the regional brownfield assistance centers of Marshall University and West Virginia University as specified in section seven, article eleven, chapter eighteen-b of this code.(b) The development office shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code to implement this section and the rules shall include, but not be limited to, the application and time line process, notice provisions, additional application consideration criteria and application fees sufficient to cover the costs of the consideration of an application. The development office shall promulgate emergency rules pursuant to the provisions of section fifteen, article three, chapter twenty-nine-a of this code by October 1, 2008, to facilitate the initial implementation of this section.

§5B-2-6b.

Repealed.

Acts, 1992 Reg. Sess., Ch. 55.

§5B-2-6c.

Repealed.

Acts, 1992 Reg. Sess., Ch. 55.

§5B-2-6d.

Repealed.

Acts, 1992 Reg. Sess., Ch. 55.

§5B-2-6e.

Repealed.

Acts, 1992 Reg. Sess., Ch. 55.

§5B-2-7.

Repealed.

Acts, 2015 Reg. Sess., Ch. 40.

§5B-2-8

Repealed

Acts, 2017 Reg. Sess., Ch. 238.

§5B-2-8a

Repealed

Acts, 2017 Reg. Sess., Ch. 238.

§5B-2-9

Repealed

Acts, 2017 Reg. Sess., Ch. 238.

§5B-2-9a.  Powers and duties of Commissioner of the Division of Tourism and Tourism Commission for improving Cardinal Passenger Train Service; declaration of public policy and Legislative intent.

(a) It is hereby declared the public policy of the State of West Virginia and the intent of the Legislature to facilitate, advance and improve the availability of interstate passenger rail service to the state, the contributions of such service to local tourism development including the Boy Scouts of America Summit Bechtel Reserve in Fayette County, the marketing of such services for both interstate rail travel for the benefit of the state’s citizens, businesses and local tourism and to improve the quality and frequency of such service, including the provision of a daily passenger train service at the earliest opportunity, of the Cardinal Passenger Train operated by the National Railroad Passenger Corporation, doing business as AMTRAK, on railroad lines crossing the south-central region of the state from Huntington eastward to White Sulphur Springs, being that same route historically and continuously used by the passenger train and its predecessors since the year 1871.  

(b) Notwithstanding any other provision of this code to the contrary, the Commissioner of the Division of Tourism, with the advice of the tourism commission, and under the supervision of the Secretary of the West Virginia Department of Commerce, is authorized and directed to coordinate and supervise the activities of the state, to coordinate and cooperate with the political subdivisions and municipalities of the state, to cooperate with the National Railroad Passenger Corporation and with the other states served by the Cardinal Passenger Train to achieve the public policy set forth in subsection (a) of this section. The commissioner is authorized to conduct such studies, and make such investigations, as may be reasonable and appropriate to advance the public policy set forth in subsection (a) of this section.

(c) The commissioner is hereby authorized to enter into contracts and memoranda of understanding with the National Railroad Passenger Corporation, with the other states served by the Cardinal Passenger Train, and with the political subdivisions and municipalities of this state, to achieve the public policy set forth in subsection (a) of this section. The commissioner is further authorized to cooperate with the aforesaid other states and National Railroad Passenger Corporation in the formation of an interstate committee for the purpose of achieving the public policy set forth in subsection (a) of this section, to participate in said committee and appoint other designees thereto.

(d)  In the exercise of their powers and duties under this section, the commissioner and tourism commission shall consult with the West Virginia Department of Transportation and the West Virginia State Rail Authority.  The West Virginia Department of Transportation and the West Virginia State Rail Authority shall cooperate with the commissioner and the tourism commission, and shall provide the commissioner and tourism commission with such reasonable and necessary assistance as may be possible based on available staff and funds to achieve the public policy set forth in subsection (a) of this section.

(e) There is hereby created a special revenue account, designated the “Cardinal Passenger Train Enhancement Fund” into which all moneys intended to advance the purposes of this section shall be deposited.  Moneys in this account shall be expended solely for the public policy and purposes set forth in this section.  Funds paid into this account may also be derived from the following sources: (1) All interest or return on investment accruing to this account; (2) any gifts, grants, bequests, transfers, appropriations or other donations which may be received from any governmental entity or unit or any person, firm, foundation, or corporation; and (3) any appropriations by the Legislature which may be made for the purposes of this section.  Any balance including accrued interest and other earnings at the end of any fiscal year shall not revert to the general fund but shall remain in the fund for the purposes set forth in this section.  The moneys in the fund shall be paid out, at the sole discretion and direction of the commissioner, to advance the purposes of this section.

§5B-2-10. Program and policy action statement; submission to joint committee on government and finance.

The tourism commission, the West Virginia Development Office and any other authorities, boards, commissions, corporations or other entities created or amended under this chapter and article eleven, chapter eighteen-b of this code, shall prepare and submit to the Joint Committee on Government and Finance on or before December 1, 1995, and each year thereafter, a program and policy action statement which shall outline in specific detail according to the purpose, powers and duties of the office or section, its procedure, plan and program to be used in accomplishing its goals and duties as required under this article.

§5B-2-11

Repealed

Acts, 2017 Reg. Sess., Ch. 238.

§5B-2-12

Repealed

Acts, 2017 Reg. Sess., Ch. 238.

§5B-2-12a

Repealed

Acts, 2017 Reg. Sess., Ch. 238.

§5B-2-13.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

§5B-2-14. Certified development community program.

The certified development community program is continued and is transferred to, incorporated in and administered as a program of the West Virginia Development Office. The program shall provide funding assistance to the participating economic development corporations or authorities through a matching grant program. The West Virginia Development Office shall establish criteria for awarding matching grants to the corporations or authorities within the limits of funds appropriated by the Legislature for the program. The matching grants to eligible corporations or authorities are in the amount of $30,000 for each fiscal year, if sufficient funds are appropriated by the Legislature. The West Virginia Development Office shall recognize existing county, regional or multicounty corporations or authorities where appropriate.

In developing its plan, the West Virginia Development Office shall consider resources and technical support available through other agencies, both public and private, including, but not limited to, the state college and university systems; the West Virginia Housing Development Fund; the West Virginia Economic Development Authority; the West Virginia Parkways, Economic Development and Tourism Authority; the West Virginia Round Table; the West Virginia Chamber of Commerce; Regional Planning and Development Councils; Regional Partnership for Progress Councils; and state appropriations.

§5B-2-15. Upper Kanawha Valley Resiliency and Revitalization Program.

(a) Definitions. —

(1) General. — Terms defined in this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by either the context in which the term is used, or by specific definition in this section.

(2) Terms Defined. —

(A) "Contributing partners" means those entities or their representatives described in subsection (f) of this section.

(B) "Prioritize" means, with regard to resources, planning, and technical assistance, that the members of the revitalization council are required to waive their discretionary program guidelines to allow funding requests that may fall outside of the program’s guidelines but address the Upper Kanawha Valley communities" goals for revitalization: Provided, That properly filed funding applications by Upper Kanawha Valley communities shall be given preferential treatment.

(C) "Program" means the Upper Kanawha Valley Resiliency and Revitalization Program established in this section.

(D) "Revitalization council" means those entities or their representatives described in subsection (d) of this section.

(E) "Technical assistance" means resources provided by the state, revitalization council, contributing partners, or any other individuals or entities providing programming, funding, or other support to benefit the Upper Kanawha Valley under the program.

(F) "Upper Kanawha Valley" means an area historically known as the Upper Kanawha Valley including municipalities and surrounding areas from the Charleston city limits to Gauley Bridge or other communities in the vicinity of the West Virginia University Institute of Technology.

(G) "Upper Kanawha Valley Resiliency and Revitalization Program" means the entire process undertaken to further the goals of this section, including collaboration development and implementation between the members, contributors, and technical assistance resource providers.

(b) Legislative purpose, findings, and intent. —

(1) The decision to relocate the historic campus of the West Virginia University Institute of Technology from Montgomery, West Virginia, to Beckley, West Virginia, will have a dramatic economic impact on the Upper Kanawha Valley.

(2) The purpose of this section is to establish the Upper Kanawha Valley Resiliency and Revitalization Program. To further this purpose, this program creates a collaboration among state government, higher education, and private and nonprofit sectors to streamline technical assistance capacity, existing services, and other resources to facilitate community revitalization in the Upper Kanawha Valley.

(3) It is the intent of the Legislature to identify existing state resources that can be prioritized to support the Upper Kanawha Valley, generate thoughtful and responsible ideas to mitigate the negative effects of the departure of the West Virginia Institute of Technology from the Upper Kanawha Valley, and help chart a new course and prosperous future for the Upper Kanawha Valley.

(c) Upper Kanawha Valley Resiliency and Revitalization Program established; duration of program. —

(1) The Development Office shall establish the Upper Kanawha Valley Resiliency and Revitalization Program in accordance with the provisions of this section. The program shall inventory existing assets and resources, prioritize planning and technical assistance, and determine such other assistance as might be available to revitalize communities in the Upper Kanawha Valley.

(2) The program shall remain active until it concludes its work on June 30, 2024, and delivers a final report to the Joint Committee on Government and Finance no later than October 1, 2024.

(d) Revitalization council created. — There is hereby created a revitalization council to fulfill the purposes of this section. The revitalization council shall be coordinated by the Development Office in the Department of Commerce and be subject to oversight by the secretary of the department. The following entities shall serve as members of the revitalization council:

(1) The Executive Director of the Development Office or their designee, who shall serve as chairperson of the council;

(2) The Secretary of the Department of Health and Human Resources or their designee;

(3) The Commissioner of the Department of Agriculture or their designee;

(4) The Executive Director of the West Virginia Housing Development Fund or their designee;

(5) A representative from the Kanawha County Commission;

(6) A representative from the Fayette County Commission;

(7) The mayor, or their designee, from the municipalities of Montgomery, Smithers, Pratt, and Gauley Bridge;

(8) A representative from Bridge Valley Community and Technical College; and

(9) A representative from West Virginia University.

(e) Duties of the revitalization council. —

(1) The council shall identify existing state resources that can be prioritized to support economic development efforts in the Upper Kanawha Valley.

(2) The council shall direct existing resources in a unified effort and in conjunction with contributing partners, as applicable, to support the Upper Kanawha Valley.

(3) The council shall develop a rapid response strategy to attract or develop new enterprises and job-creating opportunities in the Upper Kanawha Valley.

(4) The council shall conduct or commission a comprehensive assessment of assets available at the campus of the West Virginia Institute of Technology and determine how those assets will be preserved and repurposed.

(5) The council shall assist communities in the Upper Kanawha Valley by developing an economic plan to diversify and advance the community.

(6) Members of the council shall support both the planning and implementation for the program and shall give priority wherever possible to programmatic activity and discretionary, noncompetitive funding during the period the program remains in effect.

(7) Members of the council shall work together to leverage funding or other agency resources to benefit efforts to revitalize the Upper Kanawha Valley.

(f) Contributing partners. — To the extent possible, the revitalization council shall incorporate the resources and expertise of additional providers of technical assistance to support the program, which shall include but not be limited to:

(1) The West Virginia Small Business Development Center;

(2) The Center for Rural Health Development;

(3) The West Virginia University Brickstreet Center for Entrepreneurship;

(4) The West Virginia University Land Use and Sustainability Law Clinic;

(5) The West Virginia University Center for Big Ideas;

(6) The New River Gorge Regional Development Authority;

(7) The Appalachian Transportation Institute;

(8) The Marshall University Center for Business and Economic Research;

(9) TechConnect;

(10) The West Virginia Community Development Hub;

(11) The West Virginia University Northern Brownfields Assistance Center;

(12) West Virginia State University Extension Service; and

(13) West Virginia University Extension Service, Community, Economic and Workforce Development.

(g) Reporting and agency accountability. — The revitalization council, in coordination with its contributing partners, as applicable, shall report annually to the Governor and the Legislature detailing the progress of the technical assistance support provided by the program, the strategic plan for the Upper Kanawha Valley, and the results of these efforts. The annual report to the Legislature shall be made to the Joint Committee on Government and Finance regarding the previous fiscal year no later than October 1 of each year. Copies of the annual report to the Legislature shall be provided to the county commissions and the mayors of the Upper Kanawha Valley.

(h) Economic incentives for businesses investing in the Upper Kanawha Valley. — The Development Office and the revitalization council, as applicable, will work to educate businesses investing, or interested in investing, in the Upper Kanawha Valley, about the availability of, and access to, economic development assistance, including but not limited to, the economic opportunity tax credit provided in §11-13Q-19 of this code; the manufacturing investment tax credit provided under §11-13S-1 et seq. of this code; and any other applicable tax credit or development assistance.

(i) Use of state property and equipment; faculty. — The Development Office or other owner of state property and equipment in the Upper Kanawha Valley is authorized to provide for the low cost and economical use and sharing of state property and equipment, including computers, research labs, and other scientific and necessary equipment to assist any business within the Upper Kanawha Valley at a nominal or reduced-cost reimbursements to the state for such use.

ARTICLE 2A. OFFICE OF COALFIELD COMMUNITY DEVELOPMENT.

§5B-2A-1. Legislative findings and declaration.

The Legislature hereby finds and declares the following:

(a) Coal mining has made and continues to make significant contributions to the economy of West Virginia. These contributions include the creation of quality jobs that pay high wages and provide good benefits; the consequent stimulation and support of mining contractors, suppliers of mining equipment and services, other mining-related industries and numerous providers of goods and services that are indirectly related to coal mining and dependent upon its existence and prosperity; the generation of significant severance and other tax revenues that support important economic development, infrastructure and education initiatives in mining communities and throughout the state; the support of civic, education and service groups in mining communities; and, in the case of surface mining operations, including mountaintop mining, the creation of much-needed flat land for economic development and recreational uses.

(b) The development and increasing prominence of surface mining operations, including mountaintop mining, has brought increasingly high levels of productivity, safety and efficiency to the state's mining industry, enabling the recovery of coal that could not otherwise be mined and marketed profitably, increasing the severance tax revenues and other economic benefits described in subsection (a) of this section and ensuring the competitiveness of the state's coal industry from a national and international perspective.

(c) Where implemented, surface mining operations, particularly mountaintop mining, tend to extract most, if not all, of the recoverable coal reserves in an accelerated fashion. For a state long dependent on the employment and revenue coal mining provides, this reality should be sobering and there is no place in which the comprehension of this reality is more crucial than the coalfields of West Virginia. Long dependent primarily on mining, this area must plan for a future without coal. The state and its subdivisions have a legitimate interest in securing that future.

(d) The coal industry and those related to the extraction of mineral resources benefit from the mining of our state's coal through mining practices which impact its citizens -- some in a negative way -- and through practices which will extract significant portions of coal reserves in an accelerated fashion. Those industries must therefore accept a greater responsibility to help address the long-term needs of the communities and citizens impacted by their activities.

(e) Once it becomes public knowledge that a permit is being sought, the marketability of property may change and the relative bargaining power of the parties may change with it. The potential for negative impact on those living in communities near surface mining operations may limit the options and bargaining power of the property owners.

(f) Surface mining operations, including mountaintop mining, present unique challenges to the coal mining industry and the state and its citizens, especially those living and working in communities that rely heavily upon these methods of mining. This requires that these communities, in conjunction with county commissions, state, local, county and regional development authorities, landowners and civic, community and business groups and interested citizens, develop plans related to the communities' long-term economic viability.

(g) The Division of Energy, as the state agency charged with energy policy and development activities, shall take a more active role in the long-term economic development of communities in which these mining methods are prevalent and shall establish a formal process to assist property owners in the determination of the fair market value where the property owner and the coal company voluntarily enter into an agreement relating to the purchase and sale of such property.

§5B-2A-2. Application of article.

(a) The provisions of this article shall apply to all surface-mining operations, except:

(1) The surface operations and surface impacts incident to an underground coal mine; and

(2) Surface-mining operations of operators that: (A) Establish that their probable total annual coal production from all locations during any consecutive twelve-month period, either during the term of the permit or during the first five years after issuance of the permit, whichever period is shorter, will not exceed three hundred thousand tons, as determined pursuant to rules promulgated by the division; and (B) otherwise qualify for the small operator assistance program authorized under the federal Surface-Mining Control and Reclamation Act of 1977, as amended, and the federal regulations promulgated thereunder, as amended.

(b) The provisions of this article shall not apply: (1) To underground coal mining operations; or (2) to the extraction of minerals by underground mining methods or the surface impacts thereof.

§5B-2A-3. Definitions.

(a) For the purpose of this article:

(1) “Department” means the Department of Environmental Protection established in article one, chapter twenty-two of this code;

(2) “Office” means the Office of Coalfield Community Development;

(3) “Operator” means the definition in section three, article three, chapter twenty-two of this code;

(4) “Renewable and alternative energy” means energy produced or generated from natural or replenishable resources other than traditional fossil fuels or nuclear resources and includes, without limitation, solar energy, wind power, hydropower, geothermal energy, biomass energy, biologically derived fuels, energy produced with advanced coal technologies, coalbed methane, fuel produced by a coal gasification or liquefaction facility, synthetic gas, waste coal, tire-derived fuel, pumped storage hydroelectric power or similar energy sources; and

(5) “Secretary” means the Secretary of the Department of Commerce.

(b) Unless used in a context that clearly requires a different meaning or as otherwise defined herein, terms used in this article shall have the definitions set forth in this section.

§5B-2A-4. Office of Coalfield Community Development.

(a) The Office of Coalfield Community Development is continued within the Department of Commerce.

(b) The secretary may appoint a chief to administer the office, who serves at the will and pleasure of the secretary.

§5B-2A-5. Powers and duties.

The office has and may exercise the following duties, powers, and responsibilities:

(1) To establish a procedure for determining the assets that could be developed in and maintained by the community to foster its long-term viability as provided in §5B-2A-8 of this code and to administer the procedure so established;

(2) To establish a procedure for determining the land and infrastructure needs in the general area of the surface mining operations as provided in §5B-2A-9 of this code and to administer the procedure so established;

(3) To establish a procedure to develop action reports and annual updates as provided in §5B-2A-10 of this code and to administer the procedure so established;

(4) To determine the need for meetings to be held among the various interested parties in the communities impacted by surface mining operations and, when appropriate, to facilitate the meetings;

(5) To establish a procedure to assist property owners in the sale of their property as provided in §5B-2A-11 of this code and to administer the procedure so established;

(6) In conjunction with the department, to maintain and operate a system to receive and address questions, concerns, and complaints relating to surface mining; and

(7) On its own initiative or at the request of a community in close proximity to a mining operation, or a mining operation, offer assistance to facilitate the development of economic or community assets. Such assistance shall include the preparation of a master land use plan pursuant to the provisions of §5B-2A-9 of this code.

§5B-2A-6. Community impact review.

(a) The office shall, no less frequently than quarterly, either consult with representatives of the department’s Office of Mining and Reclamation or review the department’s permit application database(s) to determine whether newly proposed surface mines or significant modifications to existing surface mining operations may present opportunities for mine operators to cooperate with local landowners and local governmental officials to mine and reclaim properties so as to develop community assets or secure developable land and infrastructure pursuant to this article.

(b) The provisions of this section shall apply to all surface mining permit applications granted after July 1, 2018.

§5B-2A-7.

Repealed.

Acts, 2002 Reg. Sess., Ch. 58.

§5B-2A-8. Determining and developing needed community assets.

(a) The office shall determine the community assets that may be developed by the community, county, or region to foster its viability when surface mining operations are completed.

(b) Community assets to be identified pursuant to subsection (a) of this section may include the following:

(1) Water and wastewater services;

(2) Developable land for housing, commercial development, or other community purposes;

(3) Recreation facilities and opportunities; and

(4) Education facilities and opportunities.

(c) In determining the nature and extent of the needed community assets, the office shall consider at least the following:

(1) An evaluation of the future of the community once mining operations are completed;

(2) The prospects for the long-term viability of any asset developed under this section;

(3) The desirability of foregoing some or all of the asset development required by this section in lieu of the requirements of §5B-2A-9 of this code; and

(4) The extent to which the community, local, state, or the federal government may participate in the development of assets the community needs to assure its viability.

§5B-2A-9. Securing developable land and infrastructure.

(a) The office shall determine the land and infrastructure needs in the general area of the surface mining operations for which it makes the determination authorized in §5B-2A-6 of this code.

(b) For the purposes of this section, the term "general area" shall mean the county or counties in which the mining operations are being conducted or any adjacent county.

(c) To assist the office, the operator, upon request by the office, shall be required to prepare and submit to the office the information set forth in this subsection as follows:

(1) A map of the area for which a permit under §22-3-1 et seq. of this code is being sought or has been obtained;

(2) The names of the surface and mineral owners of the property to be mined pursuant to the permit; and

(3) A statement of the post-mining land use for all land which may be affected by the mining operations.

(d) In making a determination of the land and infrastructure needs in the general area of the mining operations, the office shall consider at least the following:

(1) The availability of developable land in the general area;

(2) The needs of the general area for developable land;

(3) The availability of infrastructure, including, but not limited to, access roads, water service, wastewater service, and other utilities;

(4) The amount of land to be mined and the amount of valley to be filled;

(5) The amount, nature, and cost to develop and maintain the community assets identified in §5B-2A-8 of this code; and

(6) The availability of federal, state, and local grants and low-interest loans to finance all or a portion of the acquisition and construction of the identified land and infrastructure needs of the general area.

(e) In making a determination of the land and infrastructure needs in the general area of the surface mining operations, the office shall give significant weight to developable land on or near existing or planned multilane highways.

(f) The office may secure developable land and infrastructure for a Development Office or county through the preparation of a master land use plan for inclusion into a reclamation plan prepared pursuant to the provisions of §22-3-10 of this code. No provision of this section may be construed to modify requirements of §22-3-1 et seq. of this code.

(1) The county commission or other governing body for each county in which there are surface mining operations that are subject to this article shall determine land and infrastructure needs within their jurisdictions through the development of a master land use plan which incorporates post-mining land use needs, including, but not limited to, renewable and alternative energy uses, residential uses, highway uses, industrial uses, commercial uses, agricultural uses, public facility uses, or recreational facility uses. A county commission or other governing body of a county may designate a local, county, or regional development or redevelopment authority to assist in the preparation of a master land use plan. A county commission or other governing body of a county may adopt a master land use plan developed after July 1, 2009, only after a reasonable public comment period.

(2) Upon the request of a county or designated development or redevelopment authority, the office shall assist the county or development or redevelopment authority with the development of a master land use plan.

(3)(A) The Department of Environmental Protection and the Office of Coalfield Community Development shall review master land use plans existing as of July 1, 2009. If the office determines that a master land use plan complies with the requirements of this article and the rules promulgated pursuant to this article, the office shall approve the plan on or before July 1, 2010.

(B) Master land use plans developed after July 1, 2009, shall be submitted to the department and the office for review. The office shall determine whether to approve a master land use plan submitted pursuant to this subdivision within three months of submission. The office shall approve the plan if it complies with the requirements of this article and the rules promulgated pursuant to this article.

(C) The office shall review a master land use plan approved under this section every three years. No later than six months before the review of a master land use plan, the county or designated development or redevelopment authority shall submit an updated master land use plan to the department and the office for review. The county may submit its updated master land use plan only after a reasonable public comment period. The office shall approve the master land use plan if the updated plan complies with the requirements of this article and the rules promulgated pursuant to this article.

(D) If the office does not approve a master land use plan, the county or designated development or redevelopment authority shall submit a supplemental master land use plan to the office for approval.

(4) The required infrastructure component standards needed to accomplish the designated post-mining land uses identified in a master land use plan shall be developed by the county or its designated development or redevelopment authority. These standards must be in place before the respective county or development or redevelopment authority can accept ownership of property donated pursuant to a master land use plan. Acceptance of ownership of such property by a county or development or redevelopment authority may not occur unless it is determined that:

(A) The property use is compatible with adjacent land uses;

(B) The use satisfies the relevant county or development or redevelopment authority’s anticipated need and market use;

(C) The property has in place necessary infrastructure components needed to achieve the anticipated use;

(D) The use is supported by all other appropriate public agencies;

(E) The property is eligible for bond release in accordance with §22-3-23 of this code; and

(F) The use is feasible.

Required infrastructure component standards require approval of the relevant county commission, commissions, or other county governing body before such standards are accepted. County commission or other county governing body approval may be rendered only after a reasonable public comment period.

(5) The provisions of this subsection shall not take effect until legislative rules are promulgated pursuant to this code governing bond releases which assure sound future maintenance by the local or regional economic development, redevelopment, or planning agencies.

§5B-2A-10. Action report; annual update.

(a) Based upon the information developed under sections eight and nine of this article, the office shall prepare an action report which shall make recommendations for achieving economic development initiatives, including identifying sources of potential funding.

(b) The office shall prepare an annual status update of the action report which shall describe accomplishments and prospects for continued economic development.

§5B-2A-11. Land acquisitions.

The office shall establish a procedure to assist property owners who desire voluntarily to sell their property to the operator or any person, firm or corporation directly or indirectly affiliated with the operator. The procedure developed shall be subject to the following:

(1) The procedure only shall apply if all the following conditions are met:

(A) The operator or any person, firm or corporation directly or indirectly affiliated with the operator, makes an offer in writing to purchase the property stating all the terms and conditions of the proposed purchase;

(B) The property to be purchased is located within one thousand feet of property which actually is or will be mined; and

(C) The structures are actually being used for commercial purposes or are occupied residences situate on the property to be purchased;

(2) Once a permit application has been filed, the operator shall notify the office of any intended property acquisitions to which this section applies;

(3) The office shall cause notice to be given to potential sellers of the procedure established by this section, but shall provide no other assistance unless requested by the potential seller;

(4) If requested by the potential seller, the office shall make a determination as to whether the value of the property intended to be acquired is diminished by ongoing or intended mining operations and that the purchase price offered by the purchaser is less than the value the property would have had prior to any diminution of value. The office only shall provide assistance if it determines that the value of such property is diminished and that the offer made by the operator is less than the value the property would have had prior to any diminution of value; and

(5) If the office determines that the value of such property is diminished and that the offer made by the operator is less than the value the property would have had prior to any diminution of value, then the office shall establish the value of such property prior to any diminution and shall certify the same to the parties.

§5B-2A-12. Rulemaking.

The office shall propose rules for legislative approval in accordance with article three, chapter twenty-nine-a of this code to establish, implement and enforce the provisions of this article, which rules shall include, but not be limited to:

(1) The development of standards for establishing the value of property by the office; and

(2) Criteria for the development of a master plan by local, county, regional or redevelopment authorities which coordinates the permitting and reclamation requirements of the Department of Environmental Protection with these authorities.

§5B-2A-13.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

ARTICLE 2B. WEST VIRGINIA WORKFORCE INVESTMENT ACT.

§5B-2B-1. Short title.

This article shall be known and may be cited as the West Virginia Workforce Innovation and Opportunity Act.

§5B-2B-2. Definitions.

As used in this article, the following terms have the following meanings, unless the context clearly indicates otherwise:

“Board” means the West Virginia Workforce Development Board.

“Commission” or “Legislative Oversight Commission” means the Legislative Oversight Commission on Workforce Investment for Economic Development created pursuant to section seven of this article.

“Local area” means a local workforce investment area.

“Local board” means a local workforce development board.

“Team” means the workforce investment interagency collaborative team.

“WIOA” means the Workforce Innovation and Opportunity Act, 29 U. S. C. §3101, et seq.

§5B-2B-3. West Virginia Workforce Development Board; membership of board; meetings; quorum requirements.

(a) The West Virginia Workforce Development Board is hereby created and shall serve as the state’s Workforce Development Board, as required by the WIOA. The board shall make general recommendations regarding workforce investment in the state to the Governor and the Legislature.

(b) The membership of the board shall meet the requirements of WIOA §101(b) and represent diverse geographic areas of the state, including urban, rural and suburban areas. The board membership includes:

(1) The Governor, or his or her designated representative; and

(2) The President of the Senate, or his or her designee, and the Speaker of the House of Delegates, or his or her designee, both of whom shall be nonvoting members of the board; and

(3) Members appointed by the Governor, with the advice and consent of the Senate, which shall include:

(A) Representatives of businesses or organizations, who shall comprise a majority of the board membership, who:

(i) Are the owner or chief executive officer for the business or organization, or is an executive with the business or organization with optimum policy-making or hiring authority, and may also be members of a local board as described in WIOA §107(b)(2)(A)(i);

(ii) Represent businesses, or organizations that represent businesses described in paragraph (A), subdivision (3), subsection (b) of this section, that, at a minimum, provide employment and training opportunities that include high-quality, work-relevant training and development in in-demand industry sectors or occupations in the state;

(iii) Are appointed from a list of potential members proposed by state business organization and business trade associations; and

(iv) At a minimum, one member representing small businesses as defined by the U. S. Small Business Administration.

(B) Not less than twenty percent of the board shall be representatives of the workforce within the state, which:

(i) Shall include two or more representatives of labor organizations appointed from a list proposed by state labor federations;

(ii) Shall include one representative who shall be a member of a labor organization or training director from a joint labor-management apprenticeship program, or, if no such joint program exists in the state, a member of a labor organization or training director who is a representative of an apprenticeship program;

(iii) May include one or more representatives of community-based organizations that have demonstrated experience and expertise in addressing the employment, training or education needs of individuals with barriers to employment, including organizations that serve veterans or provide or support competitive, integrated employment for individuals with disabilities; and

(iv) May include one or more representative of organizations that have demonstrated experience and expertise in addressing the employment, training or education needs of eligible youth, including representative of organizations that serve out-of-school youth.

(C) The balance of the members:

(i) Shall include representatives of government including:

(I) The lead state officials with primary responsibility for each of the core programs. Where the lead official represents more than one core program, that official shall ensure adequate representation of the needs of all core programs under his or her jurisdiction; and

(II) Two or more chief elected officials, collectively representing both cities and counties, where appropriate.

(ii) May include other appropriate representatives and officials designated by the Governor, such as, but not limited to, state agency officials responsible for one-stop partner programs, economic development or juvenile justice programs in the state, individuals who represent an Indian tribe or tribal organization as defined in WIOA §166(b), and state agency officials responsible for education programs in the state, including chief executive officers of community colleges and other institutions of higher education.

(c) The Governor shall select a chairperson for the board from the business representatives on the board described in paragraph (A), subdivision (3), subsection (b) of this section.

(d) Initial terms for appointed members of the board are for up to three years as determined by the Governor. All subsequent terms shall be for three years.

(e) Members who represent organizations, agencies or other entities described in paragraphs (B) and (C), subdivision (3), subsection (b) of this section shall be individuals who have optimum policy-making authority in the organizations they represent.

(f)(1) A board member may not represent more than one of the categories described in:

(A) Paragraph (A), subdivision (3), subsection (b) of this section;

(B) Paragraph (B), subdivision (3), subsection (b) of this section; or

(C) Paragraph (C), subdivision (3), subsection (b) of this section.

(2) A board member may not serve as a representative of more than one subcategory under paragraph (B), subdivision (3), subsection (b) of this section.

(3) A board member may not serve as a representative of more than one subcategory under paragraph (C), subdivision (3), subsection (b) of this section: Provided, That where a single government agency is responsible for multiple required programs, the head of the agency may represent each of the required programs.

(g) All required board members, other than the ex officio members of the Legislature, shall have voting privileges. The Governor may also convey voting privileges to nonrequired members.

§5B-2B-4. Duties of the Workforce Development Board.

(a) The board shall provide information and guidance to local boards and staff, to enable them to better educate both women and men about higher paying jobs and careers including jobs traditionally dominated by men or women. Such guidance shall promote services provided by the local boards for job seekers that includes:

(1) Current information about compensation for jobs and careers that offer high earning potential including jobs that are traditionally dominated by men or women;

(2) Counseling, skills development and training opportunities that encourage both women and men to seek employment in such jobs;

(3) Referral information to employers offering such jobs; or

(4) Information regarding the long-term consequences, including lower social security benefits or pensions, of choosing jobs that offer lower earnings potential and are traditionally dominated by women or men.

(b) Under WIOA §101(d), the board shall assist the Governor in the:

(1) Development, implementation and modification of the four-year state plan;

(2) Review of statewide policies, programs and recommendations on actions that should be taken by the state to align workforce development programs to support a comprehensive and streamlined workforce development system. Such review of policies, programs and recommendations shall include a review and provision of comments on the state plans, if any, for programs and activities of one-stop partners that are not core programs;

(3) Development and continuous improvement of the workforce development system, including:

(A) Identification of barriers and means for removing barriers to better coordinate, align and avoid duplication among programs and activities;

(B) Development of strategies to support career pathways for the purpose of providing individuals, including low-skilled adults, youth and individuals with barriers to employment, including individuals with disabilities, with workforce investment activities, education and supportive services to enter or retain employment;

(C) Development of strategies to provide effective outreach to, and improved access for, individuals and employers who could benefit from workforce development system;

(D) Development and expansion of strategies to meet the needs of employers, workers and jobseekers, particularly through industry or sector partnerships related to in-demand industry sectors and occupations;

(E) Identification of regions, including planning regions for the purpose of WIOA §106(a), and the designation of local areas under WIOA §106 after consultation with local boards and chief elected officials;

(F) Development and continuous improvement of the one-stop delivery system in local areas, including providing assistance to local boards, one-stop operators, one-stop partners and providers. Such assistance includes assistance with planning and delivering services, including training and supportive services, to support effective delivery of services to workers, jobseekers and employers; and

(G) Development of strategies to support staff training and awareness across the workforce development system and its programs;

(4) Development and updating of comprehensive state performance and accountability measures to access core program effectiveness under WIOA §116(b);

(5) Identification and dissemination of information on best practices, including best practices for:

(A) The effective operation of one-stop centers, relating to the use of business outreach, partnerships and service delivery strategies, including strategies for serving individuals with barriers to employment;

(B) The development of effective local boards, which may include information on factors that contribute to enabling local boards to exceed negotiated local levels of performance, sustain fiscal integrity and achieve other measures of effectiveness; and

(C) Effective training programs that response to real-time labor market analysis, that effectively use direct assessment and prior learning assessment to measure an individual’s prior knowledge, skills, competencies and experiences for adaptability, to support efficient placement into employment or career pathways;

(6) Development and review of statewide policies affecting the coordinated provision of services through the state’s one-stop delivery system described in WIOA §121(e), including the development of:

(A) Objective criteria and procedures for use by local boards in assessing the effectiveness, physical and programmatic accessibility and continuous improvement of one-stop centers. Where a local board serves as the one-stop operator, the board shall use such criteria to assess and certify the one-stop center;

(B) Guidance for the allocation of one-stop center infrastructure funds under WIOA §121(h); and

(C) Policies relating to the appropriate roles and contributions of entities carrying out one-stop partner programs within the one-stop delivery system, including approaches to facilitating equitable and efficient cost allocation in the system;

(7) Development of strategies for technological improvements to facilitate access to, and improve the quality of services and activities provided through, the one-stop delivery system, including such improvements to:

(A) Enhance digital literacy skills (as defined in §202 of the Museum and Library Service Act, 20 U. S. C. §9101);

(B) Accelerate acquisition of skills and recognized post-secondary credentials by participants;

(C) Strengthen professional development of providers and workforce professionals; and

(D) Ensure technology is accessible to individuals with disabilities and individuals residing in remote areas;

(8) Development of strategies for aligning technology and data systems across one-stop partner programs to enhance service delivery and improve efficiencies in reporting on performance accountability measures, including design implementation of common intake, data collection, case management information, and performance accountability measurement and reporting processes and the incorporation of local input into such design and implementation to improve coordination of services across one-stop partner programs;

(9) Development of allocation formulas for the distribution of funds for employment and training activities for adults and youth workforce investment activities, to local areas as permitted under WIOA §128(b)(3) and §133(b)(3);

(10) Preparation of the annual reports described in paragraphs (1) and (2) of WIOA §116(d);

(11) Development of the statewide workforce and labor market information system described in §15(e) of the Wagner-Peyser Act, 29 U. S. C. §49, et seq.; and

(12) Development of other policies as may promote statewide objectives for and enhance the performance of the workforce development system in the state.

§5B-2B-4a. Report to Legislature.

(a) The Legislature finds that:

(1) The state needs to take all necessary steps to retain, educate and train West Virginians to have the skills necessary to compete for job opportunities resulting from horizontal drilling; and

(2) Specific attention shall be made by the State of West Virginia to train and educate West Virginia citizens that have not historically or traditionally been exposed to the oil and gas industry through training programs offered by community colleges, technical schools and institutions and small business owners. Small business owners shall be made aware by the State of West Virginia of any and all programs and grants available to assist them in training said individuals.

(b) To assist in maximizing the economic opportunities available with horizontal drilling, the  board shall make a report to the Joint Committee on Government and Finance and the Legislative Oversight Commission on Education Accountability on or before November 1 of each year through 2016, detailing a comprehensive review of the direct and indirect economic impact of employers engaged in the production of horizontal wells in the State of West Virginia, as more specifically defined in article six-a, chapter twenty-two of this code, which shall include:

(1) A review of the total number of jobs created;

(2) A review of total payroll of all jobs created;

(3) The average salary per job type;

(4) A review of total economic impact;

(5) The board’s recommendations for the establishment of an overall workforce investment public education agenda with goals and benchmarks toward maximizing job creation opportunities in the State of West Virginia;

(6) A review of number of jobs created for minorities based on race, ethnicity and gender;

(7) A review of number of jobs created for individuals reemployed from the State of West Virginia’s unemployment rosters;

(8) A review of number of jobs created for returning veterans; and

(9) A review of number of jobs created for legal West Virginia residents and non-West Virginia residents.

(c) To the extent permitted by federal law, and to the extent necessary for the  board to comply with this section, the board, Workforce West Virginia, the Division of Labor and the Office of the Insurance Commissioner may enter into agreements providing for the sharing of job data and related information.

§5B-2B-4b. Open meetings; public information.

(a) The board shall conduct business in an open manner as required by WIOA §101(g).

(b) The board shall make available to the public, on a regular basis through electronic means and open meetings, information about the activities and functions of the board including:

(1) The state plan, or modification to the state plan, prior to submission of the plan or modification of the plan;

(2) Information regarding membership; and

(3) Minutes of formal meetings of the board upon request.

§5B-2B-5. State agencies.

On or before November 1, any state agency that receives federal or state funding that has been used for workforce investment activities for the past fiscal year shall provide to the  board a report, detailing the source and amount of federal, state or other funds received; the purposes for which the funds were provided; the services provided in each regional workforce investment area; the measures used to evaluate program performance, including current and baseline performance data; and any other information requested by the  board. All reports submitted pursuant to this section are to be in a form approved by the board.

§5B-2B-6. Administration of board.

(a) Workforce West Virginia shall provide administrative and other services to the board as the board requires.

(b) Workforce West Virginia shall facilitate the coordination of board activities and local workforce investment activities, including holding meetings with the executive directors of each local board at least monthly. Any executive director of a local board who participates in a meeting held pursuant to this subsection shall report to his or her local board and the county commission of each county represented by the local board regarding the meeting.

§5B-2B-7. Legislative oversight commission on workforce investment for economic development.

(a) There is hereby created a joint commission of the Legislature known as the Legislative Oversight commission on workforce investment for economic development.

(b) The commission is to be composed of four members of the Senate appointed by the President of the Senate from the members of the joint commission on economic development and four members of the House of Delegates appointed by the Speaker of the House of Delegates from the members of the joint commission on economic development. No more than three of the four members appointed by the President of the Senate and the Speaker of the House of Delegates, respectively, may be members of the same political party. The President of the Senate and the Speaker of the House of Delegates shall each appoint a chairperson from their respective houses. The members shall serve until their successors have been appointed.

(c) Members of the commission may receive compensation and expenses as provided in article two-a, chapter four of this code. Expenses, including those incurred in the employment of legal, technical, investigative, clerical, stenographic, advisory and other personnel, are to be approved by the Joint Committee on Government and Finance and paid from legislative appropriations.

(d) The commission may meet at any time both during sessions of the Legislature and in the interim or as often as may be necessary.

§5B-2B-8. Powers and duties of the commission.

(a) The commission shall make a continued investigation, study and review of the practices, policies and procedures of the workforce investment strategies and programs implemented in the state.

(b) The commission has the authority to conduct or cause to be conducted performance audits upon local workforce investment boards.

(c) For purposes of carrying out its duties, the commission is hereby empowered and authorized to examine witnesses and to subpoena persons, books, records, documents, papers or any other tangible things it believes should be examined to make a complete investigation. All witnesses appearing before the commission shall testify under oath or affirmation, and any member of the commission may administer oaths or affirmations to witnesses. To compel the attendance of witnesses at hearings or the production of any books, records, documents, papers or any other tangible things, the commission is hereby empowered and authorized to issue subpoenas, signed by one of the chairpersons, in accordance with section five, article one, chapter four of this code. Subpoenas are to be served by any person authorized by law to serve and execute legal process and service is to be made without charge. Witnesses subpoenaed to attend hearings are to be allowed the same mileage and per diem as are allowed witnesses before any petit jury in this state. If any person subpoenaed to appear at any hearing refuses to appear or to answer inquiries there propounded, or fails or refuses to produce books, records, documents, papers or other tangible things within his or her control when they are demanded, the commission shall report the facts to the circuit court of Kanawha County or any other court of competent jurisdiction and the court may compel obedience to the subpoena as though the subpoena had been issued by the court in the first instance.

§5B-2B-9. Coordination between agencies providing workforce investment programs, local workforce investment boards and the Executive Director of Workforce West Virginia.

(a) To provide ongoing attention to addressing issues that will build and continually improve the overall workforce investment system, the Workforce Investment Interagency Collaborative Team is hereby created. The team shall be the single state interagency source for addressing issues or concerns related to building and maintaining the most effective and efficient implementation of  WIOA and the overall workforce development system in West Virginia. The team shall focus on how best to collaborate between and among the state agencies directly involved in workforce investment activities and shall develop a strategic plan to that end. The team shall serve as a forum for the board to seek information or recommendations in furtherance of its responsibilities under this article. Workforce West Virginia is the entity which shall convene the team at least monthly and shall provide administrative and other services to the team as the team requires.

(b) The team shall consist of members from each agency subject to the reporting provisions of section five of this article. Each agency shall appoint two representatives to the team consisting of the chief official of the department or division and the official within that department or division who is directly responsible for overseeing the workforce investment program or activities at the state level. A designee may be selected to represent a member appointed to the team: Provided, That the designee has policy-making decision authority regarding workforce investment activities including program and fiscal issues. The team members have authority to make decisions on behalf of the agency at the level required for the team to address issues and advance system improvements.

(c) The team shall coordinate the development of a self-sufficiency standard study for the State of West Virginia. The self-sufficiency standard is to measure how much income is needed for a household of a given composition in a given place to adequately meet its basic needs without public or private assistance. Beginning on November 1, 2004, and every two years thereafter, this study is to be reported to the Speaker of the House of Delegates, the President of the Senate, the board and the Legislative Oversight Commission on Workforce Investment for Economic Development.

(d) Beginning January 1, 2003, in order to lawfully continue any workforce investment activities, any agency subject to the reporting provisions of section five of this article shall enter into a memorandum of understanding with the Executive Director of Workforce West Virginia and any local board representing an area of this state in which the agency is engaged in workforce investment activities. To the extent permitted by federal law, the agreements are to maximize coordination of workforce investment activities and eliminate duplication of services on both state and local levels.

(e) No memorandum of understanding may be effective for more than one year without annual reaffirmation by the parties.

(f) Any state agency entering a memorandum of understanding shall deliver a copy thereof to both the board and the Legislative Oversight Commission.

ARTICLE 2C. WEST VIRGINIA ACADEMY OF SCIENCE AND TECHNOLOGY.

§5B-2C-1. Legislative purpose.

(a) The Legislature hereby finds that educational and economic development require an integrated program of support for research and development, assistance in the transfer of technological innovations and discoveries to public and private enterprises and facilitation of the commercialization of intellectual property. To that end, the state recognizes the need for:

(1) Informed analysis of the status of science and technology research, development and commercialization capabilities, infrastructure and activities within West Virginia and the development of innovative options that build upon and expand them with the goal of increasing the gross state product;

(2) Coordination of efforts to attract private and federal assistance for research, development and commercialization in those fields most likely to maximize the gross state product;

(3) Increased collaboration between all of the federal, state and private research and development and technology commercialization organizations in the state;

(4) Strengthening the leadership and support of the West Virginia experimental program to stimulate competitive research; and

(5) Leadership in science and technology policy.

(b) The Legislature therefore declares that creation of a West Virginia academy of science and technology will promote and foster the educational and economic development of the state.

§5B-2C-2. West Virginia academy of science and technology; composition; creation of council, appointment and terms; expenses; selection of chairperson; quorum; meetings.

(a) There is hereby created, within the West Virginia Development Office, a West Virginia academy of science and technology. The academy consists of a standing council of nine members and such ad hoc working groups as may be necessary to review a particular field of study. A working group may include both members of the council and also such individuals having expertise within their profession or discipline who can be appointed fellows of the academy.

(b) Members of the academy council shall be selected for their demonstrated ability in innovative thinking, management skills, broad technical knowledge and a record of working to improve the science and technology base of the state. The objective of the process of selection shall be to create a council that, in its composition, represents a broad cross-section of those involved throughout the state's science and technology enterprises. Members of the council shall be selected and appointed as follows:

(1) The Governor shall appoint to the council, with the advice and consent of the Senate, three members experienced with, or serving in, federal agencies that promote and utilize research, development and commercialization, from a list of six persons recommended by a nominating committee. The nominating committee will be organized and lead by a representative from the national energy technology laboratory and may consist of representatives of United States government agencies, including, but not limited to, the federal departments of energy, transportation, agriculture, defense and homeland security, the national science foundation and the national aeronautics and space administration;

(2) The Governor shall appoint to the council, with the advice and consent of the Senate, three members with experience and expertise in private enterprise, research and development and commercialization from a list of six persons recommended by a nominating committee. The nominating committee will be organized and lead by a representative from the council for community and economic development and may consist of representatives from labor and industry, including, but not limited to, the economic development authority, the infrastructure council, the West Virginia high technology consortium and the West Virginia American federation of labor - congress of industrial organizations; and

(3) The Governor shall appoint to the council, with the advice and consent of the Senate, three members with experience and expertise in stimulating competitive research and development from a list of six persons recommended by a nominating committee. The nominating committee shall be organized and lead by a representative of the Higher Education Policy Commission and may consist of representatives from the state institutions of higher education.

(c) The terms of the council members taking office on or after the effective date of this legislation shall expire as designated by the Governor at the time of their appointment, with one term in each of the three categories in subsection (b) of this section expiring at the end of the second year, one term in each category expiring at the end of the fourth year and one term in each category expiring at the end of the sixth year. As the original appointments expire, each subsequent appointment will be for a full six-year term. Any member whose term has expired may serve until a successor has been duly appointed and qualified. For any vacancy in the office of a member occurring prior to the expiration of that term, the vacancy may be filled by the Governor from a list of three qualified persons recommended by the remaining members of the council. Any person appointed to fill a vacancy shall serve for only the unexpired term unless reappointed by the Governor for an additional term. Any member may be appointed to successive terms not to exceed two full terms.

(d) Members of the council are not entitled to compensation for service on the council but may be reimbursed by the West Virginia Development Office for all reasonable and necessary expenses actually incurred in the performance of their duties in a manner consistent with guidelines of the travel management office of the Department of Administration or its successor.

(e) The Governor will select and appoint a member of the council to serve as chairperson for a term of two years to run concurrently with the term of office of the member designated as chair.

(f) A majority of members constitutes a quorum for the purpose of conducting business.

(g) The council shall meet at least once each quarter of the year and shall conduct all meetings in accordance with the open governmental meetings proceedings act pursuant to article nine-a, chapter six of this code.

§5B-2C-3. Executive director; powers and duties; compensation; expenses.

(a) The Governor is authorized and directed to request and negotiate the loan of a federal executive employee, pursuant to the provisions of the federal intergovernmental personnel act, to serve as the initial executive director of the council. This person is expected to serve as executive director of the academy for a period of not less than one year. He or she must have training and experience in science, technology research, development and commercialization and demonstrable skills in managing new programs. The executive director shall serve at the will and pleasure of the academy council and is not entitled to compensation but may be reimbursed by the West Virginia Development Office for all reasonable and necessary expenses actually incurred in the performance of his or her duties in a manner consistent with guidelines of the travel management office of the Department of Administration or its successor.

(b) Subsequent executive directors may be selected by the council in consultation with the director of the West Virginia Development Office.

(c) In addition to assisting the council and its working groups in the exercise of their duties, the executive director shall:

(1) Facilitate and oversee the process for the initial nomination and appointment of council members;

(2) Provide and obtain scientific, technical, economic, programmatic information and market research to support the work of the academy;

(3) Foster and maintain relationships between agencies of this state, other states, the federal government, educational institutions, nonprofit organizations and private enterprises for the advancement of research, development and commercialization;

(4) Organize, prepare and lead presentations on science, technology research and development and commercialization for business executives, state legislative leaders and committees, and federal agencies; and

(5) Develop yearly work plans for the academy.

(d) The executive director will be available to the Governor, the Speaker of the House of Delegates and the President of the Senate to analyze and comment upon proposed legislation and rules that relate to or materially affect state scientific, technical and commercialization issues.

§5B-2C-4. Powers and duties of the council of the academy of science and technology.

(a) The council may seek and accept public and private research grants and contracts, matching funds and procurement arrangements from the state and federal government, private industry and other agencies, in furtherance of and consistent with its mission and programs: Provided, That members of the council may not violate the West Virginia ethics act, pursuant to the provisions of chapter six-b of this code.

(b) The council may, through the West Virginia Development Office, receive and accept gifts or grants from private foundations, corporations, individuals, devises and bequests or from other lawful sources. All moneys collected shall be deposited in a special account in the state Treasury to be known as the "West Virginia academy of science and technology fund". Expenditures from the fund shall be made by the West Virginia Development Office on the request of the council for the purposes set forth in this article and are not authorized from collections but are to be made only in accordance with appropriation by the Legislature and in accordance with the provisions of article three, chapter twelve of this code and upon fulfillment of the provisions of article two, chapter five-a of this code: Provided, That for the fiscal year ending June 30, 2004, expenditures are authorized from collections rather than pursuant to appropriation by the Legislature.

(c) The council may select and appoint fellows of the council pursuant to the provision of section five of this article.

(d) The council may make recommendations to the Governor, the Speaker of the House of Delegates, the President of the Senate and the joint commission on economic development concerning strategic and specific policies to foster research and development within this state.

(e) The council may recommend legislation to facilitate improved coordination between state agencies, educational institutions, industries and research laboratories.

(f) The council may develop and produce written or electronic information to assist researchers in educational institutions or private enterprise in identifying, applying for and obtaining grants, stipends or other financial support for research, development, technology transfer or commercialization of intellectual property.

(g) The council may convene public meetings to gather information or receive public comments regarding the administration and coordination of research and development efforts within this state.

(h) The council may, through the West Virginia Development Office, enter into contracts or joint venture agreements with federal and state agencies, corporations, partnerships and other organizations that conduct research, make grants, improve educational programs and work for the scientific, educational or economic development of this state. The director of the West Virginia Development Office and the council must, by majority vote, approve all contracts and joint venture agreements.

(i) The council may enter into contractual agreements for consideration with entities that are funded from sources other than the state: Provided, That members of the council may not violate the West Virginia ethics act pursuant to the provisions of chapter six-b of this code.

(j) Members of the academy may be appointed to serve on boards of directors of any contracting private nonprofit corporation, foundation or firm: Provided, That members of the council may not violate the West Virginia ethics act pursuant to the provisions of chapter six-b of this code.

§5B-2C-5. Fellows of the academy of science and technology.

(a) In order to address the specific opportunities and needs of any particular field of science and technology, the council may establish working groups composed of a member or members of the council with expertise in that field or discipline and additional individuals, to be known as fellows of the academy of science and technology. Any working group so created may conduct business, research and meetings by telephone, electronic mail or in person and shall not require a quorum to conduct its business. The committee or working group shall submit a report or reports of its findings and recommendations to the council for incorporation in policy recommendations and the annual report of the academy.

(b) Selection of a fellow of the academy will be made on the basis of the designated individual's experience and expertise in the field to be addressed by the working group and must be by a majority vote of the council. The term of a fellow of the academy is one year and a term may be renewed by the council as needed.

§5B-2C-6. Periodic reports.

(a) The academy will prepare and produce an annual report on the state of science and technology in West Virginia and submit it to the Governor, the Speaker of the House of Delegates, the President of the Senate and the joint commission on economic development or before July 1, of each year. The report shall address all aspects of research, development and commercialization that the academy council deems material, including, but not limited to:

(1) Strengths, weaknesses, opportunities, and threats to West Virginia’s research, development, and commercialization environment and establishments;

(2) Options for actions by the Legislature and the Governor to maximize the ability of the state to attract investment, grants, and infrastructure development to support growth of science and technology research, development, and commercialization in the state;

(3) The status of, and options to improve, scientific and technological entrepreneurship in West Virginia; and

(4) The status of, and options to improve, the collaboration of institutions of higher education in obtaining competitive research awards and grants.

(b) In preparing its annual report, the council may utilize the technical support available to it through the West Virginia Development Office, the West Virginia Experimental Program to Stimulate Competitive Research (EPSCoR), the West Virginia higher education system, federal and state agencies, and other entities that have an interest in fostering science and technology research, development, and commercialization in this state.

(c) Each month, an academy representative shall meet with legislative and executive leaders to provide updates and information concerning opportunities, issues and progress of science, technology, and commercialization in the state.

§5B-2C-7. Confidentiality of contributed material.

Any documentary material, data or other writing made or received by the West Virginia academy of science and technology for the purpose of developing state summaries or policy options concerning the capabilities, performance or plans of individual businesses or organizations is deemed to be confidential trade secrets which are exempt from disclosure under the provisions of section four, article one, chapter twenty-nine-b of this code, and the provisions of section one, article two of this chapter.

§5B-2C-8.

Repealed.

Acts, 2010 Reg. Sess., Ch. 32.

ARTICLE 2D. WEST VIRGINIA GUARANTEED WORK FORCE PROGRAM.

§5B-2D-1. Short title.

This article shall be known and may be cited as the “West Virginia Guaranteed Work Force Program.”

§5B-2D-2. Definitions.

As used in this article, the following words and terms have the following meanings unless the context indicates another or different meaning or intent:

(1) "WVDO" means the West Virginia Development Office;

(2) "Employer" means an individual, partnership, corporation, or other legal entity that employs or plans to employ skilled workers;

(3) "Retraining and job upgrade" means the specialized training that is given to an identified level of employees to enable them to advance to a higher level of employment;

(4) "Program" means the West Virginia Guaranteed Work Force Program established pursuant to section three of this article;

(5) "Training" means custom-designed training given to employees or prospective employees of new or expanding businesses and industries within the state;

(6) "Training provider" means any persons, public or private educational institutions, agencies, companies or other entities that may be utilized for training or consultative services for an employer.

§5B-2D-3. Training program.

The West Virginia Development Office shall develop a business and industrial training program, the purpose of which is to provide assistance for new or expanding businesses for the training, retraining or upgrading of the skills of potential employees. The program shall emphasize employee training specifically designed to accommodate the needs of individual employers. The program shall encourage the expansion of existing businesses and industries within the state, promote retention of businesses and industries within the state, promote retention of existing jobs within the state, prevent economic and industrial out-migration, and assist in the relocation of out-of-state businesses and industries in the state. Under this program, the West Virginia Development Office may pay up to one hundred percent or $2,000 per employee, whichever is less, of training costs of new employees in firms creating at least ten jobs in a one-year period. Training assistance may also be provided to existing businesses in cases in which training, retraining or upgrading services will result in the retention of existing jobs or the creation of additional jobs, or both: Provided, That the West Virginia Development Office may pay up to one hundred percent or $10,000 per employee, whichever is less, for the training, retraining or upgrading. Training costs associated with this program will be paid directly by the training provider.

Provision of training services will depend upon the employer meeting program requirements as set forth by the West Virginia Development Office and this article. The state of West Virginia guarantees if employer satisfaction is not achieved, the West Virginia Development Office will carefully review the effectiveness of the recently completed training plan and program with the employer and the training provider. After such review, if the West Virginia Development Office determines that the training program was inadequate to meet the employer's specifications and satisfaction as originally agreed to, then those employees so trained shall be eligible for retraining under the guarantee provision except when the training program curriculum or provider were selected solely at the discretion of the employer, then no such additional training shall be considered or approved: Provided, That in no instance may the cost of training and retraining an employee exceed $4,000.

§5B-2D-4. Funds.

The funds made available by this section shall supplement but not displace funds available through existing programs conducted by employers themselves and public programs such as the Workforce Investment Act (WIA), the Carl D. Perkins Vocational Education Act, the Stewart B. McKinney Homeless Assistance Act, and the JOBS Act, or apportionment fund allocated to the community colleges, regional occupational centers and programs, or other local educational agencies. In addition, it is further the intention of the Legislature that the program established pursuant to this section shall not replace, parallel, supplant, compete with, or duplicate in any way existing, approved apprenticeship programs.

The fund shall consist of all moneys provided by the Legislature and also any contributions, grants or bequests received from federal, private or other sources. Appropriations made from the funds shall be for the purpose of providing contractual services through the West Virginia Development Office for vocational related training or retraining provided by public or private training institutions within West Virginia and for contracted services through the West Virginia Development Office for vocational related training, retraining or upgrading provided by public or private training institutions located outside of West Virginia and for vocational related training or retraining provided on site, within West Virginia by any training provider as defined in this article.

§5B-2D-5. Program activities.

The primary concern in the provision of training services shall be the needs and types of services identified by the employer. A college or university, community college or area vocational education center shall be given initial consideration to provide any training, retraining, or job upgrade training. The employer will have the opportunity to participate in the selection of a training provider and training program curriculum. Training services may begin upon execution of a written agreement between the West Virginia Development Office and the employer.

Program activities may include, but not be limited to, the following:

(a) The performance of a job skills analysis and the designing of a training curriculum for an employer.

(b) The recruitment and referral of trainee applicants to an employer.

(c) The provision of off site preemployment training to prospective employees of a new or expanding business or industry or to existing employees for purposes of retraining or upgrading: Provided, That on site preemployment training may be provided if off site preemployment training is not practical.

(d) Retraining of employees in response to a technological change.

(e) The provision of job upgrade training, if the training will retain or increase the employer's total work force.

(f) Contracting with persons, public or private educational institutions, agencies or other bodies for training or consultative services for an employer.

(g) The provision of materials and supplies used in the training process, instructors with specialized skills, instructional training aids and equipment, consultative services relative to highly specific or technical data and other services.

(h) Assisting a foreign employer locating or expanding in this state by familiarizing the employer's foreign personnel with the work attitudes, work methods, expectations, customs and life style of employees who work within this state.

(i) Taking any other action that is considered to be necessary or desirable for the furtherance of the provisions of this article.

Funds may not be awarded or reimbursed to any business or industry for the training, retraining or upgrading of skills of potential employees with the purpose of replacing or supplanting employees engaged in an authorized work stoppage.

§5B-2D-6. Reporting.

(a) The office shall file a report with the Legislature, the Legislative Oversight commission on workforce investment for economic development and the Governor at the end of each fiscal year, commencing June 30, 1990. This report shall include the following:

(1) The number of persons trained and their demographics;

(2) The number of persons placed in employment;

(3) The number of employers for which persons have been trained and placed;

(4) The number of persons trained and placed for each employer;

(5) The types of work for which persons have been trained;

(6) The source of training fund; and

(7) The overall effectiveness of this article in contributing to economic stabilization and business and industrial growth within this state.

(b) In addition, the West Virginia Development Office shall report on a quarterly basis to the West Virginia workforce investment council and the Legislative Oversight commission on workforce investment for economic development the following as they relate to the training program established by this article:

(1) The names of all companies approved for training during the reporting quarter;

(2) The names of all companies receiving funding for training during the reporting quarter;

(3) The amount and source of funds utilized for each training program;

(4) The type of training being delivered;

(5) The number of employees trained; and

(6) Those agencies providing the training.

§5B-2D-7. Marketing.

The West Virginia Development Office shall market and promote the program.

§5B-2D-8. Summer youth intern pilot program.

A summer youth intern pilot program is established within the Department of Commerce to provide high school students with internship opportunities that allow these youths to explore and prepare for high-demand careers, gain work experience, and develop the life characteristics necessary for success in occupations and entrepreneurship. The Department of Commerce shall work with employers, nonprofit organizations, and educational institutions to provide for the placement of youth in internships primarily in high-demand career fields with a prioritization of offering equitable opportunities for all students. Subject to an appropriation by the Legislature for this purpose, the Department of Commerce may award grants to assist employers with costs of the summer youth intern pilot projects on a competitive basis subject to the following:

(1) The Department of Commerce shall annually issue a request for proposals to the public, specifying the expectations, requirements, and qualifications for the summer youth intern pilot program grant, including, but not limited to, the provision of facilities, programming, staffing, and outcomes; and

(2) The Department of Commerce shall give full and fair consideration to each proposal submitted under subdivision (1) of this subsection and shall award grants after considering, at a minimum, the following:

(A) The bidder’s history and experience in the community;

(B) The capacity to serve a substantial number of youths;

(C) The suitability of the available facilities;

(D) The bidder’s contacts and partnerships in the community that can be leveraged to maximize opportunity for project participants; and

(E) The capacity to provide employability skills, including but not limited to training relating to soft skills, financial literacy, and career development.

ARTICLE 2E. WEST VIRGINIA TOURISM DEVELOPMENT ACT.

§5B-2E-1. West Virginia Tourism Development Act.

This article shall be referred to as the "West Virginia Tourism Development Act."

§5B-2E-2. Legislative findings.

The Legislature finds and declares that the general welfare and material well-being of the citizens of the state depend, in large measure, upon the development of tourism development projects in the state and that it is in the best interest of the state to induce the creation of new, or the expansion of existing, tourism development projects within the state in order to advance the public purposes of relieving unemployment by preserving and creating jobs and by preserving and creating new and greater sources of revenues for the support of public services provided by the state; and that the inducement for the creation or expansion of tourism development projects should be in the form of a tax credit to be applied to consumers sales and service taxes collected on the gross receipts generated directly from the operations of the new or expanded tourism development projects, in lieu of tax credits on income that are largely deferred for a number of years after start up of a major tourism development project; and all of which new or expanded tourism developments are of paramount importance to the state and its economy and for the state's contribution to the national economy.

§5B-2E-3. Definitions.

As used in this article, unless the context clearly indicates otherwise:

(1) “Agreement” means a tourism development agreement entered into, pursuant to section six of this article, between the development office and an approved company with respect to a project.

(2) “Approved company” means any eligible company approved by the development office pursuant to section five of this article seeking to undertake a project.

(3) “Approved costs” means:

(a) Included costs:

(i) Obligations incurred for labor and to vendors, contractors, subcontractors, builders, suppliers, delivery persons and material persons in connection with the acquisition, construction, equipping or installation of a project;

(ii) The costs of acquiring real property or rights in real property and any costs incidental thereto;

(iii) The cost of contract bonds and of insurance of all kinds that may be required or necessary during the course of the acquisition, construction, equipping, or installation of a project which is not paid by the vendor, supplier, delivery person, contractor or otherwise provided;

(iv) All costs of architectural and engineering services, including, but not limited to: Estimates, plans and specifications, preliminary investigations and supervision of construction, installation, as well as for the performance of all the duties required by or consequent to the acquisition, construction, equipping or installation of a project;

(v) All costs required to be paid under the terms of any contract for the acquisition, construction, equipping or installation of a project;

(vi) All costs required for the installation of utilities, including, but not limited to: Water, sewer, sewer treatment, gas, electricity, communications and off-site construction of utility extensions to the boundaries of the real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons; and

(vii) All other costs comparable with those described in this subdivision;

(b) Excluded costs. -- The term “approved costs” does not include any portion of the cost required to be paid for the acquisition, construction, equipping or installation of a project that is financed with governmental incentives, grants or bonds or for which the eligible taxpayer elects to qualify for other tax credits, including, but not limited to, those provided by article thirteen-q, chapter eleven of this code. The exclusion of certain costs of a project under this paragraph (b) does not automatically disqualify the remainder of the costs of the project.

(4) “Base tax revenue amount” means the average monthly amount of consumer sales and service tax collected by an approved company, based on the twelve-month period ending immediately prior to the opening of a new tourism development project for business or a tourism development expansion project, as certified by the State Tax Commissioner.

(5) “Development office” means the West Virginia Development Office as provided in article two of this chapter.

(6) “Crafts and products center” means a facility primarily devoted to the display, promotion and sale of West Virginia products and at which a minimum of eighty percent of the sales occurring at the facility are of West Virginia arts, crafts or agricultural products.

(7) “Eligible company” means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture or any other entity operating or intending to operate a project, whether owned or leased, within the state that meets the standards required by the development office. An eligible company may operate or intend to operate directly or indirectly through a lessee.

(8) “Ineligible company” means any West Virginia pari-mutuel racing facility licensed to operate multiple video lottery machines as authorized by article twenty-two-a, chapter twenty-nine of this code or any limited lottery retailer holding a valid license issued under article seven, chapter sixty of this code.

(9) “Entertainment destination center” means a facility containing a minimum of two hundred thousand square feet of building space adjacent or complementary to an existing tourism attraction, an approved project, or a major convention facility and which provides a variety of entertainment and leisure options that contain at least one major theme restaurant and at least three additional entertainment venues, including, but not limited to, live entertainment, multiplex theaters, large-format theaters, motion simulators, family entertainment centers, concert halls, virtual reality or other interactive games, museums, exhibitions or other cultural and leisure time activities. Entertainment and food and drink options shall occupy a minimum of sixty percent of total gross area, as defined in the application, available for lease and other retail stores shall occupy no more than forty percent of the total gross area available for lease.

(10) “Final approval” means the action taken by the executive director of the development office qualifying the eligible company to receive the tax credits provided in this article.

(11) “Project” means a tourism development project and/or a tourism development expansion project administered in accordance with the provisions of this article.

(12) "Qualified professional services destination facility" means a facility with a minimum qualified investment, as defined in this article, of not less than $80 million physically located in this state and adjacent or complementary to a historic resort hotel, which primarily furnishes and provides personal or professional services, or both types of services, to individuals who primarily are residents of another state or foreign county.

(13) “State agency” means any state administrative body, agency, department, division, board, commission or institution exercising any function of the state that is not a municipal corporation or political subdivision.

(14) "Tourism attraction" means a cultural or historical site, a recreation or entertainment facility, an area of natural phenomenon or scenic beauty, a West Virginia crafts and products center, or an entertainment destination center or a qualified professional services destination facility. A project or tourism attraction does not include any of the following:

(A) Lodging facility, unless:

(i) The facility constitutes a portion of a project and represents less than fifty percent of the total approved cost of the project, or the facility is to be located on recreational property owned or leased by the state or federal government and the facility has received prior approval from the appropriate state or federal agency;

(ii) The facility involves the restoration or rehabilitation of a structure that is listed individually in the national register of historic places or is located in a national register historic district and certified by the state historic preservation officer as contributing to the historic significance of the district and the rehabilitation or restoration project has been approved in advance by the state historic preservation officer; or

(iii) The facility involves the construction, reconstruction, restoration, rehabilitation or upgrade of a full-service lodging facility or the reconstruction, restoration, rehabilitation or upgrade of an existing structure into a full-service lodging facility having not less than five hundred guest rooms, with construction, reconstruction, restoration, rehabilitation or upgrade costs exceeding ten million dollars;

(B) A facility that is primarily devoted to the retail sale of goods, other than an entertainment destination center, a West Virginia crafts and products center or a project where the sale of goods is a secondary and subordinate component of the project; and

(C) A recreational facility that does not serve as a likely destination where individuals who are not residents of the state would remain overnight in commercial lodging at or near the project or existing attraction.

(15) “Tourism development project” means the acquisition, including the acquisition of real estate by a leasehold interest with a minimum term of ten years, construction and equipping of a tourism attraction; the construction and installation of improvements to facilities necessary or desirable for the acquisition, construction, installation of a tourism attraction, including, but not limited to, surveys, installation of utilities, which may include water, sewer, sewage treatment, gas, electricity, communications and similar facilities; and off-site construction of utility extensions to the boundaries of the real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons, but does not include a project that will be substantially owned, managed or controlled by an eligible company with an existing project located within a ten mile radius, or by a person or persons related by a family relationship, including spouses, parents, children or siblings, to an owner of an eligible company with an existing project located within a ten mile radius.

(16) “Tourism development expansion project” means the acquisition, including the acquisition of real estate by a leasehold interest with a minimum term of ten years; the construction and installation of improvements to facilities necessary or desirable for the expansion of an existing tourism attraction including, but not limited to, surveys, installation of utilities, which may include water, sewer, sewage treatment, gas, electricity, communications and similar facilities; and off-site construction of utility extension to the boundaries of real estate on which the facilities are located, all of which are to be used to improve the economic situation of the approved company in a manner that allows the approved company to attract persons.

(17) “Tourism development project tax credit” means the tourism development project tax credit allowed by section seven of this article.

(18) “Tourism development expansion project tax credit” means the tourism development expansion project tax credit allowed by section seven-a of this article.

§5B-2E-4. Additional powers and duties of the development office.

The development office has the following powers and duties, in addition to those set forth in this case, necessary to carry out the purposes of this article including, but not limited to:

(1) Make approval of all applications for projects and enter into agreements pertaining to projects with approved companies;

(2) Employ fiscal consultants, attorneys, appraisers and other agents as the executive director of the development office finds necessary or convenient for the preparation and administration of agreements and documents necessary or incidental to any project; and

(3) Impose and collect fees and charges in connection with any transaction.

(4) Impose and collect from the applicant a non-refundable application fee in the amount of $10,000 to be paid to the Development Office when the application is filed.

§5B-2E-5. Project application; evaluation standards; approval of projects.

(a) Each eligible company that seeks to qualify a project for the tourism development project tax credit provided by section seven of this article, or for the tourism development expansion project tax credit provided by section seven-a of this article, as applicable, must file a written application for approval of the project with the Development Office.

(b) With respect to each eligible company making an application to the Development Office for a tourism development project tax credit or a tourism development expansion project tax credit, the Development Office shall make inquiries and request documentation, including a completed application, from the applicant that shall include: A description and location of the project; capital and other anticipated expenditures for the project and the sources of funding therefor; the anticipated employment and wages to be paid at the project; business plans that indicate the average number of days in a year in which the project will be in operation and open to the public; and the anticipated revenues and expenses generated by the project.

(c) On and after the effective date of this section as amended in 2014, the executive director of the Development Office, within sixty days following receipt of an application or receipt of any additional information requested by the Development Office respecting the application, whichever is later, shall act to grant or not to grant approval of the application, based on the following criteria:

(1) The project will attract at least twenty-five percent of its visitors from outside of this state;

(2) The project will have approved costs in excess of $1,000,000;

(3) The project will have a significant and positive economic impact on the state considering, among other factors, the extent to which the project will compete directly with or complement existing tourism attractions in the state and the amount by which increased tax revenues from the project will exceed the credit given to the approved company;

(4) The project will produce sufficient revenues and public demand to be operating and open to the public for a minimum of one hundred days per year;

(5) The project will provide additional employment opportunities in the state;

(6) The quality of the proposed project and how it addresses economic problems in the area in which the project will be located;

(7) Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion;

(8) Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses;

(9) Whether the project will, directly or indirectly, assist in the creation of additional employment opportunities in the area where the project will be located;

(10) Whether the project helps to diversify the local economy;

(11) Whether the project is consistent with the goals of this article;

(12) Whether the project is economically and fiscally sound using recognized business standards of finance and accounting; and

(13) The ability of the eligible company to carry out the project.

(d) The Development Office may establish other criteria for consideration when approving the applications.

(e) The decision by the executive director of the Development Office is final.

(f)This section as amended and reenacted in 2014 shall apply to applications under review by the director of the development office prior to the effective date of this section as well as to applications filed on and after the effective date of this section as amended and reenacted in 2014.

§5B-2E-6. Agreement between Development Office and approved company.

The Development Office, upon final approval of an application by the executive director, may enter into an agreement with any approved company with respect to its project. The terms and provisions of each agreement shall include, but not be limited to:

(1) The amount of approved costs of the project that qualify for a sales tax credit, as provided in section seven or section seven-a of this article, as applicable. Within three months of the completion date, the approved company shall document the actual cost of the project through a certification of the costs to the Development Office by an independent certified public accountant acceptable to the Development Office; and

(2) A date certain by which the approved company shall have completed and opened the project to the public. Any approved company that has received final approval may request and the Development Office may grant an extension or change, however, in no event shall the extension exceed three years from the date of final approval to the completion date specified in the agreement with the approved company.

§5B-2E-7. Amount of credit allowed for tourism development project; approved projects.

(a) Approved companies are allowed a credit against the West Virginia consumers sales and service tax imposed by article fifteen, chapter eleven of this code and collected by the approved company on sales generated by or arising from the operations of the tourism development project: Provided, That if the consumers sales and service tax collected by the approved company is not solely attributable to sales resulting from the operation of the new tourism development project, the credit shall only be applied against that portion of the consumers sales and service tax collected in excess of the base tax revenue amount. The amount of this credit is determined and applied as provided in this article.

(b) The maximum amount of credit allowable in this article is equal to twenty-five percent of the approved company's approved costs as provided in the agreement: Provided, That, if the tourism development project site is located within the permit area or an adjacent area of a surface mining operation, as these terms are defined in section three, article three, chapter twenty-two of this code, from which all coal has been or will be extracted prior to the commencement of the tourism development project, or the tourism development project site is located on or adjacent to recreational property owned or leased by the state or federal government and when the project is located on property owned or leased by the state or federal government, the project has received prior approval from the appropriate state or federal agency, the maximum amount of credit allowable is equal to thirty-five percent of the approved company's approved costs as provided in the agreement.

(c) The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the project is opened to the public, unless the approved company elects to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the first consumers sales and service tax return filed by the approved company following the date the project is opened to the public. Once made, the election cannot be revoked.

(d) The amount determined under subsection (b) of this section is allowed as a credit against the consumers sales and service tax collected by the approved company on sales from the operation of the tourism development project. The amount determined under said subsection may be used as a credit against taxes required to be remitted on the approved company's monthly consumers sales and service tax returns that are filed pursuant to section sixteen, article fifteen, chapter eleven of this code. The approved company shall claim the credit by reducing the amount of consumers sales and service tax required to be remitted with its monthly consumers sales and service tax returns by the amount of its aggregate annual credit allowance until such time as the full current year annual credit allowance has been claimed. Once the total credit claimed for the tax year equals the approved company's aggregate annual credit allowance no further reductions to its monthly consumers sales and service tax returns will be permitted.

(e) If any credit remains after application of subsection (d) of this section, the amount of credit is carried forward to each ensuing tax year until used or until the expiration of the third taxable year subsequent to the end of the initial ten-year credit application period. If any unused credit remains after the thirteenth year, that amount is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

§5B-2E-7a. Amount of credit allowed for tourism development expansion project; approved projects.

(a) Approved companies are allowed a credit against the West Virginia consumers sales and service tax imposed by article fifteen, chapter eleven of this code and collected by the approved company on sales generated by or arising from the operations of the tourism development expansion project: Provided, That the tourism development expansion project tax credit allowed under this section is separate and distinct from any credit allowed for a tourism development project in accordance with the provisions of section seven of this article: Provided, however, That if the consumers sales and service tax collected by the approved company is not solely attributable to sales resulting from the operation of the tourism development expansion project, the credit shall only be applied against that portion of the consumers sales and service tax collected in excess of the base tax revenue amount. The amount of this credit is determined and applied as provided in this article.

(b) The maximum amount of credit allowable in this article is equal to twenty-five percent of the approved company's approved costs as provided in the agreement: Provided, That, if the tourism development expansion project site is located within the permit area or an adjacent area of a surface mining operation, as these terms are defined in section three, article three, chapter twenty-two of this code, from which all coal has been or will be extracted prior to the commencement of the tourism development project, or the tourism development project site is located on or adjacent to recreational property owned or leased by the state or federal government and when the project is located on property owned or leased by the state or federal government, the project has received prior approval from the appropriate state or federal agency, the maximum amount of credit allowable is equal to thirty-five percent of the approved company's approved costs as provided in the agreement.

(c) The amount of credit allowable must be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the project is opened to the public, unless the approved company elects to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the first consumers sales and service tax return filed by the approved company following the date the project is opened to the public. Once made, the election cannot be revoked.

(d) The amount determined under subsection (b) of this section is allowed as a credit against the consumers sales and service tax collected by the approved company on sales from the operation of the tourism development expansion project. The amount determined under said subsection may be used as a credit against taxes required to be remitted on the approved company's monthly consumers sales and service tax returns that are filed pursuant to section sixteen, article fifteen, chapter eleven of this code. The approved company shall claim the credit by reducing the amount of consumers sales and service tax required to be remitted with its monthly consumers sales and service tax returns by the amount of its aggregate annual credit allowance until such time as the full current year annual credit allowance has been claimed. Once the total credit claimed for the tax year equals the approved company's aggregate annual credit allowance no further reductions to its monthly consumers sales and service tax returns will be permitted.

(e) If any credit remains after application of subsection (d) of this section, the amount of credit is carried forward to each ensuing tax year until used or until the expiration of the third taxable year subsequent to the end of the initial ten-year credit application period. If any unused credit remains after the thirteenth year, that amount is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

§5B-2E-7b. Credit against taxes.

(a) General. – When a qualified professional services destination facility is located at or adjacent to an existing historic resort hotel with at least five hundred rooms and the qualified professional services destination facility eligible for credit under this section is primarily engaged in furnishing services that are not subject to the tax imposed by article fifteen, chapter eleven of this code, then in lieu of the credits that otherwise would be allowable under section seven or seven-a of this article, the eligible company that complies with the requirements of this section may claim the credit provided in this section: Provided, That the maximum amount of credit allowable under this section is equal to twenty-five percent of the eligible company's qualified investment, as defined in this section.

(b) Definitions. – The following words and phrases when used in this section have the meanings given to them in this subsection unless the context in which used clearly indicates that a different meaning was intended by the Legislature.

(1) “Agreement” means an agreement entered into under subsection (g) of this section.

(2) “Compensation” means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

(3) “Cost-of-living adjustment” for any calendar year is the percentage, if any, by which the consumer price index for the preceding calendar year exceeds the consumer price index for the calendar year 2015.

(4) “Consumer price index” for any calendar year means the average of the federal consumer price index as of the close of the twelve-month period ending on August 31 of that calendar year.

(5) “Eligible company” for purposes of this section means any corporation, limited liability company, partnership, limited liability partnership, sole proprietorship, business trust, joint venture or any other entity operating a qualified professional services destination facility, whether owned or leased, within the state that: (A) creates at least one hundred twenty-five new jobs in this state within thirty-six months after the date the qualified investment is placed into service or use, and maintains those jobs for the entire ten year life of the tax credit specified in this section, (B) makes available to its full-time employees health insurance coverage and pays at least fifty percent of the premium for the health insurance, (C) generates, within thirty-six months after the date the qualified investment is placed into service or use, not less than $10 million of gross receipts upon which the taxes imposed under article twenty-seven, chapter eleven of this code are paid, and (D) meets the standards, limitations and requirements of this section and of the development office. An eligible company may operate or intend to operate directly or indirectly through a lessee or a contract operator.

(6) “Federal consumer price index” means the most recent consumer price index as of August 31 each year for all urban consumers published by the United States Department of Labor.

(7) “Health insurance benefits” means employer-provided coverage for medical expenses of the employee or the employee and his or her family under a group accident or health plan, or employer contributions to an Archer medical savings account, as defined in Section 220 of the Internal Revenue Code of 1986, as amended, or to a health savings account, as defined in Section 223 of the Internal Revenue Code, of the employee when the employer's contribution to any such account is not less than fifty percent of the maximum amount permitted for the year as employer-provided coverage under Section 220 or 223 of the Internal Revenue Code, whichever section is applicable.

(8) “Historic resort hotel” means a resort hotel registered with the United States Department of the Interior on the effective date of this amendment as a national historic landmark in its National Registry of Historic Places having not fewer than five hundred guest rooms.

(9) “New employee” means a person residing and domiciled in this state hired by the taxpayer to fill a position or a job in this state which previously did not exist in the taxpayer's business enterprise in this state prior to the date the application was filed under subsection (c) of this section. In no event may the number of new employees exceed the total net increase in the employer's employment in this state: Provided, That the Tax Commissioner may require that the net increase in the taxpayer's employment in this state be determined and certified for the taxpayer's controlled group as defined in article twenty-four of this chapter. In addition, a person is a “new employee” only if the person's duties are on a regular, full-time and permanent basis:

(A) “Full-time employment” means employment for at least eighty hours per month at a wage not less than the amount specified in subdivision (1), subsection (d) of this section; and

(B) “Permanent employment” does not include employment that is temporary or seasonal and therefore the wages, salaries and other compensation paid to the temporary or seasonal employees will not be considered for purposes of this section even if the compensation paid to the temporary or seasonal employee equals or exceeds the amount specified in paragraph (A) of this subdivision.

(10) “New job” means a job which did not exist in the business of the taxpayer in this state prior to filing the application for benefits under this section, and which is filled by a new employee.

(11) “Professional services” means only those services provided directly by: a physician licensed to practice in this State, a surgeon licensed to practice in this State, a dentist licensed to practice in this State, a podiatrist licensed to practice in this State, an osteopathic physician licensed to practice in this State, a psychologist licensed to practice in this State, an optometrist licensed to practice in this State, a registered nurse licensed to practice in this State, a physician assistant licensed to practice in this State, a licensed practical nurse licensed to practice in this State, a dental hygienist licensed to practice in this State, a social worker licensed to practice in this State, or any other health care professional licensed to practice in this State;

(12) "Qualified investment" means one-hundred percent of the cost of property purchased or leased for the construction and equipping of a qualified professional services destination facility which is placed in service or use in this State by an eligible company.

(A) The cost of property purchased for a qualified professional services destination facility is determined under the following rules:

(i) Cost does not include the value of property given in trade or exchange for the property purchased for business expansion.

(ii) If property is damaged or destroyed by fire, flood, storm or other casualty, or is stolen, then the cost of replacement property does not include any insurance proceeds received in compensation for the loss.

(iii) The cost of real property acquired by written lease for a primary term of ten years or longer is one hundred percent of the rent reserved for the primary term of the lease, not to exceed ten years.

(iv) The cost of tangible personal property acquired by written lease for a primary term of not less than four years.

(v) In the case of self-constructed property, the cost thereof is the amount properly charged to the capital account for depreciation in accordance with federal income tax law.

(vi) The cost of property used by the taxpayer out-of-state and then brought into this State, is determined based on the remaining useful life of the property at the time it is placed in service or use in this State, and the cost is the original cost of the property to the taxpayer less straight line depreciation allowable for the tax years or portions thereof the taxpayer used the property outside this State. In the case of leased tangible personal property, cost is based on the period remaining in the primary term of the lease after the property is brought into this State for use in a new or expanded business facility of the taxpayer, and is the rent reserved for the remaining period of the primary term of the lease, not to exceed ten years, or the remaining useful life of the property, determined as aforesaid, whichever is less.

(c) Credit against taxes. – The credit allowed by this section shall be equal to twenty-five percent of the eligible company's qualified investment in the qualified professional services destination facility and shall be taken and applied as provided in this subsection (c). Notwithstanding any other provision of this article to the contrary, no taxpayer or group of taxpayers may gain entitlement to more than $37.5 million total aggregate tax credit under this section and no taxpayer, or group of taxpayers, in the aggregate may apply more than $2.5 million of annual credit in any tax year under this section, either in the form of a refund or directly against a tax liability or in any combination thereof. This limitation applies to initial tax credit attributable to qualified investment in a qualified professional services destination facility, and to qualified investment in a follow-up project expansion, so that credit attributable additively and in the aggregate to both may not be applied to exceed $2.5 million annual credit in any tax year.

(1) Application of credit. – The amount of credit allowable under this subsection shall be taken over a ten-year period, at the rate of one tenth of the amount thereof per taxable year, beginning with the taxable year in which the eligible company places the qualified professional services destination facility, or part thereof, in service or use in this state, unless the eligible company elected to delay the beginning of the ten-year period until the next succeeding taxable year. This election shall be made in the annual income tax return filed under chapter eleven of this code for the taxable year in which the qualified professional services destination facility is first placed into service or use by the taxpayer. Once made, the election may not be revoked. The annual credit allowance is taken in the manner prescribed in subdivision (3) of this subsection (c): Provided, That if any credit remains after the initial ten year credit application period, the amount of remaining credit is carried forward to each ensuing tax year until used or until the expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period. If any unused credit remains after expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period, the amount thereof is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of any annual credit allowance.

(2) Placed in service or use. – For purposes of the credit allowed by this subsection (c), qualified investment or qualified investment property is considered placed in service or use in the earlier of the following taxable years:

(A) The taxable year in which, under the eligible company's depreciation practice, the period for depreciation with respect to the property begins; or

(B) The taxable year in which the property is placed in a condition or state of readiness and availability for a specifically assigned function.

(3) Application of annual credit allowance.

(A) In general.- The aggregate annual credit allowance for the current taxable year is an amount equal to the one-tenth part allowed under subdivision (1) of this subsection for qualified investment placed into service or use.

(B) Application of current year annual credit allowance. – The amount determined under this subsection (c) is allowed as a credit against one hundred percent of the eligible company's state tax liabilities applied as provided in paragraphs (C) and (D) of this subdivision (3), and in that order:

(C) Corporation net income taxes. - The amount of allowable tax credit for the year determined under paragraph (A) of this subdivision (3) shall first be applied to reduce the taxes imposed by article twenty-four, chapter eleven of this code, for the taxable year determined before application of allowable credits against tax.

(D) Personal income taxes. –

(i) If the eligible company is an electing small business corporation, as defined in section 1361 of the United States Internal Revenue Code of 1986, as amended, a partnership, a limited liability company that is treated as a partnership for federal income tax purposes or a sole proprietorship, then any unused credit after application of paragraph (C) of this subdivision (3) is allowed as a credit against the taxes imposed by article twenty-one, chapter eleven of this code on the members, owners, partners or interest holders in the eligible company.

(ii) Electing small business corporations, limited liability companies, partnerships and other unincorporated organizations shall allocate the credit allowed by this article among their members in the same manner as profits and losses are allocated for the taxable year.

(E) No credit is allowed under this subdivision (3) against any employer withholding taxes imposed by article twenty-one, chapter eleven of this code.

(F) The tax credits allowed under articles thirteen-j, thirteen-q, thirteen-s, thirteen-r, thirteen-w, and thirteen-aa of this code may not be applied to offset any tax against which the tax credit allowed under this article is allowed or authorized. No person, entity, company, or eligible company authorized or entitled to any tax credit allowed under this section or any member of the unitary group or any member of the controlled group of which the taxpayer is a member, may gain entitlement to any other economic development tax credit or economic development tax incentive which relates to the investment or activity upon which the credit authorized under this section is based.

(G) (i) In order to effectuate the purposes of this subdivision (3), the Tax Commissioner may propose for promulgation rules, including emergency rules, in accordance with article three, chapter twenty-nine-a of this code.

(ii) The Tax Commissioner may apply any amount of the tax credit otherwise available to a Taxpayer under this article, to pay any delinquent West Virginia state tax liability of the taxpayer, and interest and penalties as applicable.

(iii) Any amount of the tax credit otherwise available to a taxpayer under this article may be applied by the applicable administering agency to pay any outstanding obligation to a Workers' Compensation Fund, as defined in article two-c of chapter twenty-three of this code, or any outstanding obligation under the West Virginia Unemployment Compensation Act.

(iv) Any amount of the tax credit otherwise available to a taxpayer under this article, may be applied by the applicable administering agency to pay any delinquent or unpaid assessment, fee, fine, civil penalty or monetary imposition imposed by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations.

(H) Unused credit, refundable credit. – If any annual credit remains after application of preceding paragraphs of this subdivision (3), the amount thereof shall be refunded annually to the eligible company, and distributed in accordance with the credit distribution specified in this subdivision (3): Provided, That the amount thereof may not exceed the limitation on annual tax credit or the limitation on total aggregate tax credit specified in this section.

(I) Forfeiture of credit. - If any credit remains after expiration of the fifth taxable year subsequent to the end of the initial ten year credit application period, such credit is forfeited, and may not be used to offset any West Virginia tax liability.

(d) Compensation of employees filling new jobs.

(1) The new jobs and new employee criteria which count toward qualification of a taxpayer as an eligible company for purposes of the tax credit allowed by this section shall be subject to the following limitations and requirements. A job counts toward qualification of a taxpayer as an eligible company if the job is a new job, as defined in this section, held by a new employee, as defined in this section, and the new job:

(A) Pays a median wage of at least $37,000 annually. Beginning January 1, 2015, and on January 1 of each year thereafter, the Tax Commissioner shall prescribe an amount that shall apply in lieu of the $37,000 amount for new jobs filled during that calendar year. This amount is prescribed by increasing the $37,000 figure by the cost-of-living adjustment for that calendar year. If any increase under this subdivision is not a multiple of $50, the increase shall be rounded to the next lowest multiple of $50;

(B) Provides health insurance. The employer may, in addition, offer benefits including child care, retirement and other benefits; and

(C) Is a full-time, permanent position, as those terms are defined in this section.

(D) Jobs that pay less than the statewide average nonfarm payroll wage, as determined annually by the West Virginia Bureau of Employment Programs, or that pay that salary, but do not also provide health benefits in addition to the salary, do not count toward qualification of a taxpayer as an eligible company under this section. Jobs that are less than full-time, permanent positions do not count toward qualification of a taxpayer as an eligible company under this section.

(E) The employer having obtained qualification as an eligible company under this section for the year in which the new job is filled is not required to raise wages of the employees currently employed in the new jobs upon which the initial qualification as an eligible company under this section was based by reason of the cost-of-living adjustment for new jobs filled in subsequent years provided the employer continues to provide healthcare.

(e) Application and review.

(1) Application. - An eligible company that meets the requirements of this section may apply to the Development Office for entitlement to the tax credit authorized under this section. The application shall be on a form prescribed by the Development Office and shall include all of the following:

(A) The name and address of the applicant;

(B) Documentation that the applicant is a eligible company;

(C) Documentation that the applicant meets the requirements of this section;

(D) Documentation that the applicant does not owe any delinquent taxes or any other amounts to the federal government, this state or any political subdivision of this state;

(E) An affidavit that the applicant has not filed for or publicly announced its intention to file for bankruptcy protection and that the company will not seek bankruptcy protection within the next six calendar months following the date of the application;

(F) A waiver of confidentiality under section five-d, article ten, chapter eleven of this code for information provided in the application; and

(G) Any other information required by the Development Office.

(f) Credit allowable.

(1) Certified multiple year projects.

(A) In general. - A multiple year qualified professional services destination facility project certified by the West Virginia Development Office is eligible for the credit allowable by this article. A project eligible for certification under this section is one where the qualified investment under this article creates at least the required minimum number of new jobs but the qualified investment is placed in service or use over a period of up to three successive tax years: Provided, That the qualified investment is made pursuant to a written business facility development plan of the taxpayer providing for an integrated project for investment at one or more new or expanded business facilities, a copy of which must be attached to the taxpayer's application for project certification and approved by the West Virginia Development Office, and the qualified investment placed in service or use during the first tax year would not have been made without the expectation of making the qualified investment placed in service or use during the next two succeeding tax years.

(B) Application for certification. - The application for certification of a project under this section shall be filed with and approved by the West Virginia Development Office prior to any credit being claimed or allowed for the project's qualified investment and new jobs created as a direct result of the qualified investment. This application shall be approved in writing and contain the information as the West Virginia Development Office may require to determine whether the project should be certified as eligible for credit under this article.

(C) Review. - Within thirty days of receipt of a complete application, the Development Office, in conjunction with the Tax Division of the Department of Revenue, shall review the application and determine if the applicant is an eligible company and that the requirements of this section have been met. Applications not approved within the thirty days specified in this subdivision are hereby deemed denied.

(D) Approval. - The Development Office may approve or deny the application. Upon approval of an application, the Development Office shall notify the applicant in writing and enter into an agreement with the eligible company for benefits under this section.

(2) Certified follow-up project expansions.

(A) An eligible company that intends to undertake a follow-up project expansion, may apply to the West Virginia Development Office for certification of a single, one-time, follow-up project expansion, and entitlement to an additional tax credit under this section in an amount which is the lesser of twenty-five percent of qualified investment in the follow-up project expansion or $12.5 million. No taxpayer, or group of taxpayers, in the aggregate may apply more than $2.5 million of annual credit in any tax year under this section, either in the form of a refund or directly against a tax liability or in any combination thereof. This limitation applies to initial tax credit attributable to qualified investment in a qualified professional services destination facility, and to qualified investment in a follow-up project expansion, so that credit attributable additively and in the aggregate to both may not be applied to exceed $2.5 million annual credit in any tax year.

(B) The requirements, limitations and qualifications applicable to qualified professional services destination facility projects under this section apply to follow-up project expansions, except for those requirements, limitations and qualifications expressly specified in this subdivision (2).

(C) Requirements for certification of a follow-up project expansion are as follows:

(i) The eligible company, pursuant to certification and authorization for entitlement to tax credit under subsection (1) of this section (f), has placed qualified investment of not less than $80 million into service in a qualified professional services destination facility within an initial period of not more than three tax years;

(ii) The eligible company intends to place additional qualified investment in service or use in the previously certified qualified professional services destination facility project, or an expansion or extension thereof. In no case shall a follow-up project expansion be certified if the follow-up project expansion property is not contiguous to, or within not more than one mile of, the initial qualified professional services destination facility;

(iii) The eligible company proposes to place the qualified investment in the follow-up project expansion in service or use in the fourth tax year subsequent to the tax year in which qualified investment was first placed into service or use in the initial qualified professional services destination facility project, or under a multiple year project certification, in the fourth, fifth and sixth tax year subsequent to the tax year in which qualified investment was first placed into service or use in the initial qualified professional services destination facility project;

(iv) The follow-up project expansion must create and maintain at least twenty-five net new jobs held by new employees, in addition to the new jobs created by the initial qualified professional services destination facility project. The loss of any West Virginia job at the eligible company will be subtracted from the count of new jobs attributable to the follow-up project expansion;

(v) The West Virginia Development Office shall not issue more than one certification for any follow-up project expansion; and

(vi) The West Virginia Development Office shall not issue certification of a follow-up project expansion unless the applicant provides convincing evidence to show that the follow-up project expansion will result in jobs creation specified in this subdivision, that such jobs will remain and be maintained in West Virginia for at least ten years subsequent to the placement of qualified investment into service or use in the follow-up project expansion, that the follow-up project expansion will not operate to the detriment of other West Virginia businesses or to the detriment of the economy, public welfare or moral character of West Virginia or its people.

(g) Agreement.

(1) The agreement between the eligible company and the Development Office shall be entered into before any benefits may be provided under this section.

(2) The agreement shall do all of the following:

(A) Specify the terms and conditions the eligible company must comply with in order to receive benefits under this section, other than those terms, limitations and conditions specified and mandated by statute or regulation; and

(B) Require the Development Office to certify all of the following to the Tax Division of the Department of Revenue each taxable year an agreement under this section is in effect:

(i) That the eligible company is eligible to receive benefits under this section;

(ii) The number of new jobs created by the company during each taxable year;

(iii) The amount of gross wages, as determined for purposes of Form W2, as filed with the Internal Revenue Service, being paid to each individual employed in a new job;

(iv) The amount of an eligible company's qualified investment;

(v) The maximum amount of credit allowable to the eligible company under this section; and

(vi) Any other information deemed necessary by the Development Office.

(h) Filing and contents.

(1) Filing. – On or before the due date of the income tax return for each tax year in which the agreement is in effect, an eligible company shall file with the Tax Division of the Department of Revenue a form prescribed by the Tax Commissioner.

(2) Contents. - The form specified under subdivision (1) of this subsection (h) shall request the following information:

(A) The name and Employer Identification Number of the eligible company;

(B) The effective date of the agreement;

(C) The reporting period end date;

(D) Information relating to each individual employed in a new job as required by the Tax Commissioner;

(E) Aggregate gross receipts for the tax period and gross receipts on which tax has been paid under article twenty-seven, chapter eleven of this code for the tax period; and

(F) Any other information required by the Tax Commissioner.

(3) Taking of credit. - The taxpayer, participant or participants claiming the credit for qualified investments in a certified project shall annually file with their income tax returns filed under chapter eleven of this code:

(A) Certification that the taxpayer's or participant's qualified investment property continues to be used in the project and if disposed of during the tax year, was not disposed of prior to expiration of its useful life;

(B) Certification that the new jobs created by the project's qualified investment continue to exist and are filled by persons who are residents of this State; and

(C) Any other information the Tax Commissioner requires to determine continuing eligibility to claim the annual credit allowance for the project's qualified investment.

(4) Confidentiality.- The contents of the completed form shall be subject to the confidentiality rules set forth in section five-d, article ten, chapter eleven of this code: Provided, That notwithstanding the provisions of section five-d, article ten, chapter eleven of this code, or any other provision of this code, tax returns, tax return information and such other information as may be necessary to administer the tax credits and programs authorized and specified by this article and in this section may be exchanged between the Tax Commissioner and the West Virginia Development Office without restriction.

§5B-2E-8. Forfeiture of unused tax credits; credit recapture; recapture tax imposed; information required to be submitted annually to development office; transfer of tax credits to successors.

(a) The approved company or eligible company shall forfeit the tourism development project tax credit allowed by section seven of this article, or the tourism development expansion tax credit allowed by section seven-a of this article, or the tax credit allowed by section seven-b of this article, as applicable, with respect to any calendar year and shall pay the recapture tax imposed by subsection (b) of this section, if:

(1) In any year following the first calendar year the project is open to the public, the project fails to attract at least twenty-five percent of its visitors from among persons who are not residents of the state;

(2) In any year following the first year the project is open to the public, the project is not operating and open to the public for at least one hundred days; or

(3) The approved company or eligible company, as of the beginning of each calendar year, has an outstanding obligation under the West Virginia state tax and revenue laws; or

(4) Any company, approved company or eligible company, to which entitlement to the tax credit authorized under section seven-b of this article has been previously established, fails to meet the requirements specified in section seven-b for an eligible company and for a qualified professional services destination facility, including, but not limited to, jobs maintenance, employee wage and employee health benefits, aggregate gross receipts, and gross receipts subject to the tax imposed under article twenty-seven, chapter eleven of this code.

(5) Any company, approved company or eligible company, to which entitlement to the tax credit authorized under section seven-b of this article has been previously established:

(A) Is delinquent in payment of any assessment, fee, fine, civil penalty or monetary imposition imposed by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations.

(B) Is delinquent in compliance with any order, injunction, compliance agreement, agreed order, court order, mandamus or other enforcement or compliance instrumentality of the West Virginia Division of Environmental Protection or United States Environmental Protection Agency or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations.

(C) Is out of compliance or not compliant with any citation or order issued by the West Virginia Division of Environmental Protection or the United States Environmental Protection Agency, or any agency charged with enforcing federal, state or local environmental or hazardous waste regulations, requiring that a condition be abated or corrected.

(b) In addition to the loss of credit allowed under this article for the calendar year, a credit recapture tax is hereby imposed on any approved company or successor eligible company that forfeits the tourism development project tax credit or the tourism development expansion project credit or the credit authorized under section seven-b of this article, under the provisions of subsection (a) of this section. The credit recapture tax shall apply and the approved company, and successor eligible companies, and any other person or entity that has received the tax credit allowed under this article shall be liable for an amount of recapture tax equal to all previously claimed tourism development project tax credit or tourism development expansion project credit, or the tax credits authorized under section seven-b of this article, and allowed by this article, as applicable, plus interest and penalties applicable in accordance with the Tax Procedure and Administration Act. The recapture tax shall be calculated and paid pursuant to the filing, with the Tax Commissioner of an amended return, and such other forms, schedules and documents as the Tax Commissioner may require, for the prior calendar year, or calendar years, for which credit recapture is required, along with interest, as provided in section seventeen, article ten, chapter eleven of this code: Provided, That the approved company, eligible company, person or entity who previously claimed the tourism development project tax credit, or the tourism development expansion project credit, or the tax credits allowed by section seven-b of this article, as applicable, under this article and successor eligible companies, persons or entities are jointly and severally liable for payment of any recapture tax subsequently imposed under this section. For purposes of this recapture tax, the statute of limitations otherwise applicable under the Tax Procedure and Administration Act shall not begin to run until the eighteenth year subsequent to the earlier of: the year when qualified investment is first placed into service or use, or the year when the application for the tax credit authorized under this article was filed with the West Virginia Development Office.

(c) Within forty-five days after the end of each calendar year during the term of the agreement, the approved company shall supply the development office with all reports and certifications the development office requires demonstrating to the satisfaction of the development office that the approved company is in compliance with applicable provisions of law. Based upon a review of these materials and other documents that are available, the development office shall then certify to the Tax Commissioner that the approved company is in compliance with this section.

(d) The tax credit allowed in this article is transferable, subject to the written consent of the development office, to an eligible successor company that continues to operate the approved project.

§5B-2E-9. Promulgation of rules.

The executive director of the Development Office may promulgate rules to implement the project application approval process and to describe the criteria and procedures it has established in connection therewith. These rules are not subject to the provisions of chapter twenty-nine-a of this code but shall be filed with the Secretary of State.

§5B-2E-10. Legislative review.

The Development Office shall report annually to the Joint Commission on Economic Development by December 1 of each year on the number of applications received from eligible companies as provided in this article, the identity of each eligible company, whether the eligible company is seeking the tourism development project credit or the tourism development expansion project credit, or both, a description of the tourism development projects to which the credit may be applied, the status of each application, the number of projects approved, the status of each project, whether the projects are certified multiple year projects, the amount of credit allowed, and the amount of consumers sales and service tax generated by each project.

§5B-2E-11. Termination.

The development office may not accept any new project application after December 31, 2025, and all applications submitted prior to January 1, 2026, that have not been previously approved or not approved, shall be deemed not approved and shall be null and void as of January 1, 2026.

ARTICLE 2F. DIVISION OF ENERGY.

§5B-2F-1. Short title.

This chapter shall be known and cited as the West Virginia Energy Policy and Development Act.

§5B-2F-2. Purpose; Office of Energy; office to develop energy policy and development plan; contents of energy policy and development plan; and office to promote energy initiatives.

(a) Effective July 1, 2017, the Division of Energy is hereby continued, but shall be designated and known as the Office of Energy, and shall be organized within the Development Office of the Department of Commerce. All references throughout this code to the Division of Energy shall be construed to refer to the Office of Energy. The office may receive federal funds.

(b) The office is intended to provide leadership for developing energy policies emphasizing the increased efficiency of energy use, the increased development and production of new and existing domestic energy sources, the increased awareness of energy use on the environment and the economy, dependable, efficient and economical statewide energy systems capable of supporting the needs of the state, increased energy self-sufficiency where the ratio of indigenous to imported energy use is increased, reduce the ratio energy consumption to economic activity and maintain low-cost energy. The energy policies and development plans shall also provide direction for the private sector.

(c) The office shall have authority over the energy efficiency program existing under the West Virginia Development Office.

(d) The office shall develop an energy policy and shall report the same back to the Governor and the Joint Committee on Government and Finance before December 1, 2007. The energy policy shall be a five-year plan setting forth the state’s energy policies and shall provide a direction for the private sector. Prior to the expiration of the energy policy, the office shall begin review of the policy and submit a revised energy policy to the Governor and the Joint Committee on Government and Finance six months before the expiration of the policy.

 (e) The office shall prepare and submit an annual energy development plan to the Governor and the Joint Committee on Government and Finance on or before December 1 of each year. The development plan shall relate to the office’s implementation of the energy policy and the activities of the office during the previous year. The development plan shall include any recommended legislation. The Public Energy Authority, the Office of Coalfield Community Development, the energy efficiency program, the Department of Environmental Protection and the Public Service Commission, in addition to their other duties prescribed by this code, shall assist the office in the development of an energy policy and related development plans. The energy development plan shall set forth the plans for implementing the state’s energy policy and shall provide a direction for the private sector. The energy development plan shall recognize the powers of the Public Energy Authority as to development and financing of projects under its jurisdiction and shall make such recommendations as are reasonable and practicable for the exercise of such powers.

(f) The office shall hold public hearings and meetings with notice to receive public input regarding proposed energy policies and development plans. The energy policy and development plans required by subsections (d) and  (e) of this section shall address increased efficiency of energy use, traditional and alternative energy, water as a resource and a component of energy production, energy distribution systems, the siting of energy facilities, the increased development and production of new and existing domestic energy sources, increased awareness of energy use on the environment and the economy, energy infrastructure, the development and implementation of renewable, clean, technically innovative and advanced energy projects in this state. Projects may include, without limitation, solar and wind energy, low-impact hydro power, geothermal, biomass, landfill gas, fuel cells, renewable hydrogen fuel technologies, waste coal, coal mine methane, coal gasification to ultraclean fuels, solid waste to fuel grade ethanol and coal liquefaction technologies.

(g) The office may propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code designed to implement an energy policy and development plan in accordance with the provisions of this chapter.

(h) The energy policy and development plans required by subsections (d) and (e) of this section shall identify and report on the energy infrastructure in this state and include without limitation energy infrastructure related to protecting the state’s essential data, information systems and critical government services in times of emergency, inoperativeness or disaster. In consultation with the Director of the Division of Homeland Security and Emergency Management, the office shall encourage the development of energy infrastructure and strategic resources that will ensure the continuity of governmental operations in situations of emergency, inoperativeness or disaster.

(i) In preparing or revising the energy policy and development plan, the office may rely upon internal staff reports or the advice of outside advisors or consultants and may procure such services with the consent of the Secretary of Commerce. The office may also involve national, state and local government leadership and energy experts.

(j) The office shall prepare an energy use database, including without limitation, end-use applications and infrastructure needs for different classes of energy users including residential, commercial and industrial users, data regarding the interdependencies and sources of electricity, oil, coal, water and gas infrastructure, data regarding energy use of schools and state-owned facilities and collect data on the impact of the energy policy and development plan on the decisions and strategies of energy users of the state.

(k) The office shall promote collaboration between the state’s universities and colleges, private industry and nonprofit organizations to encourage energy research and leverage available federal energy research and development resources.

(l) The office shall promote initiatives to enhance the nation’s energy security through research and development directed at transforming the state’s energy resources into the resources that fuel the nation.

(m) The office shall work with the President of the United States and his or her administration to develop a plan that would allow West Virginia to become the leader in transitioning the United States to a new energy future.

(n) The office is to determine the best way for West Virginia to utilize its resources and any federal funding to develop the technologies that are necessary for such a transition.

(o) The office is to clearly articulate West Virginia’s position on an energy solution for the United States that encompasses clean coal, natural gas, transtech energy technologies and renewable energy technologies.

(p) The office shall develop and distribute an informational program and policies that emphasize the importance of West Virginia energy resources and their positive impact on the eastern seaboard and the nation.

(q) The office shall monitor legal challenges to the energy industries in the state and submit a report quarterly to the Joint Committee on Government and Finance. The report shall contain information relating to any litigation that challenges any statute that could affect the production, distribution and utilization of natural resources of the state.

ARTICLE 2G. LAND CONSERVATION.

§5B-2G-1. Short title.

This article shall be known as the Voluntary Rural and Outdoor Heritage Conservation Act.

§5B-2G-2. Legislative findings and purpose.

Legislative findings and purpose:

(a) The Legislature hereby finds and declares that:

(1) The State of West Virginia's rural character, natural wonders, scenic beauty and recreational opportunities combine to create an exceptional quality of life for its citizens;

(2) West Virginia's landscapes serve as an economic engine supporting vibrant forest products, agricultural, hunting and fishing and tourism industries;

(3) West Virginia's unique and important lands are key to attracting new businesses and knowledge workers who are mobile and capable of doing business anywhere and critical to diversifying the economy of the State of West Virginia;

(4) West Virginia's unique and important lands provide all West Virginians hunting, fishing, rafting, hiking and other recreational opportunities important to their health and well-being;

(5) West Virginia's unique and important lands are critical to the continued health of the state's wildlife habitats and West Virginia's Wildlife Conservation Action Plan, mandated by the United States Congress, recognizes that habitat loss is a key issue confronting conservation of the state's valuable fish and wildlife resources;

(6) The conversion of rural land to developed land in West Virginia doubled between 1982 and 1997;

(7) There is a critical need to invest in the conservation of unique and important wildlife habitat, natural areas, forest lands, farmland and lands for hunting, fishing and recreation; and

(8) It is critical to encourage cooperation and innovative public partnerships among landowners, state agencies, nonprofit organizations and others which must work together in order to conserve West Virginia's most important unique and rural lands.

(b) It is the intent of the Legislature to provide persons and other entities an opportunity to voluntarily conserve land.

(c) Further, it is the intent of the Legislature to establish a West Virginia Outdoor Heritage Conservation Fund, hereinafter "fund", to establish an ongoing funding source to conserve unique and important wildlife habitat, natural areas, forests, working lands, lands for hunting, fishing and recreation and other lands important to West Virginians.

(d) The Legislature finds that an ongoing funding source to conserve unique and important lands will help to ensure that present and future generations of West Virginians are able to enjoy the economic, quality of life, health, recreational, scenic and other benefits of conserved lands.

§5B-2G-3. West Virginia Outdoor Heritage Conservation Fund - Established.

The West Virginia Outdoor Heritage Conservation Fund is established within the Department of Commerce. The fund has the powers and duties provided in this article.

§5B-2G-4. West Virginia Outdoor Heritage Conservation Fund - Board of trustees.

(a) Composition; chairman; quorum; qualifications. -- The fund shall be governed and administered by a board of trustees composed of the Director of the Division of Natural Resources and the Director of the Division of Forestry, who shall serve as voting ex officio members, and nine voting members to be appointed by the Governor, by and with the advice and consent of the Senate. The ex officio members may appoint designees to serve on the board of trustees. One of the appointed members shall be a representative of the West Virginia Agricultural Land Protection Authority; one of the appointed members shall be a registered forester; three of the appointed members shall be representatives of independent IRC 501(c)(3) land trusts; two of the appointed members shall be recognized professional experts in biology or ecology nominated by the West Virginia Academy of Sciences; one of the appointed members shall have demonstrated expertise in public health or public recreation; and one of the appointed members shall be a representative of sportsmen and sportswomen. A concerted effort shall be made to appoint members who represent a cross-section of the state.

The board shall elect the chair and other officers as necessary from among the nine appointed members. A majority of the members of the board serving at any one time constitutes a quorum for the transaction of business.

If any of the entities to be represented on the board under this section ceases to exist, the Governor shall appoint a representative with similar expertise from an entity with a similar mission.

(b) Terms. --

(1) The Governor, with the advice and consent of the Senate, shall appoint the nine members for the following terms:

(A) Three for a term of four years;

(B) Three for a term of three years; and

(C) Three for a term of two years.

(2) Successors to appointed members whose terms expire shall be appointed for terms of four years. Vacancies shall be filled for the unexpired term. An appointed member may not serve more than two successive terms. Appointment to fill a vacancy may not be considered as one of two terms.

(c) Oath. --

Appointed members shall take the oath of office as prescribed by law.

(d) Recusal. --

A board member shall recuse himself or herself from any vote in which he or she has a conflict of interest. The provisions of this subsection is in addition to any other provisions of law or applicable rules relating to the ethics of public officers or employees.

(e) Compensation and expenses. --

Members shall not receive compensation. Each member of the board shall receive expense reimbursement from the fund for actual reasonable and necessary expenses incurred while engaged in the discharge of official duties, the actual expenses not to exceed the amount paid for similar reimbursement to members of the Legislature.

§5B-2G-5. West Virginia Outdoor Heritage Conservation Fund - Powers.

The board has the following general powers on behalf of the fund:

(a) Power to sue. -- To sue and be sued in contractual matters in its own name.

(b) Power to contract. -- To enter into contracts generally and to execute all instruments necessary or appropriate to carry out its purposes.

(c) Power to conserve land. -- To acquire interests in real property for conservation purposes.

(d) Power to transfer. -- To transfer interests in real property for conservation purposes.

(e) Power to disburse grants. -- To act as a granting authority to award grants to eligible grant recipients in accordance with section nine of this article.

(f) Power to seek funding. -- To apply for and receive funding from any and all state, federal and private sources to be used as provided in this chapter.

(g) Power to authorize bond issuance. -- To direct the Economic Development Authority to issue revenue bonds payable from the portion of the recording fee imposed in section ten, article one, chapter fifty-nine of this code to be allocated to the fund and any other special revenue made against to the fund for this purpose in accordance with section eight of this article or other provisions of this code.

§5B-2G-6. West Virginia Outdoor Heritage Conservation Fund - Duties.

The board shall, on behalf of the fund:

(a) Disseminate information regarding land conservation and promote the conservation of land.

(b) Develop and implement additional guidelines and procedures, consistent with the purposes of this chapter, as necessary to implement this chapter.

(c) Seek and apply for funds from federal, state and private sources to carry out its purpose as provided in this chapter.

(d) From moneys received from the recording fee in accordance with section ten, article one, chapter fifty-nine of this code, to:

(1) Make available to the West Virginia Division of Natural Resources fifty percent of the moneys so received by the fund, for the division to acquire interests in real property for conservation purposes in perpetuity in keeping with the West Virginia Wildlife Conservation Action Plan or other conservation plans developed by the division, provided that the board approves any acquisitions. The division may agree to permit the fund to retain any or all of this fifty percent to remain in the fund to be used as payment of debt service and other costs associated with revenue bonds on the fund's behalf by the Economic Development Authority in accordance with the provisions of this article;

(2) Ensure that the remaining fifty percent of the moneys so received by the fund are used for competitive grants in accordance with this article or used as payment of debt service and other costs associated with revenue bonds on the fund's behalf by the Economic Development Authority in accordance with the provisions of this article, the proceeds of which shall also be used for competitive grants.

(e) Prepare and file electronically with the Governor's office and with the Legislature by the thirty-first day of August of each year a report that accounts for fund receipts and disbursals and sets forth a list and description of all grants approved and all acquisitions of interests in real property obtained with moneys from the fund during the current year, including the recipients of the grants, the amounts and the public benefits of the interests in real property acquired.

(f) Propose legislative rules in accordance with the provisions of article three, chapter twenty-nine-a of this code to carry out its purposes and programs, to include specifically the qualifications and procedures relating to its awarding of grants.

§5B-2G-7. Definitions.

For purposes of this article, the following terms have the meanings set forth in this section.

(a) “Board” means the board of trustees established in section three of this article.

(b) “Conservation easement” means a nonpossessory interest in real property as defined in section three, article twelve, chapter twenty of this code, except that a conservation easement acquired pursuant to this article shall be held in perpetuity.

(c) “Conservation purposes” means the conservation of land for outdoor recreation by the public, for conservation of natural plant and wildlife habitat or similar ecosystem, for conservation of forestland and other open spaces, for conservation of land of historical or cultural significance or as further defined under conservation criteria developed in this article.

(d) “Eligible grant recipient” means:

(1) The following state agencies:

(A) Division of Natural Resources;

(B) Division of Forestry; or

(2) A charitable corporation, charitable association or charitable trust registered with the Secretary of State and exempt from taxation pursuant to Section 501(c)(3) of the Internal Revenue Code of 1986 [Public Law 99-514, 26 U.S.C. §501(c)(3)] or other federal or state statutes or rules, the purposes or powers of which include retaining or protecting the natural, scenic, agricultural or open-space values of real property; assuring the availability of real property for agricultural, forest, recreational or open-space use; protecting natural resources and wildlife; maintaining or enhancing land, air or water quality; or preserving the historical, architectural, archaeological or cultural aspects of real property, as defined in section three, article twelve, chapter twenty of this code, and that has a primary part of its mission to acquire interests in real property for conservation purposes.

(e) “Fund” means the West Virginia Outdoor Heritage Conservation Fund established in this article.

(f) “Land conservation” means acquisition of interests in real property from willing sellers for conservation purposes.

(g) “Stewardship” means the necessary monitoring, maintenance and enforcement of interests in real property for conservation purposes.

§5B-2G-8. Funding of land conservation; issuance of revenue bonds.

(a) Fund. --

(1) Created. -- The West Virginia Outdoor Heritage Conservation Fund is created for the purposes specified in this article.

(2) Sources. -- The West Virginia Outdoor Heritage Conservation Fund is comprised of:

(A) Any money made available to the fund by general or special fund appropriations;

(B) Any money made available to the fund by grants or transfers from governmental or private sources;

(C) Any money realized by investments, interest, dividends or distributions; and

(D) Any money received from the issuance of revenue bonds in accordance with the provisions of this article; and

(3) Disbursements. -- The Treasurer may not disburse any money from the fund other than:

(A) For costs associated with the staffing, administration and technical and legal duties of the fund;

(B) For reasonable and necessary expenses incurred by the members of the board of trustees of the fund in the performance of official duties;

(C) For costs associated with the acquisition of interests in real property for conservation purposes and for costs associated with stewardship authorized by this article;

(D) For grants to be awarded in accordance with section nine of this article;

(E) For payment of debt service and other costs associated with revenue bonds issued on the fund's behalf by the Economic Development Authority; and

(F) Of revenue received, directly or indirectly, from the recording fee under section ten, article one, chapter fifty-nine of this code and not used for the payment of revenue bonds and expenses associated therewith, for purposes consistent with the duties of the fund set forth in this article.

(4) Money remaining at end of fiscal year. -- Any money remaining in the fund at the end of a fiscal year shall not revert to the General Revenue Fund of the state, but shall remain in the fund to be used for the purposes specified in this article.

(5) Budget. -- The estimated budget of the fund for the next fiscal year shall be included with the budget of the West Virginia Department of Commerce.

(6) Audit. -- The fund shall be audited annually.

(b) Bonds. --

The Legislature finds and declares that in order to attract new business, commerce and industry to this state, to retain existing business and industry providing the citizens of this state with economic security and to advance the business prosperity of this state and the economic welfare of the citizens of this state, it is necessary to provide public financial support for land conservation as provided in this article.

(1) The West Virginia Economic Development Authority created and provided in article fifteen, chapter thirty-one of this code shall, by resolution, in accordance with the provisions of this article and article fifteen, chapter thirty-one of this code and upon direction of the board of the Outdoor Heritage Conservation Fund, issue revenue bonds of the Economic Development Authority to pay for all or a portion of the cost of the acquisition of interests in real property for conservation purposes authorized under this article or to refund the bonds at the discretion of the fund. The revenue bonds shall mature at a time or times not exceeding thirty years from their respective dates. The principal of, and the interest and redemption premium, if any, on the bonds shall be payable from the moneys deposited in the fund pursuant to section ten, article one, chapter fifty-nine of this code or from other sources identified by the board of the fund.

(2) There is established in the state Treasury a special revenue fund named the Outdoor Heritage Conservation Fund into which shall be deposited on and after July 1, 2008, the amounts to be deposited in the fund as specified in this article. The Outdoor Heritage Conservation Fund shall consist of all such moneys, all appropriations to the fund, all interest earned from investment of the fund and any gifts, grants or contributions received by the fund. All amounts deposited in the fund pursuant to section ten, article one, chapter fifty-nine of this code shall be pledged to the repayment of the principal, interest and redemption premium, if any, on any revenue bonds or refunding revenue bonds authorized by this section, including any and all commercially customary and reasonable costs and expenses which may be incurred in connection with the issuance, refunding, redemption or defeasance thereof. The West Virginia Economic Development Authority may further provide in the resolution and in the trust agreement for priorities on the revenues paid into the Outdoor Heritage Conservation Fund pursuant to section ten, article one, chapter fifty-nine of this code as may be necessary for the protection of the prior rights of the holders of bonds issued at different times under the provisions of this section. The bonds issued pursuant to this subsection shall be separate from all other bonds which may be or have been issued from time to time under the provisions of this article.

(3) Bonds issued under this subsection shall state on their face that the bonds do not constitute a debt of the State of West Virginia; that payment of the bonds, interest and charges thereon cannot become an obligation of the State of West Virginia; and that the bondholders' remedies are limited in all respects to the special revenue fund established in this subsection for the liquidation of the bonds.

(4) The West Virginia Economic Development Authority shall expend the bond proceeds from the revenue bond issues authorized and directed by this section for projects as certified by the board of the fund under the provisions of this article as serving a public purpose and meeting the criteria established by this article.

(5) If any proceeds from sale of bonds remain after paying costs and making grants as provided in this subsection, the surplus may be used as elsewhere provided in this article.

§5B-2G-9. Grants for land conservation; application; criteria.

(a) An eligible grant recipient may apply for a grant from the fund to acquire interests in real property for conservation purposes or for stewardship. An application may not be submitted to the fund without the written consent of the owner of the interest in real property identified in the application.

(b) Before applying for a grant, the eligible grant recipient shall notify the owner that is the subject of the grant of the following in writing:

(1) That interests in real property acquired with a grant from the fund result in a permanent conveyance of such interests in real property from the owner to the eligible grant recipient or its assigns; and

(2) That it may be in the owner's interest to retain independent legal counsel, appraisals and other professional advice.

The application shall contain an affirmation that the notice requirement of this subsection has been met.

(c) Grants from the fund shall be awarded based upon the conservation criteria and financial criteria contained in this section. In each application, the eligible grant recipient shall provide information regarding how the proposal meets one or more of these criteria and advances the purposes of this article.

(d) For purposes of this article, conservation criteria include:

(1) Unique or important wildlife habitat as specified in the state Wildlife Conservation Action Plan;

(2) Habitat for rare, threatened or endangered species;

(3) A relatively undisturbed or outstanding example of an ecosystem or natural community indigenous to West Virginia;

(4) An important area for public hunting, fishing or other outdoor recreational uses;

(5) Important recreation lands or important habitats identified in county comprehensive plans;

(6) Riparian habitats, wetlands, water quality, watersheds of significant ecological value or critical aquifer recharge areas;

(7) Forest land or working land that has strategic economic significance;

(8) A larger area containing conserved lands or as a connection between conserved lands;

(9) Land of unique cultural, historical or archaeological significance;

(10) Degree of threat to land; and

(11) The number of acres of land to be conserved.

(e) For purposes of this article, financial criteria include:

(1) The degree to which the proposal leverages grants from the fund by including funding or in-kind assets or services from other governmental sources; and

(2) The degree to which the proposal leverages grants from the fund by including funding or in-kind assets or services from private or nonprofit sources or charitable donations, including bargain sales of interests in real property for conservation purposes;

(f) The board of the fund shall evaluate each proposal according to the conservation criteria and financial criteria set forth in this section, and shall award grants on the basis of how well proposals meet these two criteria.

(g) If an eligible grant recipient entity is dissolved or ceases to exist as an entity, or if any interests in real property obtained with a grant from the fund are not being utilized strictly for conservation purposes, the real property interest shall vest in the fund upon recording of a notice signed by the chair of the fund and filed with the clerk of the appropriate county and the fund may transfer the interest to an appropriate eligible grant recipient.

ARTICLE 2H. MARCELLUS GAS AND MANUFACTURING DEVELOPMENT ACT.

§5B-2H-1. Short Title.

This article shall be known and cited as the "Marcellus Gas and Manufacturing Development Act."

§5B-2H-2. Legislative findings; declaration of public policy.

(a) The Legislature finds that:

(1) The advent and advancement of new and existing technologies and drilling practices have created the opportunity for the efficient development of natural gas contained in underground shales and other geological formations.

(2) With development of the Marcellus shale comes the opportunity for economic development in related areas of the economy including, but not limited to, manufacturing, transmission of natural gas and related products and the transportation of manufactured products.

(3) It is in the interest of national security to encourage post-production uses of natural gas and its various components as a replacement for oil imported from other countries.

(4) Producers of natural gas, transporters of natural gas and manufacturers of products using natural gas face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Agencies should work together, where practical, to avoid duplication, promote better coordination and reduce these requirements, thus reducing costs, simplifying and harmonizing rules and streamlining regulatory oversight.

(5) In developing regulatory actions and identifying appropriate approaches, agencies should attempt to promote coordination, simplification, and harmonization.

(6) Agencies should also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.

(7) Agencies should review their existing significant legislative, interpretive and procedural rules to determine whether any such rules should be modified, streamlined, expanded or repealed so as to make the agency's regulatory program more effective or less burdensome in achieving the regulatory objectives.

(8) The West Virginia Economic Development Authority established in article fifteen, chapter thirty-one of this code and the West Virginia Infrastructure and Jobs Development Council created in article fifteen-a, chapter thirty-one of this code, should, where appropriate, provide assistance that grows or sustains this segment of the economy.

(b) The Legislature declares that facilitating the development of business activity directly and indirectly related to development of the Marcellus shale serves the public interest of the citizens of this state by promoting economic development and improving economic opportunities for the citizens of this state.

ARTICLE 2I. WEST VIRGINIA TOURISM OFFICE.

§5B-2I-1. Short title.

This article shall be known and cited as the West Virginia Tourism Act of 2017.

§5B-2I-2. West Virginia Tourism Office.

The Division of Tourism is continued within the Department of Commerce but is hereafter designated and shall be known as the West Virginia Tourism Office.  All references in this code to the Division of Tourism shall be construed as references to the West Virginia Tourism Office.

§5B-2I-3. Appointment and compensation of the Executive Director of the West Virginia Tourism Office.

(a) The West Virginia Tourism Office is under the direction and charge of the Executive Director of the West Virginia Tourism Office.

(b) The Executive Director shall be appointed by the Governor: Provided, That the person serving as Commissioner of Tourism at the time of enactment of this section in 2017, shall be the Executive Director of the West Virginia Tourism Office and serve at the will and pleasure of the Governor.  The executive director’s salary shall be set by the Governor.  The executive director shall be a competent person, having executive ability and knowledge of publicity, advertising and tourism promotion.

§5B-2I-4. Powers and duties of the West Virginia Tourism Office.

(a) The West Virginia Tourism Office, under the direction and charge of the Executive Director of the West Virginia Tourism Office, shall develop and implement a comprehensive tourism advertising, promotion and development strategy for West Virginia. “Comprehensive tourism advertising, promotion and development strategy” means a plan that outlines strategies and activities designed to continue, diversify and expand the tourism base of the state as a whole; create tourism jobs; develop a highly skilled tourism workforce; facilitate business access to capital for tourism; advertise and market the resources offered by the state with respect to tourism advertising, promotion and development; facilitate cooperation among local, regional and private tourism enterprises; improve infrastructure on a state, regional and community level in order to facilitate tourism development; improve the tourism business climate generally; and leverage funding from sources other than the state, including local, federal and private sources. In addition to all other power and duties of the West Virginia Tourism Office by other provisions of this code, the West Virginia Tourism Office shall:

(1) Coordinate media events to promote a positive image of West Virginia and new investment in the tourist industry;

(2) Provide comprehensive strategic planning services to existing tourism enterprises;

(3) Promote attractions of West Virginia in other states;

(4) Provide advertising, marketing and communications goods and services, including, without limitation, a cooperative advertising program to facilitate and allow participation in the West Virginia Tourism Office’s advertising and marketing campaigns and activities, to state agencies, departments, units of state or local government, private tourism enterprises and other persons, entities or private enterprises, including, without limitation, convention and visitors’ bureaus; and

(5) Distribute West Virginia informational publications and manage the West Virginia Welcome Centers.

(b) In developing its strategies, plans and campaigns, the West Virginia Tourism Office shall consider the following:

(1) Improvement and expansion of existing tourism marketing and promotion activities;

(2) Promotion of cooperation among municipalities, counties and the West Virginia Infrastructure and Jobs Development Council in funding physical infrastructure to enhance the potential for tourism development.

(c) The West Virginia Tourism Office shall have the power and duty:

(1) To acquire for the state in the name of the West Virginia Tourism Office by purchase, lease or agreement, or accept or reject for the state, in the name of the West Virginia Tourism Office, gifts, donations, contributions, bequests or devises of money, security or property, both real and personal, and any interest in such property, to effectuate or support the purposes of this article;

(2) To make recommendations to the Governor and the Legislature of any legislation deemed necessary to facilitate the carrying out of any of the foregoing powers and duties and to exercise any other power that may be necessary or proper for the orderly conduct of the business of the West Virginia Tourism Office and the effective discharge of the duties of the West Virginia Tourism Office;

(3) To cooperate and assist in the production of motion pictures and television and other communications;

(4) To purchase advertising time or space in or upon any medium generally engaged or employed for said purpose to advertise and market the resources of the state or to inform the public at large or any specifically targeted group or industry about the benefits of living in, investing in, producing in, buying from, contracting with, or in any other way related to, the State of West Virginia or any business, industry, agency, institution or other entity therein;

(5) To promote and disseminate information related to the attractions of the state through the operation of the state’s telemarketing initiative, which telemarketing initiative shall include a centralized reservation and information system for state parks and recreational facilities;

(6) To take such additional factors as may be necessary to carry out the duties and programs described in this article; and

(7) To provide assistance to and assist with retention and expansion of existing tourism-related enterprises in the state and to recruit or assist in the recruitment of new tourism-related enterprises to the state.

(d) The West Virginia Tourism Office may contract with the Division of Highways to sell advertising space on the WV511 website to promote in-state tourism and raise capital for technological improvements to the website: Provided, That 50 percent of the money collected for sale of advertising space is deposited into the Tourism Promotion Fund and the other 50 percent of the money collected from the sale of advertising space is remitted to the Division of Highways pursuant to the contract.

(e) The West Virginia Tourism Office may charge and collect reasonable fees for goods and services it provides to state agencies, departments, units of state or local government or other person, entity or enterprise. All moneys collected by the West Virginia Tourism Office shall be deposited in the Tourism Promotion Fund and used in accordance with the provisions of this article.

(f) The West Virginia Tourism Office may engage and retain one or more advertising and marketing agencies, consultants, enterprises, firms or persons, as deemed by the Executive Director of the West Virginia Tourism Office, in his or her sole discretion, necessary or advisable to assist the West Virginia Tourism Office in carrying out its powers and duties as set forth in this article. In the procurement of advertising agencies, consultants, enterprises or persons, from time to time, estimated to cost $250,000 or more, the Executive Director of the West Virginia Tourism Office shall encourage such advertising and marketing agencies, consultants, enterprises, firms or persons to submit an expression of interest, which shall include a statement of qualifications, including anticipated concepts and proposed advertising, marketing and advertising campaigns. All potential contracts shall be announced by public notice published as a Class II legal advertisement in compliance with the provisions of §59-3-3 of this code. A committee of three to five representatives of the West Virginia Tourism Office or the Tourism Commission, as selected by the chair of the Tourism Commission, shall evaluate the statements of qualifications and other materials submitted by interested firms and select three firms which, in their opinion, are best qualified to perform the desired service. The committee shall then rank, in order of preference, the three firms selected and shall commence scope of service and price negotiations with the first ranked firm. If the West Virginia Tourism Office is unable to negotiate a satisfactory contract with the first ranked firm, at a fee determined to be fair and reasonable, price negotiations with the firm of second choice shall commence. Failing accord with the second ranked firm, the committee shall undertake price negotiations with the third ranked firm. If the West Virginia Tourism Office is unable to negotiate a satisfactory contract with any of the selected firms, the office shall select additional firms in order of their competence and qualifications and it shall continue negotiations in accordance with this section until an agreement is reached.

If the procurement of the services is estimated by the executive director to cost less than $250,000, the West Virginia Tourism Office shall conduct discussions with three or more firms solicited on the basis of known or submitted qualifications for the assignment prior to the awarding of any contract: Provided, That if a judgment is made that special circumstances exist and that seeking competition is not practical, the West Virginia Tourism Office may, with the prior written approval of the Secretary of Commerce, select a firm on the basis of previous satisfactory performance and knowledge of the West Virginia Tourism Office’s needs. After selection, the West Virginia Tourism Office and selected firm shall develop the scope of desired services and negotiate a contract.

(g) The Executive Director of the West Virginia Tourism Office may, in order to carry out the powers and duties of the West Virginia Tourism Office described in this article, employ necessary personnel, contract with professional or technical experts or consultants and purchase or contract for the necessary equipment or supplies.

(h) The Executive Director of the West Virginia Tourism Office may designate, in writing, with the written consent of the Secretary of Commerce, a list of positions within the West Virginia Tourism Office that shall be exempt from coverage under the state’s classified service.

(i) The West Virginia Tourism Office shall submit a report annually to the Governor, Secretary of Commerce and the Legislature about the development of the tourism industry in the state and the necessary funding required by the state to continue the development of the tourism industry.

(j) The West Virginia Tourism Office and the Executive Director of the West Virginia Tourism Office shall engage, collaborate, assist and cooperate with the West Virginia Development Office, when and as appropriate, to facilitate retention, expansion, recruitment and location of existing and new tourism-related enterprises.

§5B-2I-5. Public-private partnerships.

(a) The West Virginia Tourism Office may enter into contractual or joint venture agreements with one or more nonprofit corporations organized pursuant to the corporate laws of the state, organized to permit qualification pursuant to Section 501(c) of the Internal Revenue Code and organized for purposes of the promotion and development of tourism in West Virginia, and funded from sources other than the state.  Members of the Tourism Commission provided in this article are authorized to sit on the board of directors of such private nonprofit corporations.

(b) From time to time the West Virginia Tourism Office may enter into joint ventures wherein the West Virginia Development Office and one or more said nonprofit corporations share in the development and funding of tourism advertising, promotion and development programs and campaigns.

(c) All contracts and joint venture agreements entered into pursuant to this section for longer than one fiscal year shall contain, in substance, a provision that the contract shall be considered canceled without further obligation on the part of the state if the Legislature, or, where appropriate, the federal government shall fail to appropriate sufficient funds therefor or shall act to impair the contract or cause it to be canceled.

§5B-2I-6. Tourism Promotion Fund; use of funds.

(a) There is continued in the State Treasury the special revenue fund known as the Tourism Promotion Fund created under prior enactment of section nine, article one, chapter five-b of this code.

(b) Moneys deposited in the fund each year shall be used solely for marketing, direct advertising, business development and public relations promoting travel and tourism within the state and the state’s image and brand identity at the discretion and direction of the Executive Director of the West Virginia Tourism Office.  “Direct advertising” means advertising which includes, but is not limited to, television, radio, mailings, newspaper, magazines, digital marketing, including the Internet and social media, and outdoor billboards or any combination thereof.  Any balance remaining at the end of any fiscal year does not revert to the General Revenue Fund, but shall remain in the fund for expenditures in accordance with the provisions of this section.

(c) Effective July 1, 2017, the Tourism Advertising Partnership Program and all related legislative or procedural rules shall cease, except as necessary for the Tourism Commission to settle, finalize and conclude all outstanding advertising grants or other financial obligations of the Tourism Commission respecting funds in the Tourism Promotion Fund previously approved, expended or obligated by the Tourism Commission as of the effective date of this article pursuant to subdivision (2), subsection (e), section seven of this article and be replaced by a cooperative advertising program to be created and established by the West Virginia Tourism Office, under and pursuant to section four of this article, to offer, facilitate and allow participation in the West Virginia Tourism Office’s advertising and marketing campaigns and activities, to state agencies, departments, units of state or local government, private tourism enterprises and other persons, entities or private enterprises, including, without limitation, convention and visitors’ bureaus.  The Executive Director of the West Virginia Tourism Office shall establish and publish a fee schedule, which shall include a match of state funds to program participant’s funds, for participation in the cooperative advertising program.

§5B-2I-7. Tourism Commission; members, appointment and expenses.

(a) There is continued within the Department of Commerce an independent Tourism Commission, which is a body corporate and politic, constituting a public corporation and government instrumentality.

(b) The Tourism Commission consists of the following fifteen members:

(1) The Secretary of Commerce, or his or her designee, ex officio;

(2)  The Secretary of Transportation or his or her designee, ex officio;

(3) Twelve members appointed by the Governor, with the advice and consent of the Senate, representing participants in the state’s tourism industry. Ten of the members shall be from the private sector, one shall be a director employed by a convention and visitors bureau and one shall be a member of a convention and visitors bureau. In making the appointments, the Governor may select from a list provided by the West Virginia Hospitality and Travel Association of qualified applicants. Of the twelve members so appointed, no less than three shall be from each congressional district within the state and shall be appointed to provide the broadest geographic distribution which is feasible;

(4) One member to be appointed by the Governor to represent public sector nonstate participants in the tourism industry within the state.

(c) Each member appointed by the Governor serves a staggered term of four years. Any member whose term has expired serves until his or her successor has been appointed. Any person appointed to fill a vacancy serves only for the unexpired term. Any member is eligible for reappointment. In case of a vacancy in the office of a member, the vacancy shall be filled by the Governor in the same manner as the original appointment.

(d) The chair of the Tourism Commission shall be appointed by the Governor from members then serving on the commission, and serves at the will and pleasure of the Governor.

(e) The Tourism Commission shall:

(1) Assist the Executive Director of the West Virginia Tourism Office in the development and implementation of the state’s comprehensive tourism advertising, marketing, promotion and development strategy; and

(2) Take all actions necessary to settle, finalize and conclude all outstanding advertising grants or other financial obligations of the Tourism Commission respecting funds in the Tourism Promotion Fund previously approved, expended or obligated by the Tourism Commission as of the effective date of this article.

(f) Members of the Tourism Commission are not entitled to compensation for services performed as members.  Each member from the private sector is entitled to reimbursement for reasonable expenses incurred in the discharge of their official duties.  All expenses incurred by members from the private sector shall be paid in a manner consistent with guidelines of the Travel Management Office of the Department of Administration and are payable solely from the funds of the West Virginia Tourism Office or from funds appropriated for that purpose by the Legislature.  Liability or obligation is not incurred by the West Virginia Tourism Office beyond the extent to which moneys are available from funds of the authority or from the appropriations.

(g) Members shall meet quarterly as designated by the chair.

§5B-2I-8. Confidentiality.

Any documentary material, data or other writing made or received by the West Virginia Tourism Office, the West Virginia Development Office or the Tourism Commission, for the purpose of furnishing assistance to a new or existing business are exempt from the provisions of article one, chapter twenty-nine-b of this code: Provided, That any agreement entered into or signed by the West Virginia Tourism Office or the West Virginia Development Office which obligates public funds is subject to inspection and copying pursuant to the provisions of that article as of the date the agreement is entered into, signed or otherwise made public.

ARTICLE 3. WEST VIRGINIA ECONOMIC DEVELOPMENT STRATEGY: A VISION SHARED.

§5B-3-1. Legislative intent.

(a) West Virginia: A shared vision statement. -- West Virginia's strong commitment to future generations has created a vibrant and diverse economy balancing quality jobs and the state's irreplaceable natural beauty. West Virginia has a highly skilled and educated workforce, is a leader in innovation and offers an excellent quality of life for all residents.

(b) "West Virginia: A vision shared" vision statement is meant to be used as a touchstone to ensure that actions being undertaken are in line and on course.

(c) It is the intent of the Legislature to set economic development goals for the state and that the joint commission on economic development, created in this article, use the goals in bringing all agencies performing economic development and workforce investment activities together to improve the economic situation in this state.

(d) Furthermore, it is the intent of the Legislature that the state work toward accomplishing three overall goals:

(1) The development of a comprehensive statewide economic development strategy;

(2) The effective statewide coordination of economic development programs; and

(3) The development of meaningful agency and program benchmarks and performance-based evaluations.

§5B-3-2. Creation of the joint commission on economic development.

(a) The joint commission on economic development is hereby established. The commission shall be composed of not more than twenty-four members as follows:

(1) The chairs of the Senate and House of Delegates finance committees;

(2) The chairs of the Senate and House of Delegates judiciary committees;

(3) The chairs of the Senate and House of Delegates education committees;

(4) Not more than nine additional members of the Senate appointed by the President of the Senate, with at least one member representing health; and

(5) Not more than nine additional members of the House of Delegates appointed by the Speaker of the House of Delegates, with at least one member representing health.

(b) Any vacancies occurring in the membership of the commission shall be filled in the same manner as the original appointment for the position being vacated. The vacancy shall not affect the power of the remaining members to perform the duties of the commission.

(c) The commission may explore how West Virginia can:

(1) Invest in systems that build workforce skills and promote lifelong learning to ensure a competitive workforce;

(2) Enhance the infrastructure, communications and transportation needed to support the knowledge-based industries and electronic commerce;

(3) Reorganize government to deliver services more efficiently, using technology, privatization and partnerships with the private sector;

(4) Align state tax systems to meet the demands of the twenty-first century economy;

(5) Develop more uniform regulatory and tax systems to reduce complexity, eliminate market distortions and better protect consumers;

(6) Support entrepreneurs by streamlining business regulations, providing timely decisions and assisting firms in their search for venture capital;

(7) Promote university policies that encourage research and development and build intellectual infrastructure;

(8) Address quality-of-life concerns to attract new businesses and workers; and

(9) Accomplish the goals set forth in this article and any other goal related to economic development or workforce investment that the commission considers important.

(d) The commission may propose legislation necessary to accomplish its goals.

§5B-3-3. Reexamination of vision and goals.

Every fourth year after January 1, 2001, the joint commission on economic development, established pursuant to this article, shall conduct a thorough examination of the vision and goals set forth in this article and may recommend legislation relating to the vision and goals to the Legislature.

§5B-3-4. Commission review of procedural rules, interpretive rules and existing legislative rules.

(a) The Joint Commission on Economic Development may review any procedural rule, interpretive rule or existing legislative rule and make recommendations concerning the rules to the Legislature.

(b) The Development Office and the Tourism Commission established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty-one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, regional planning and development councils, West Virginia Rural Development Council, Office of Technology and West Virginia Clearinghouse for Workforce Education shall each file a copy of its legislative rules with the Commission as provided for in this section. Each agency that proposes legislative rules in accordance to the provisions of article three, three-a or three-b, chapter twenty-nine-a of this code relating to economic development or workforce development shall file the rules with the Joint Commission at the time the rules are filed with the Secretary of State prior to the public comment period or public hearing required in said chapter.

§5B-3-5. Joint Commission on Economic Development Studies.

(a) The Joint Commission on Economic Development shall study the following:

(1) The feasibility of establishing common regional configurations for local workforce investment areas, regional educational service agencies and for all other purposes the Commission considers feasible. The study should review the existing levels of cooperation between state and local economic developers, complete an analysis of possible regional configurations and outline examples of other successful regional systems or networks found throughout the world. If the study determines that the common regional configurations are feasible, the Commission shall recommend legislation establishing common regional designations for all feasible purposes. In making the designation of regional areas, the study shall take into consideration, but not be limited to, the following:

(A) Geographic areas served by local educational agencies and intermediate educational agencies;

(B) Geographic areas served by post-secondary educational institutions and area vocational education schools;

(C) The extent to which the local areas are consistent with labor market areas;

(D) The distance that individuals will need to travel to receive services provided in the local areas; and

(E) The resources of the local areas that are available to effectively administer the activities or programs;

(2) The effectiveness and fiscal impact of incentives for attracting and growing businesses, especially technology-intensive companies; and

(3) A comprehensive review of West Virginia's existing economic and community development resources and the recommendation of an organizational structure, including, but not limited to, the reorganization of the Department of Commerce and the Development Office that would allow the state to successfully compete in the new global economy.

(b) In order to effectuate in the most cost-effective and efficient manner the studies required in this article, it is necessary for the Joint Commission to assemble and compile a tremendous amount of information. The Development Office will assist the Joint Commission in the collection and analysis of this information. The Tourism Commission established pursuant to article two of this chapter, the Economic Development Authority established pursuant to article fifteen, chapter thirty-one of this code, the Bureau of Employment Programs established pursuant to article four, chapter twenty-one-a of this code, the Workers' Compensation Commission established pursuant to article one, chapter twenty-three of this code, the Workforce Investment Commission established pursuant to article two-c of this chapter, West Virginia Jobs Investment Trust, Regional Planning and Development Councils, West Virginia Rural Development Council, Office of Technology and West Virginia Clearinghouse for Workforce Education shall provide a copy of their annual reports as submitted to the Governor in accordance with the requirements set forth in section twenty, article one, chapter five of this code to the West Virginia Development Office. The Development Office shall review, analyze and summarize the data contained in the reports, including its own annual report, and annually submit its findings to the Joint Commission on or before December 31.

(c) The Legislative Auditor shall provide to the Joint Commission a copy of any and all reports on agencies listed in subsection (b) of this section, which are required under article ten, chapter four of this code.

(d) The Joint Commission shall complete the studies set forth in this section and any other studies the Joint Commission determines to undertake prior to December 1, of each year and may make recommendations, including recommended legislation for introduction during the regular session of the Legislature.

ARTICLE 4. LABOR-MANAGEMENT COUNCIL.

§5B-4-1.

Repealed.

Acts, 1995 Reg. Sess., Ch. 142.

ARTICLE 5. EMPLOYEE OWNERSHIP ASSISTANCE PROGRAM.

§5B-5-1.

Repealed.

Acts, 1993 Reg. Sess., Ch. 42.

ARTICLE 6. SMALL BUSINESS EXPANSION ASSISTANCE PROGRAM.

§5B-6-1.

Repealed.

Acts, 1993 Reg. Sess., Ch. 42.

ARTICLE 7. RECOVERY ZONE BONDS.

§5B-7-1. Definitions.

Unless the context clearly indicates otherwise, as used in this article:

(1) "Economic Development Authority" or "authority" means the West Virginia Economic Development Authority as continued in section five, article fifteen, chapter thirty-one of this code.

(2) "Recovery zone bonds" means recovery zone economic development bonds and recovery zone facility bonds, authorized under Section 1401 of Title I of Subtitle B of the American Recovery and Reinvestment Act of 2009, Pub. L. No. 111-5, 123 Stat. 115 (2009), that may be issued by states, counties, certain municipalities and other qualified issuers within each state before January 1, 2011.

(3) "Recovery zone economic development bond" means the term as defined in 26 U.S.C. §1400U-2.

(4) "Recovery zone facility bond" means the term as defined in 26 U.S.C. §1400U-3.

(5) "Volume cap" means the recovery zone bond volume limitation allocated to each state and to counties and municipalities within each state in accordance with 26 U.S.C. §1400U-1.

§5B-7-2. Allocation of volume cap for recovery zone bonds; obligations not debt of state.

Pursuant to 26 U.S.C. §1400U-1(a)(3)(A), the State of West Virginia shall allocate the volume cap among the counties of the state in the same manner as described in Section 6.04 of Internal Revenue Service Notice 2009-50. Bonds, notes and other obligations issued pursuant to this article shall not constitute a debt or a pledge of the faith and credit or taxing power of this state and the holders and owners thereof shall have no right to have taxes levied by the Legislature for the payment of the principal thereof or interest thereon, but such bonds, notes and other obligations shall be payable solely from revenues and funds pledged for their payment as established in the authorizing orders, ordinances and resolutions of such issuers. All such bonds and notes, and all documents evidencing any other obligation, shall contain on the face thereof a statement to the effect that the bonds, notes or such other obligation as to both principal and interest, are not debts of the state but are payable solely from revenues and funds pledged for their payment.

§5B-7-3. Certification and waiver of volume cap allocation.

(a) Preliminary certification. --

(1) Each county allocated volume cap in accordance with this article shall submit a preliminary certification to the Governor that includes:

(A) The amount of volume cap the county intends to use;

(B) The entity issuing each series of recovery zone bonds. If the county has suballocated volume cap to an entity, the certification shall include a copy of an order, ordinance or resolution of the county commission authorizing the suballocation;

(C) The projects, including, but not limited to, road transportation projects, to be financed by the issuance of each series of recovery zone bonds; and

(D) The financing plan for each series of recovery zone bonds, including the source of payment of the debt service of each series of recovery zone bonds.

(2) Preliminary certifications for recovery zone economic development bonds shall be submitted to the Governor on or before January 31, 2010.

(3) Preliminary certifications for recovery zone facility bonds shall be submitted to the Governor on or before February 28, 2010.

(4) Any portion of volume cap allocated to a county that is not certified for use by the county in accordance with this subsection is considered waived.

(5) A county may waive its allocation of volume cap by providing written notice of such waiver to the Governor on or before January 31, 2010, in the case of volume cap for recovery zone economic development bonds, or on or before February 28, 2010, in the case of volume cap for recovery zone facility bonds.

(b) Final certification. --

(1) Each county that has submitted a preliminary certification to the Governor shall submit a final certification to the Governor on or before July 31, 2010. The final certification shall establish: (i) That the county or other entity receiving a suballocation from the county has closed on each series of recovery zone bonds or has entered into a bond purchase agreement that requires closing on each series of recovery zone bonds prior to August 31, 2010; and (ii) the amount of volume cap used by the county.

(2) Any portion of volume cap allocated to a county that is not certified as used in accordance with this subsection is considered waived. However, if an entity receiving a suballocation from a county submits a timely certification pursuant to section five of this article, that suballocated portion of the county's volume cap is not considered waived.

(3) If, after submitting a preliminary certification to the Governor, a county determines to waive any portion of its allocation of volume cap, it may waive its allocation of such portion by notifying the Governor in writing on or before July 31, 2010.

(c) Notice of waiver. -- The Governor shall provide timely written notice to the Economic Development Authority of any written volume cap waiver submitted by a county.

§5B-7-4. Reallocation of volume cap.

(a) The Economic Development Authority shall reallocate volume cap that has been waived pursuant to this article. The authority may reallocate the volume cap to the state, state agencies, counties, municipalities or any other political subdivisions or any other eligible issuer authorized to issue recovery zone bonds pursuant to Section 5.04 of Internal Revenue Service Notice 2009-50.

(b) As soon as reasonably possible after the effective date of this section the authority shall adopt a procedure for the solicitation and receipt of applications, on a form and in a manner prescribed by the authority, for eligible issuers seeking reallocated volume cap.

(c) Within ninety days of receipt of written notice from the Governor the authority shall reallocate any amount of volume cap waived by a county pursuant to this article. The authority shall provide written notice of any reallocation to the entity receiving the reallocation.

§5B-7-5. Suballocation of volume cap by counties; counties authorized to take action to issue recovery zone bonds.

Counties allocated volume cap pursuant to this article may, by order, ordinance or resolution of the county commission, suballocate such allocation to municipalities or any other eligible issuers authorized to issue recovery zone bonds pursuant to Section 5.04 of Internal Revenue Service Notice 2009-50. Each county that suballocates volume cap shall attach a copy of the order, ordinance or resolution authorizing the suballocation to the preliminary certification required in section three of this article. Entities receiving a suballocation pursuant to this section shall certify to the county and to the Governor no later than July 31, 2010, that the entity has closed on the recovery zone bonds using the volume cap suballocation or has entered into a bond purchase agreement that requires a closing on the recovery zone bonds prior to August 31, 2010. Counties shall be authorized to take any other action required by Internal Revenue Service Notice 2009-50 to issue recovery zone bonds.

§5B-2-17. West Virginia Motorsport Committee.

(a) The West Virginia Motorsport Committee is hereby created.

(b) The committee consists of five members, including its chairperson, appointed by the Governor to serve at his or her will and pleasure.

(c) The Commissioner of Tourism and the Director of the West Virginia Development Office shall also serve on the committee, ex officio.

(d) The committee shall:

(1) Work with the existing facilities within the state to enhance existing racing;

(2) Develop a strategy that creates further opportunities, such as encouraging racing training schools, conducting special events, and encouraging special events and the construction of larger in-state racing facilities; and

(3) Seek opportunities to promote economic growth and manufacturing jobs related to motorsports.

(e) The committee shall hold regular meetings, at least quarterly, and conduct public hearings as it deems necessary.

(f) Members of the committee will receive no compensation but are entitled to reimbursement for mileage expenses while attending meetings of the committee to the extent that funds are available through the Development Office.

(g) The committee shall report on the status of its duties, goals, accomplishments and recommendations to the Legislature on at least an annual basis.  

§5B-2-16. Entrepreneurship and Innovation Investment Fund.

(a) The Entrepreneurship and Innovation Investment Fund is hereby created.  The fund shall be administered by the West Virginia Development Office and shall consist of all moneys made available for the purposes and from the sources set forth in this section of the code.

(b) The fund consists of moneys received from the following sources:

(1) All appropriations provided by the Legislature;

(2) Any moneys available from external sources; and

(3) All interest and other income earned from investment of moneys in the fund.

(c) The West Virginia Development Office shall use moneys in the fund to support entrepreneurship, creation of business startups, improvements in workforce participation, and attracting individuals to relocate to West Virginia.

(d) Any balance, including accrued interest and any other returns, in the Entrepreneurship and Innovation Investment Fund at the end of each fiscal year shall not expire to the General Revenue Fund but remain in the fund and be expended for the purposes provided by this section.

(e) Fund balances may be invested with the state’s Consolidated Investment Fund. Earnings on the investments shall be used solely for the purposes defined in §5B-2-16(c) of this code.

§5B-8-3. Eligibility.

In order to be eligible for a grant under this article, a small business must satisfy all of the following conditions:

(1) The small business must be a for-profit, West Virginia-based business;

(2) For the Phase I and/or Phase II Matching program the small business must have received a SBIR/STTR Phase I or SBIR/STTR Phase II award from a participating federal agency in response to a specific federal solicitation. To receive the full match for the Phase I award, the small business must also have submitted a final Phase I report, demonstrated that the sponsoring agency has an interest in a Phase II proposal, and submitted a Phase II proposal to the agency; To receive the Phase II match, the small business must have submitted the final progress report to the funding agency;

(3) The small business must satisfy all federal SBIR/STTR requirements;

(4) The small business shall not receive concurrent funding support from other sources that duplicates the purpose of this article;

(5) The small business must certify that at least 51 percent of the research described or to be described in the federal SBIR/STTR Phase II proposal will be conducted in this state and that the small business will remain a West Virginia-based business for the duration of the SBIR/STTR Phase II project; and

(6) The small business must demonstrate its ability to conduct research in its SBIR/STTR Phase II proposal.

§5B-8-4. Application process.

(a) A small business shall apply, under oath, to the department on forms prescribed by the department that include at least the following:

(1) The name of the small business, the form of business organization under which it is operated, and the names and addresses of the principals and management of the small business;

(2) For matching awards, notice of award from the funding agency of the SBIR/STTR Phase I or Phase II award;

(3) For matching awards, study section evaluation and comments; and

(4) Any other information necessary for the department to evaluate the application.

(b) The department shall review the application, determine whether the applicant satisfies the eligibility requirements, and determine whether to award matching grants.

§5B-8-5. Grant terms.

(a) The department may award a "WV Phase Zero Grant" of $2500 upon submission of a Phase I SBIR/STTR proposal or Fast track SBIR/STTR proposal. The WV Phase Zero grant shall be remitted to the small business upon notification from the granting agency of the receipt of a submission for an SBIR/STTR Phase I or SBIR/STTR fast track application. The small business must provide satisfactory evidence to the department of the notification of receipt. A small business may receive only one WV Phase Zero Grant per year. A small business may receive only one WV Phase Zero Grant with respect to each federal proposal submission; resubmissions of unsuccessful applications are not eligible. Over its lifetime, a small business may receive a maximum of five WV Phase Zero awards. A grant recipient may assign an award only upon the prior written consent of the department.

(b) The department may award grants to match funds received by a small business through a SBIR/STTR Phase I proposal up to a maximum of $100,000 paid in two remittances. Fifty percent of the award under this subsection shall be remitted to the small business upon receipt of the SBIR/STTR Phase I award and an application to the department for the funds. The remaining fifty percent of the award under this subsection shall be remitted to the small business upon submission by the small business of a Phase II application to the funding agency, acceptance of the Phase I report by the funding agency, and application to the department for the funds. A small business may receive only one grant under this subsection per year. A small business may receive only one grant under this subsection with respect to each federal proposal submission. Over its lifetime, a small business may receive a maximum of five awards under this subsection. A grant recipient may assign the award only upon the prior written consent of the department.

(c) The department may award grants to match the funds received by a small business through a SBIR/STTR Phase II proposal up to a maximum of $100,000 per year for up to two years, after application to the department. The second remittance may be made to the small business on the one-year anniversary of the first matching remittance under this subsection, if applicant applies for the funds with documentation from the agency indicating that the grant is to continue for a second year.  A small business may receive only one grant under this subsection per year. A small business may receive only one award under this subsection with respect to each federal proposal submission. Over its lifetime, a small business may receive a maximum of five awards under this subsection.  A grant recipient may assign the award only upon the prior written consent of the department.

ARTICLE 8. SMALL BUSINESS INNOVATION RESEARCH AND SMALL BUSINESS TECHNOLOGY TRANSFER MATCHING FUNDS PROGRAM.

§5B-8-1. Definitions.

When used in this article:

"Department" means the West Virginia Department of Commerce.

"SBIR" means the Small Business Innovation Research Program enacted under the Small Business Innovation Development Act of 1982, Pub. L. 97-219, 15 U.S.C. § 638.

"STTR" means the Small Business Technology Transfer Program enacted under the Small Business Technology Transfer Act of 1992, Pub. L. 102-564, 15 U.S.C § 638.

"Small business" means a corporation, partnership, limited liability company, statutory or common law business trust, sole proprietorship, or individual, operating a business for profit, which qualifies as a small business and otherwise meets the requirements of the SBIR or STTR programs.

"West Virginia-based business" means a business that has its principal place of business in this state.

§5B-8-2. Creating a matching program.

The West Virginia Small Business Innovation Research and Small Business Technology Transfer Matching Funds Program is established. It shall be administered by the department which is hereby authorized to promulgate legislative rules governing the program. In order to foster job creation and economic development in the state, the department may provide grants to eligible small businesses to match funds they receive from Small Business Innovation Research or Small Business Technology Transfer Phase I and Phase II awards.  The department will pay the grants from the fund known as the "Entrepreneurship and Innovation Investment Fund" created pursuant to §5B-2-16 of this code.

§5B-1-9. Authority to assist qualifying tourism development projects and tourism development expansion projects; legislative findings.

(a) The Department of Commerce may assist qualifying tourism development projects and tourism development expansion projects by approved companies pursuant to §5B-2E-1 et seq. of this code which are located in, or partially in, municipalities with a population of 2,000 or less, effective as of the effective date of the most recent census, as specified in §8-1-4 of this code relating to the creation of tourism development districts.

(b) The Legislature finds and declares that the general welfare and material well-being of the citizens of the state depend, in large measure, upon the development and expansion of tourism in the state, and that, beyond the creation and expansion of tourism development projects and tourism development expansion projects, it is in the best interest of the state to induce and assist in tourism development in small municipalities through the creation of tourism development districts, in order to advance the public purposes of relieving unemployment by preserving and creating jobs, and preserving and creating new and greater sources of revenues for the support of public services provided by the state and local government; and that tourism development districts are of paramount importance to the state and its economy and for the state’s contribution to the national economy.

It is the intent of the Legislature to occupy the whole field of the creation and regulation of tourism development districts. The stated purpose of this section is to promote uniform and consistent application of the act within the state.

(c) This section prohibits:

(1) Certain municipalities, whether by ordinance, resolution, administrative act, or otherwise, from enacting, adopting, implementing, or enforcing ordinances, regulations, or rules which limit, in any way, the creation of, and acquisition, construction, equipping, development, expansion, and operation of any tourism development project or tourism development expansion project in a tourism development district; and

(2) Certain municipalities from imposing or enforcing local laws and ordinances concerning the creation or regulation of any tourism development district and any tourism development project or tourism development expansion project therein.

(d) Any developer or owner of a tourism development project or tourism development expansion project which has been determined by the West Virginia Development Office, pursuant to §5B-2E-1 et seq. of this code, to be an approved company and which has entered into an agreement with the development office pursuant to §5B-2E-6 of this code to provide the approved company with a credit against the West Virginia consumers sales and service tax imposed by §11-15-1 et seq. of this code may apply to the development office for designation of a tourism development district encompassing the area where the tourism development project or the tourism development expansion project is to be acquired, constructed, equipped, developed, expanded, and operated: Provided, That notwithstanding any provision of §5B-2E-5(c)(2) of this code to the contrary, only tourism development projects and tourism development expansion projects with aggregate projected costs of construction, reconstruction, restoration, rehabilitation, or upgrading of not less than $25 million shall be eligible for designation as a tourism development district.

(e) Applicants for the creation of a tourism development district shall demonstrate that the district, when designated, will create significant economic development activity:

(1) Applicants shall submit a development plan that provides specific details on proposed financial investment, direct and indirect jobs to be created, and the viability of the proposed tourism development district; and

(2) The applicant shall own, control, or have the right of use to all real property within the proposed tourism development district and shall provide evidence of such ownership, control, or right of use in the application to the development office.

(f) The proposed district shall be entirely or partially within the corporate limits of a municipality which has a population of 2,000 or less as of the effective date of the most recent census, as specified in §8-1-4 of this code.

(g) All costs for the application shall be borne by the applicant.

(h) The application submitted by the applicant to the development office pursuant to §5B-2E-1 et seq. of this code may be considered by the development office to be sufficient to meet some of the requirements of this section.

(i) The decision of the development office to designate a tourism development district shall be final.

(j) The total number of approved tourism development districts may not exceed five. When the total number of designated tourism development districts equals five, no further designations may be approved by the development office.

(k) Each tourism development district shall terminate by operation of law 99 years from the date approved by the development office, unless a shorter time period for termination is agreed to by the applicant and the development office. The development office may terminate a tourism development district if the development office determines that the tourism development project or tourism development expansion project has been abandoned or ceased operations for five consecutive years.

(l) In accordance with subsections (b) and (c) of this section, and notwithstanding any provision of this code to the contrary, or any municipality’s home rule powers with respect to ordinances and ordinance procedures, including any authority pursuant to the Municipal Home Rule Program under §8-1-5a of this code, designated tourism development districts, and the tourism development projects or tourism development expansion projects therein, may not be subject to the following:

(1) Municipal zoning, historic preservation, horticultural, noise, viewshed, lighting, development, or land use ordinances, restrictions, limitations, or approvals;

(2) Municipal regulation of the sale of alcoholic liquor, nonintoxicating beer, or wine for consumption within the tourism development district;

(3) Municipal building permitting, inspection, or code enforcement;

(4) Municipal license requirements;

(5) The legal jurisdiction of the municipality in which the tourism development district is entirely or partially located, except as specifically provided in this article;

(6) The implementation of any tax, fee, or charge by the municipality, except as specifically provided in this section; or

(7) Any requirement under state law for the consent or approval of the municipality in which the tourism development district is entirely or partially located of any state or county action pursuant to this code, specifically including, but not limited to, §7-11B-1 et seq. of this code, for formal consent of the governing body of a municipality for county or state action regarding the establishment of tax increment financing development or redevelopment districts or the approval of tax increment financing development or redevelopment plans.

(m) Notwithstanding the creation of the tourism development district, the owner, operator, or manager, as applicable, and all concessions and licensees thereof, of the tourism development project or tourism development expansion project located therein shall:

(1) Pay business and occupation tax, if applicable, pursuant to §8-13-5 of this code, to the municipality in the same manner as any other business or commercial venture located within the municipality;

(2) Collect and remit municipal sales and service tax and municipal use tax, if applicable, pursuant to §8-1-5a, §8-13C-4, and §8-13C-5 of this code, to the municipality in the same manner as any other business or commercial venture located within the municipality;

(3) Pay ad valorem real and personal property tax pursuant to the same millage rates as any other business or commercial venture located within the municipality;

(4) Collect and remit hotel occupancy tax, if applicable, to the municipality or county in accordance with §7-18-1 of this code;

(5) Pay all municipal service fees enacted pursuant to §8-13-13 of this code, including, but not limited to, fire, police, sanitation, or city service fees;

(6) Pay all municipal utility rates, fees, and charges for utilities used or consumed during construction and operation of premises within the tourism development district, including, but not limited to, water, sewer, stormwater, and garbage and recycling collection: Provided, That (i) The rates, fees, and charges for such services shall be based on the cost of providing such service and the municipality shall enter into a contract for each such service with the developer and any contracts for water service or sewer service with the municipality shall be subject to review and approval by the Public Service Commission of West Virginia; and (ii) the developer shall only be required to pay any capacity improvement fee or impact fee to the extent that capital additions, betterments, and improvements must be designed, acquired, constructed, and equipped by the municipality to provide such service to the project and any such capacity improvement fee or impact fee for water or sewer service shall be subject to review and approval by the Public Service Commission of West Virginia;

(7) Comply with state laws, regulations, and licensure requirements concerning state control of alcoholic liquors pursuant to chapter 60 of this code and control of nonintoxicating beer pursuant to §11-16-1 et seq. of this code;

(8) Be entitled to municipal police protection and municipal fire protection, if available, in the same manner as any other business or commercial venture located within the municipality;

(9) Design, acquire, construct, and equip the tourism development project or the tourism development expansion project pursuant to the State Building Code in accordance with §8-12-13 of this code and corresponding State Rule 87 CSR 4; and

(10) Provide for inspection of the design, acquisition, construction, and equipping, and any subsequent expansion of the tourism development project or the tourism development expansion project pursuant to standards approved by the West Virginia Development Office.

(n) The West Virginia Department of Transportation may take actions necessary in support of the development of any tourism development project or tourism development expansion project in a tourism development district specifically, including, but not limited to, the development or improvement of such highways, roads, thoroughfares, and sidewalks within the municipality in which the tourism development district is partially or entirely located.

(o) Failure of the Legislature to renew the Tourism Development Act, §5B-2E-1 et seq. of this code, may not, in any way, modify or alter the designation and vested rights of any tourism development district created prior to the failure of the Legislature to renew the Tourism Development Act and any such tourism development district shall continue to exist beyond the termination of the Tourism Development Act.

(p) The development office shall propose rules for legislative approval in accordance with §29A-3-1 et seq. of this code to implement this section, and the rules shall include, but not be limited to:

(1) The application and timeline process;

(2) A nonbinding review of the existing planning and zoning ordinances of any municipality in which the tourism development district is located;

(3) Notice provisions;

(4) The method and timeline for receiving statements of support or opposition from any municipality within or partially within the tourism development district;

(5) Additional application consideration criteria; and

(6) Application fees sufficient to cover the costs of consideration of an application.

(q) The development office shall promulgate emergency rules pursuant to §29A-3-15 of this code by July 1, 2020, to facilitate the implementation of this section.

(r) Pursuant to §2-2-10 of this code, if any provision of this section or the application thereof to any person or circumstance is held unconstitutional or invalid, the unconstitutionality or invalidity shall not affect other provisions or applications of this section, and to this end the provisions of this section are declared to be severable.

ARTICLE 1B. SOUTHERN WEST VIRGINIA LAKE DEVELOPMENT STUDY COMMISSION.

§5B-1B-1. Southern West Virginia Lake Development Study Commission Act.

This article shall be known as the “Southern West Virginia Lake Development Study Commission Act.”

§5B-1B-2. Legislative findings.

(a) The Legislature finds that the southern coalfields of West Virginia, long one of the most productive coal producing areas of the world, having provided untold millions of dollars to the state economy, and having been the financial backbone of the state’s economy for over a century, is now in the midst of a long decline in coal production and population, and because of rugged terrain and remoteness from surrounding regions, suffers from high unemployment and deteriorating infrastructure and economic base, and requires innovative and alternative approaches to revitalization; and therefore demands the Legislature look at innovative ideas and alternatives for new industries and businesses that provide sustainable long term development for southern West Virginia.

(b) The natural beauty of the mountainous regions, now popular with outdoor enthusiasts for its Hatfield McCoy Trail System, would be an ideal location for a large recreational lake or lakes, constructed with hundreds of miles of lake front property, tens of thousands of acres of lake surface, near a four lane highway and situated near large tracts of developable property, with carefully considered design and development, could create a new and exciting recreational area of the state, and provide a myriad of opportunities for further development and with creative initiative could revitalize this area of our state. Such a proposal is worthy of careful study and marshalling the forces of our state and federal governments to thoroughly evaluate and consider this development, maximizing the design and use of a lake or lake system to provide a variety of benefits, potentially including hydro-electric generation, resort developments, housing, and economic opportunities that would create diversity and renewal to this long neglected and deserving area of our state.

§5B-1B-3. Commission created; undertake study; report to the Legislature.

(a) There is hereby created the Southern West Virginia Lake Development Study Commission within the West Virginia Development Office. The commission shall consist of the following members:

(1) The president of the West Virginia Economic Development Council, who will serve as chair of the commission;

(2) Six members designated by each of the county commissions of Boone, Logan, McDowell, Mercer, Mingo, and Wyoming Counties;

(3) One member representing the Department of Environmental Protection, to be appointed by the Governor;

(4) One member representing the Division of Natural Resources, to be appointed by the Governor;

(5) One member representing and having expertise in each of the following fields, to be appointed by the Governor:

(A) Geology;

(B) Land use planning;

(C) Law;

(D) Natural resource management;

(E) Tourism development;

(F) Public recreation;

(G) Hydrology; and

(H) Ecology; and

(6) Six citizen members representing Boone, Logan, McDowell, Mercer, Mingo, and Wyoming to be appointed by the Governor.

(b) The West Virginia University Bureau of Business and Economic Research and the Marshall University Center for Business and Economic Research shall assist the commission by undertaking the study of topics as directed by this section and by the commission. Working with the commission, the two research groups shall investigate lake developments across the region and country to identify what makes large lake developments successful, types of unique amenities and development sites that would promote economic growth, alternative uses for the lake and its resources in power generation, regional resource preservation and integration, enhancement of the Hatfield and McCoy ATV Trail System, and other outdoor recreational opportunities.

(c) The commission shall oversee studies that evaluate where a lake can be located to maximize economic benefits and assess environmental impacts, property ownership assessment and purchasing costs, impacts to mineral ownership and development impacts, and other issues as identified by the commission. The commission is empowered to form specialized committees of experts in various fields of law, science, economic development, geological, mineral, and natural resources to make recommendations and provide expertise in their respective fields regarding viability and implications of lake construction, road location, and resource preservation.

(d) The commission is directed to undertake the inclusion of federal resources for assistance in the study of the feasibility and implementation recommendations. The commission shall pursue federal funding for undertaking the study and the subsequent construction of this project upon the finding of viability of the study project.

(e) The commission may call upon other officers, departments, and agencies of state government to assist in its investigation. Upon the request of the commission, the Attorney General of the state shall render legal research and analysis on legal issues associated with developing recommendations for lawful land development construction and compliance with state and federal laws associated with land acquisition and lake construction, to the commission.

(f) All actual and necessary travel expenses of the members of the commission shall be reimbursed by the member’s employing agency. All other expenses incurred by the commission shall be paid by the Development Office.

§5B-1B-4. Report to the Legislature.

The commission shall provide regular updates to the Legislature, through the Joint Committee on Government and Finance, and shall complete this study and its recommendations by July 1, 2022. The report shall include at a minimum, recommendations for any necessary legislation, funding recommendations, and analysis of the implications and costs associated with the development project provided in this article.

ARTICLE 2J. NATURAL GAS LIQUIDS ECONOMIC DEVELOPMENT ACT.

§5B-2J-1. Short Title.

This article shall be known and cited as the “Natural Gas Liquids Economic Development Act.”

§5B-2J-2. Legislative findings; declaration of public policy.

(a) The Legislature finds that:

(1) The advent and advancement of new and existing technologies and drilling practices have created the opportunity for the efficient development of natural gas, including natural gas liquids such as ethane, propane, butane, isobutane and pentanes, contained in underground shales and other geological formations.

(2) With the development of natural gas liquids from shales and other geological formations comes the opportunity for economic development in related areas of the economy including, but not limited to, manufacturing, transmission and storage of natural gas liquids and related products, the use of such products in manufacturing, the consumption of such products, and the transportation of manufactured products.

(3) Producers of natural gas liquids, transporters and storers of natural gas liquids, and manufacturers of products using natural gas liquids face a significant number of regulatory requirements, some of which may be redundant, inconsistent, or overlapping. Agencies should work together, where practical, to avoid duplication, promote better coordination and reduce these requirements, thus reducing costs, simplifying and harmonizing rules, and streamlining regulatory oversight.

(4) In developing regulatory actions and identifying appropriate approaches, agencies should attempt to promote coordination, simplification, and harmonization.

(5) Agencies should also seek to identify, as appropriate, means to achieve regulatory goals that are designed to promote innovation.

(6) Agencies should review their existing significant legislative, interpretive and procedural rules to determine whether any such rules should be modified, streamlined, expanded or repealed so as to make the agency’s regulatory program more effective and less burdensome in achieving the regulatory objectives.

(7) The West Virginia Economic Development Authority established in §31-15-1 et seq. of this code and the West Virginia Infrastructure and Jobs Development Council created in §31-15A-1 et seq. of this code, should, where appropriate, provide assistance that grows or sustains the natural gas liquids segment of the economy.

(b) The Legislature declares that facilitating the development of business activity directly and indirectly related to development, transportation, storage and use of the natural gas liquids serves the public interest of the citizens of this state by promoting economic development and improving economic opportunities for the citizens of this state.

ARTICLE 9. FLATWATER TRAIL COMMISSION.

§5B-9-1. Flatwater Trail Commission; members, appointment, and expenses.

(a) The Flatwater Trail Commission is hereby created as an independent body corporate. It shall be a commission advisory to the secretary and to the Department of Commerce.

(b) The Flatwater Trail Commission shall consist of five members, who shall be residents and citizens of the state. The commission members shall be appointed by the Governor, by and with the advice and consent of the Senate. Throughout the operation of the commission, at least two of the members shall have knowledge of and experience with nonmotorized watercraft recreation, and at least two members shall have knowledge of and experience with motorized watercraft recreation. Each member shall serve a term of five years. Of the members first appointed, two shall be appointed for a term ending December 31, 2021, and one each for terms ending one, two, and three years thereafter. Commission members may be reappointed to additional terms.

(c) The chair of the Flatwater Trail Commission shall be appointed by the Governor from members then serving on the commission and serves at the will and pleasure of the Governor.

(d) It is the duty of the commission:

(1) To unify and coordinate efforts to develop and establish successful flatwater trails in this state;

(2) To standardize procedures, programs, research, and support for the development and establishment of flatwater trails;

(3) To disseminate information for the purpose of educating the public as to the existence and functions of the commission and as to the availability of state, federal, and nongovernmental resources and support for the development and establishment of flatwater trails; and

(4) To advise, consult, and cooperate with other offices of the Department of Commerce and other agencies of state government, and to receive assistance therefrom in the development of activities and programs of beneficial interest to water recreation and flatwater trails.

(e) The Department of Commerce shall assist the commission in its functions and operations, including, but not limited to, providing administrative, clerical, and technical support, publishing materials developed by the commission, and preparation of proposed legislation to further the purposes of the commission.

(f) Members of the Flatwater Trail Commission are not entitled to compensation for services performed as members. Each member is entitled to reimbursement for reasonable expenses incurred in the discharge of their official duties. All expenses incurred by members shall be paid in a manner consistent with guidelines of the Travel Management Office of the Department of Administration and are payable solely from the funds of the Department of Commerce or from funds appropriated for that purpose by the Legislature. Liability or obligation is not incurred by the commission beyond the extent to which moneys are available from funds of the authority or from the appropriations.

(g) Members shall meet at least quarterly as designated and scheduled by the chair. The presence of three members, in person or by real-time electronic communication, constitutes a quorum to conduct business at a meeting.