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Senate Calendar

thursday, april 28, 2005

114th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

CALLED UP

S. 166     Relating to remote-control hunting..................................................... 678

                        Pending Question:  Shall the bill be read the third time?

                        Sen. Lyons amendment............................................................ 678

CONSIDERATION POSTPONED UNTIL WEDNESDAY, MAY 4, 2005

Second Reading

Favorable

H. 28      Establishing guidelines for the use of outdoor lighting.......................... 679

                        Natural Resources Committee Report...................................... 679

NEW BUSINESS

Second Reading

Favorable

H. 187    Illegal burning of solid waste.............................................................. 679                              Natural Resources and Energy Committee Report......................................................................... 679

H. 287    Long-term care insurance.................................................................. 679

                        Finance Committee Report...................................................... 679

Favorable with Recommendation of Amendment

S. 98       Voc. rehabilitation & payment under workers compensation.............. 679

                        Ec. Dev., Housing & General Affairs Committee Report.......... .680

                        Finance Committee Report...................................................... 683

Favorable with Proposal of Amendment

H. 71      Unemployment compensation contribution rate manipulation.............. 683

                        Ec. Dev., Housing & General Affairs Committee Report........... 683

H. 188    Sale and storage of fuel products containing th additive MTBE........... 684

                        Natural Resources and Energy Committee Report.................... 684

House Proposal of Amendment

S. 52       Renewable energy, appliance efficiency & distributed electricity ........ 685

NOTICE CALENDAR

Favorable

H. 184    Taking deer damaging crops............................................................. 702

H. 505    Amending the charter of the city of Burlington.................................... 702

Favorable with Proposal of Amendment

H. 163    Criminal abuse, neglect, and exploitation of vulnerable adults.............. 703

                        Judiciary Committee Report..................................................... 703

H. 199    Relating to regulation of professions and occupations......................... 717

                        Government Operations Committee Report.............................. 717

H. 523    State transportation program............................................................. 720

                        Transportation Committee Report............................................ 720

                        Appropriations Committee Report........................................... 741

House Proposal of Amendment to Senate Proposal of Amendment

H. 243    Installation of carbon monoxide detectors in housing.......................... 742

Concurrent Resolutions for Notice Under Rule 16

HCR 104  10th Anniversary of volunteer long-term care ombudsmen............... 187

HCR 105  2004-2005 UVM championship men’s basketball team.................. 189

HCR 106  Ripton town clerk and treasurer Timothy Hanson............................ 191

HCR 107  Ellen Sulek 2004 Presidential Award for Excellence........................ 191

HCR 108  Ernest Boule of Tinmouth on the occasion of his 95th birthday......... 193

HCR 109  Welcoming Commission on Alzheimers disease and disorders......... 193

HCR 110  Burlington Electric Department centennial anniversary..................... 195

HCR 111  Honoring Hannah Kearney 2005 women’s moguls champion.......... 196

HCR 112  Congratulating Rutland hometown heroes....................................... 197

HCR 113  Carol Amos 2004 Presidential Award for Excellence...................... 199

HCR 114  Congratulating Parks Place Community Resources Center.............. 200

HCR 115  2005 University of Vermont EISA championship ski team............... 201

ORDERED TO LIE

S. 117     State recognition of the Abenaki people............................................ 742

S. 157     Relating to rulemaking for Vermont origin.......................................... 742




 

ORDERS OF THE DAY

ACTION CALENDAR

CALLED UP

S. 166

An act relating to remote-control hunting.

PENDING QUESTION:  Shall the bill be read the third time?

AMENDMENT TO S. 166 TO BE OFFERED BY SENATOR LYONS, ON BEHALF OF THE COMMITTEE ON NATURAL RESOURCES AND ENERGY

Senator Lyons, on behalf of the Committee on Natural Resources and Energy, moves to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  10 V.S.A. § 4715 is added to read:

§ 4715.  REMOTE-CONTROL HUNTING

(a)  As used in this section:

(1)  “Remote-control hunting” means the use of a computer or any other technology to control remotely the aiming and discharge of any weapon such as a firearm, bow, or spear to take a wild animal or captive animal.

(2)  “Captive animal” includes an animal which has been brought into and kept in captivity for the purpose of taking it, and any increase of such animal.

(b)  No person shall take a wild animal or captive animal using a remote-control hunting device.  This subsection applies to any person who is in Vermont while using a remote-control hunting device regardless of the location of the animal taken.

(c)  No person shall establish or operate a remote-control hunting site in Vermont.

(d)  No person shall import, export, or possess a wild animal or captive animal, or part of thereof,  taken by a remote-control hunting device.

Sec. 2.  EFFECTIVE DATE

This act shall take effect on passage.


CONSIDERATION POSTPONED UNTIL WEDNESDAY, MAY 4, 2005

Second Reading

Favorable

H. 28

An act relating to establishing guidelines for the use of outdoor lighting.

Reported favorably by Senator Snelling for the Committee on Natural Resources and Energy.

(Committee vote: 6-0-0)

(For House amendments, see House Journal for April 12, 2005, page 635; April 13, 2005, page 647).

NEW BUSINESS

Second Reading

Favorable

H. 187

An act relating to municipal authority to enforce against illegal burning of solid waste.

Reported favorably by Senator Bartlett for the Committee on Natural Resources and Energy.

(Committee vote: 6-0-0)

(No House amendments)

H. 287

An act relating to long-term care insurance.

Reported favorably by Senator Ayer for the Committee on Finance.

(Committee vote: 5-1-1)

(For House amendments, see House Journal for April 14, 2005, page 657).

Favorable with Recommendation of Amendment

S. 98

An act relating to vocational rehabilitation and payment of compensation under workers’ compensation.

Reported favorably with recommendation of amendment by Senator MacDonald for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

* * * Vocational Rehabilitation Rule * * *

Sec. 1.  21 V.S.A. § 641(a) is amended to read:

(a)  When as a result of an injury covered by this chapter, an employee is unable to perform work for which the employee has previous training or experience, the employee shall be entitled to vocational rehabilitation services, including retraining and job placement, as may be reasonably necessary to restore the employee to suitable employment.  Vocational rehabilitation services shall be provided as follows:

* * *

(3)  The commissioner shall adopt rules to assure that a worker who requests services or who has received more than 90 days of continuous temporary total disability benefits is timely and cost-effectively screened for benefits under this section.  The rules shall:

(A)  Provide that all vocational rehabilitation work, including initial screenings, full entitlement assessments, and counseling, shall be performed by a Vermont-certified vocational rehabilitation counselor which shall include those counselors currently certified pursuant to the rules of the department. 

(B)  Provide for an initial screening to determine whether a full assessment is appropriate.  An injured worker who is determined to be eligible for benefits shall have an appropriate initial vocational a full assessment shall be timely assessed and be offered appropriate vocational rehabilitation services. 

(C)  The commissioner shall adopt rules to provide Provide a mechanism for a periodic review and timely screening of injured workers who are initially found not to be ready or eligible for vocational rehabilitation services a full assessment to determine whether a full assessment has become appropriate. 

(D)  Protect against potential conflicts of interest in the assignment and performance of initial screenings.

(E)  Assure the injured worker has a choice of a vocational rehabilitation counselor. 

* * *

(5)  The commissioner may set by rule reasonable reimbursement rates for vocational rehabilitation benefits and services, provided access to vocational rehabilitation services is not diminished and reasonable choices and access to benefits and services are maintained.  The reimbursement shall reflect the current market hourly rate of vocational rehabilitation services as determined by a survey of vocational rehabilitation providers, including solo practitioners, small firms, and large firms.  The fee schedule shall require the individual vocational rehabilitation counselor who provides services to review, initial, and certify the accuracy of the billing.

(6)  The commissioner shall make annual reports to the general assembly on the success and status of the workers’ compensation vocational rehabilitation program.

* * * Discontinuance of Benefits * * *

Sec. 2.  21 V.S.A. § 643a is amended to read:

§ 643a.  DISCONTINUANCE OF BENEFITS

Unless an injured worker has successfully returned to work, an employer shall notify both the commissioner and the employee prior to terminating benefits under either section 642 or section 646 of this title.  The notice of intention to discontinue payments shall be filed on forms prescribed by the commissioner and shall include the date of the proposed discontinuance and the reasons for it.  The liability for the payments shall continue for 7 seven days after the notice is received by the commissioner and the employee.  Those payments shall be made without prejudice to the employer and may be deducted from any amounts due pursuant to section 648 of this title if the commissioner determines that the discontinuance is warranted or if otherwise ordered by the commissioner.  Every notice shall be reviewed by the commissioner to determine the sufficiency of the basis for the proposed discontinuance.  If, upon review, the commissioner finds that the evidence does not reasonably support the proposed discontinuance, the commissioner may shall order that payments continue until a hearing is held and a decision is rendered.

* * * Failure to Pay Benefits * * *

Sec. 3.  21 V.S.A. § 650(e) is amended to read:

(e)  If weekly compensation benefits or weekly accrued benefits are not paid within 21 days after becoming due and payable pursuant to an order of the commissioner, or in cases in which the overdue benefit is not in dispute, ten percent of the overdue amount shall be added and paid to the employee, in addition to interest and any other penalties.  In the case of an initial claim, benefits are due and payable upon entering into an agreement pursuant to subsection 662(a) of this title, upon issuance of an order of the commissioner pursuant to subsection 662(b) of this title, or if the employer has not denied the claim within 21 days after the claim is filed.  Benefits are in dispute if the claimant has been provided actual written notice of the dispute within 21 days of the benefit being due and payable and the evidence reasonably supports the denial.  Interest shall accrue and be paid on benefits that are found to be compensable during the period of nonpayment.  The commissioner shall promptly review requests for payment under this section and shall allow for the recovery of reasonable attorney fees associated with an employee’s successful request for payment under this subsection.

* * * Interim Orders * * *

Sec. 4.  21 V.S.A § 662(b) is amended to read:

(b)  In the absence of an agreement pursuant to subsection (a) of this section, the employer or insurance carrier shall notify the commissioner and the employee in writing that the claim is denied and the reasons therefor.  Upon the employee’s application for a hearing under section 663 of this title, within 60 days, the commissioner may shall review the evidence upon which denial is based and if the evidence does not reasonably support the denial, the commissioner may shall order that payments be made until a hearing is held and a decision is rendered.  Payments pursuant to this subsection shall not be deemed an admission of liability by the employer nor shall such payments preclude subsequent agreement under subsection (a) of this section or prejudice the rights of either party to hearing or appeal under this chapter.

Nothing in this section shall require the commissioner to order payments pending a hearing if the commissioner concludes that the claim is not compensable regardless of the lack of evidence supporting the denial.  For the purposes of this section, any communication by an unrepresented claimant that questions the denial shall be deemed to be an application for hearing under section 663 of this title.

* * * Lump Sum Payment * * *

Sec. 5.  21 V.S.A. § 652(c) is added to read:

(c)  Unless otherwise requested by the claimant, an order for a lump sum payment of permanent partial or permanent total disability benefits or a lump sum settlement of a disputed claim shall include a provision accounting for excludable expenses and prorating the remainder of the lump sum payment in the manner set forth by the Social Security Administration in order to protect the claimant’s entitlement to Social Security benefits.

(Committee vote: 3-2-1)

Reported favorably with recommendation of amendment by Senator MacDonald for the Committee on Finance.

The Committee recommends that the bill be amended as recommended by the Committee on Economic Development, Housing and General Affairs with the following amendments thereto:

First:  In Sec. 1, 21 V.S.A. § 641(a)(3) by striking out subdivision (A) and inserting in lieu thereof the following:

(A)  Provide that all vocational rehabilitation work, except for initial screenings, shall be performed by a Vermont-certified vocational rehabilitation counselor including counselors currently certified pursuant to the rules of the department.  Initial screenings shall be performed by an individual with sufficient knowledge or experience to adequately perform the vocational rehabilitation screening functions. 

Second:  In Sec. 4, 21 V.S.A. § 662(b) by striking out the final two sentences and inserting in lieu thereof the following:

Nothing in this section shall require the commissioner to order payments pending a hearing if the commissioner concludes that the benefit at issue is not compensable regardless of the lack of evidence supporting the denial.  For the purposes of this section, any written communication by an unrepresented claimant that questions the denial of any benefit shall be deemed to be an application for hearing under section 663 of this title.  

(Committee vote: 4-2-1)

Favorable with Proposal of Amendment

H. 71

An act relating to unemployment compensation contribution rate manipulation.

Reported favorably with recommendation of proposal of amendment by Senator Illuzzi for the Committee on Economic Development, Housing and General Affairs.

The Committee recommends that the Senate propose to the House to amend the bill by striking out Sec. 2 in its entirety

(Committee Vote: 4-0-2)

Reported favorably by Senator MacDonald for the Committee on Finance.

(Committee vote: 6-0-1)

(For House amendments, see House Journal for February 17, 2005, page 223.)

H. 188

An act relating to prohibiting the sale and storage of fuel products containing the additive MTBE.

Reported favorably with recommendation of proposal of amendment by Senator Coppenrath for the Committee on Natural Resources and Energy.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  In Sec. 1, 10 V.S.A. § 577(a), by striking out the word “ether” where it twice appears and inserting in lieu thereof the words gasoline ether

Second:  In Sec. 1, 10 V.S.A. § 577(b) by striking out subdivision (1) and inserting in lieu thereof the following:

(1)  “Ether” means an organic compound formed by the treatment of an alcohol with a dehydrating agent resulting in two organic radicals joined by an oxygen atom.

Third:  In Sec. 1, 10 V.S.A. § 577(b), by adding subdivision (3) to read as follows:

(3)  “Gasoline ether” means any ether added to a fuel product, including methyl tertiary butyl ether (MTBE), tertiary amyl methyl ether (TAME), di‑isopropyl ether (DIPE), and ethyl butyl ether (ETBE).  “Gasoline ether” shall not include prepackaged goods intended for retail use, including starting fluid and octane booster.

Fourth:  By adding Secs. 2 and 3 to read as follows:

Sec. 2.  AGENCY OF NATURAL RESOURCES REPORT

By January 15, 2006, the agency of natural resources shall report to the house and senate committees on natural resources and energy with a recommendation regarding the need to ban the sale of gasoline containing alcohols used as oxygenates.  The report shall include a summary of available data addressing environmental and health effects of alcohols used as gasoline oxygenates, with specific reference, when data is available, to the following alcohols:  methanol, isopropanol, n-propanol, n-butanol, iso-butanol, sec‑butanol, tertiary‑butanol, or tertiary pentanol.  The report shall also include an evaluation of the potential impacts that restricting the use of alcohols as oxygenates would have on the production, price, and supply of gasoline in the region and Vermont.

Sec. 3.  10 V.S.A. § 561(a) is amended to read:

(a)  A person who owns or is in control of any plant, building, structure, process, or equipment may apply to the secretary for a variance from the rules adopted under this chapter.  If a request for a variance is related to an application for a permit under this chapter, the applicant may file that request only after the secretary has issued a declaratory ruling that makes it clear that the applicant would not be eligible for the permit or after the secretary has granted or denied the permit, according to the provisions of subsection 562(e) of this title.  The secretary may grant a variance if the secretary finds that:

* * *

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for March 9, 2005, page 325.)

House Proposal of Amendment

S. 52

An act relating to renewable energy portfolio standards, appliance efficiency standards and distributed electricity.

The House proposes to the Senate to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

* * * I.  Renewable Portfolio Standards * * *

Sec. 1.  30 V.S.A. § 8001(a) is amended to read:

§ 8001.  RENEWABLE ENERGY GOALS

(a)  The renewable energy programs authorized under this chapter shall be designed and implemented to achieve the following goals:

(1)  Air and water quality shall be protected and promoted in renewable energy programs.

(2)  The continued acquisition of cost-effective end-use energy efficiency measures shall be preserved and enhanced in renewable energy programs.

(3)  Programs shall, to the extent practicable, support development of renewable energy and energy efficiency industries and infrastructure in Vermont, while still sustaining existing renewable energy infrastructure.

(4)  Programs shall, to the extent practicable, be designed and implemented in a manner that balances program benefits and costs, and rates.

The general assembly finds it in the interest of the people of the state to promote the state energy policy established in section 202a of this title by:

(1)  Balancing the benefits, lifetime costs, and rates of the state’s overall energy portfolio to ensure that to the greatest extent possible the economic benefits of renewable energy in the state flow to the Vermont economy in general, and to the rate paying citizens of the state in particular.

(2)  Supporting development of renewable energy and related energy industries in Vermont, in particular, while retaining and supporting existing renewable energy infrastructure.

(3)  Providing an incentive for the state’s retail electricity providers to enter into affordable, long-term, stably-priced renewable energy contracts that mitigate market price fluctuation for Vermonters.

(4)  Developing viable markets for renewable energy and energy efficiency projects.

(5)  Protecting and promoting air and water quality by means of renewable energy programs.

(6)  Contributing to reductions in global climate change and anticipating the impacts on the state’s economy that might be caused by federal regulation designed to attain those reductions.

Sec. 2.   30 V.S.A. § 8002 is amended to read:

§ 8002.  DEFINITIONS

For purposes of this chapter:

(1)(A)  “Renewable pricing” shall mean an optional service provided or contracted for by an electric company:

(i)  under which the company’s customers may voluntarily either:

(I)  purchase all or part of their electric energy from renewable sources as defined in this chapter; or

(II)  cause the purchase and retirement of tradeable renewable energy credits on the participating customer’s behalf; and

(ii)  which increases the company’s reliance on renewable sources of energy beyond those the electric company would otherwise be required to provide under section 218c of this title.

(B)  Renewable pricing programs may include, but are not limited to:

(i)  contribution-based programs in which participating customers can determine the amount of a contribution, monthly or otherwise, that will be deposited in a board-approved fund for new renewable energy project development;

(ii)  energy-based programs in which customers may choose all or a discrete portion of their electric energy use to be supplied from renewable resources;

(iii)  facility-based programs in which customers may subscribe to a share of the capacity or energy from specific new renewable energy resources.

(2)  “Renewable energy” means energy produced using a technology that relies on a resource that is being consumed at a harvest rate at or below its natural regeneration rate.

(A)  For purposes of this subdivision (2), methane gas and other flammable gases produced by the decay of sewage treatment plant wastes or landfill wastes and anaerobic digestion of agricultural products, byproducts, or wastes shall be considered renewable energy resources, but no form of solid waste, other than agricultural or silvicultural waste, shall be considered renewable.

(B)  For purposes of this subdivision (2), no form of nuclear fuel shall be considered renewable.

(C)  For purposes of this chapter, the only energy produced by a hydroelectric facility to be considered renewable shall be from a hydroelectric facility with a generating capacity of 80 200 megawatts or less.

(D)  After conducting administrative proceedings, the board may add technologies or technology categories to the definition of “renewable energy,” provided that technologies using the following fuels shall not be considered renewable energy supplies:  coal, oil, propane, and natural gas.

(3)  “Existing renewable energy” means all types of renewable energy sold from the supply portfolio of a Vermont retail electricity provider that is not considered to be from a new renewable energy source.

(4)  “New renewable energy” means renewable energy produced by a generating resource coming into service after December 31, 2004.  This may include the additional energy from an existing renewable facility retrofitted with advanced technologies or otherwise modified or expanded to increase the kwh output of the facility.  If the production of new renewable energy through retrofitting involves combustion of the resource, the system must result in an incrementally higher level of energy conversion efficiency or significantly reduced emissions. For the purposes of this chapter, renewable energy refers to either “existing renewable energy” or “new renewable energy.”

(5) “Qualifying SPEED resources” means contracts for in-state resources in the SPEED program established under section 8005 of this title that meet the definition of new renewable energy under this section, whether or not renewable energy credits are attached.

(6)  “Nonqualifying SPEED resources” means contracts for in-state resources in the SPEED program established under section 8005 of this title that are combined heat and power facilities that are not fueled by renewable energy resources and that have a total system efficiency of 65 percent, or more.

(7)  “Energy conversion efficiency” means the effective use of energy and heat from a combustion process.

(8) “Tradeable renewable energy credits” means all of the environmental attributes associated with a single unit of energy generated by a renewable energy source where:

* * *

(9)  “Retail electricity provider” means a company engaged in the distribution or sale of electricity directly to the public or to be used ultimately by the public for any combination of lighting, heating, and power.

Sec. 3.  30 V.S.A. § 8004 is amended to read:

§ 8004.  RENEWABLE PORTFOLIO STANDARDS FOR SALES OF ELECTRIC ENERGY

(a)  The public service board shall design a proposed renewable portfolio standard in the form of draft legislation.  The standard shall be developed with the aid of a renewable portfolio standard collaborative.  The renewable portfolio standard collaborative, composed of representatives from the electric utilities, industry, renewable energy industry, ratepayers, environmental and consumer groups, the department of public service, and other stakeholders identified by the board, shall aid in the development of a renewable portfolio standard for renewable energy resources, as well as requirements for implementation of and compliance with that standard.  The proposed renewable portfolio standard shall be applicable to all providers of electricity to retail consumers in this state.  The proposed renewable portfolio standard developed by the board will be presented to the house committee on commerce, the house and senate committees on natural resources and energy, and the senate committee on finance in the form of draft legislation for consideration in January 2004.

(b)  In developing the renewable portfolio standard, the board shall consider the following goals, which shall be afforded equal weight in formulating the standard:

(1)  increase the use of renewable energy in Vermont in order to capture the benefits of renewable energy generation for Vermont ratepayers and citizens.

(2)  maintain or reduce the rates of electricity being paid by Vermont ratepayers and lessen the price risk and volatility for future ratepayers.

(a)  Except as otherwise provided in section 8005 of this title, in order for Vermont retail electricity providers to achieve the goals established in section 8001 of this title, no retail electricity provider shall sell or otherwise provide or offer to sell or provide electricity in the state of Vermont without ownership of sufficient energy produced by renewable resources as described in this chapter, or sufficient tradeable renewable energy credits that reflect the required renewable energy as provided for in subsection (b) of this section.  In the case of consenting members of the Vermont Public Power Supply Authority, the requirements of subsection (b) of this section may be met in the aggregate through all requirements contracts pursuant to section 4002a of this title, or in the aggregate otherwise as approved by the board.

(b) Each retail electricity provider in Vermont shall provide a certain amount of new renewable resources in its portfolio.  Pursuant to 30 V.S.A. § 8005(d)(1) each retail electricity provider in Vermont shall supply an amount of energy equal to its total incremental energy growth between January 1, 2005 and January 1, 2012 through the use of electricity generated by new renewable resources.  The retail electricity provider may meet this requirement through eligible new renewable energy credits, new renewable energy resources with renewable energy credits still attached, or a combination of those credits and resources.  No retail electricity provider shall be required to provide in excess of a total of 10 percent of its calendar year 2005 retail electric sales with electricity generated by new renewable resources.

(c) The requirements of subsection (b) of this section shall apply to all retail electricity providers in this state, unless the retail electricity provider demonstrates and the public service board determines that compliance with the standard would impair the provider's ability to meet the public’s need for energy services after safety concerns are addressed, at the lowest present value life cycle cost, including environmental and economic costs. 

(d)  The public service board shall provide, by order or rule, the regulations and procedures that are necessary to allow the public service board and the department of public service to implement and supervise further the implementation and maintenance of a renewable portfolio standard.

(e)  In lieu of, or in addition to purchasing tradeable renewable energy credits to satisfy the portfolio requirements of this section, a retail electricity provider in this state may pay to a renewable energy fund established by the public service board an amount per kilowatt hour as established by the board. As an alternative, the board may require any proportion of this amount to be paid to the energy conservation fund established under subsection 209(d) of this title.

(f) Before December 30, 2007 and again before December 30, 2009, the public service board shall file a report  with the Senate Committees on Finance and on Natural Resources and Energy and the House Committees on Commerce and on Natural Resources and Energy.  The report shall include the following:

(1) the total cumulative load growth in Vermont from 2005 through the end of the year that precedes the date on which the report is due;

(2) a report on the market for tradeable renewable energy credits, including the prices at which credits are being sold;

(3) a report on the SPEED program, and any projects using the program;

(4) a summary of other contracts held or projects developed by Vermont retail electricity providers that are likely to be eligible under the provisions of  subsection 8005 (d) of this title;

(5) an estimate of potential effects on rates, economic development and jobs, if the target established in subsection 8005(d) of this section is met, and if it is not met;

(6) an assessment of the supply portfolios of Vermont retail electricity providers, and the resources available to meet new supply requirements likely to be triggered by the expiration of major power supply contracts;

(7) an assessment of the energy efficiency and renewable energy markets and recommendations to the legislature regarding strategies that may be necessary to encourage the use of these resources to help meet upcoming supply requirements; and

(8)  any recommendations for statutory change related to this section, including recommendations for rewarding utilities that make substantial investments in SPEED resources. 

 Sec. 4. 30 V.S.A. §§ 8005 and 8006 are added to read:

§ 8005.  SUSTAINABLY PRICED ENERGY ENTERPRISE DEVELOPMENT (SPEED) PROGRAM

(a)  In order to achieve the goals of section 8001 of this title, there is created the Sustainably Priced Energy Enterprise Development (SPEED) program.  The SPEED program shall have two categories of projects: qualifying SPEED resources and nonqualifying SPEED resources.

 (b)  The SPEED program shall be established, after notice and hearing, by the public service board by January 1, 2007.  As part of the SPEED program, the public service board may:

(1)  name one or more entities to become engaged in the purchase and resale of electricity generated within the state by means of qualifying SPEED resources or nonqualifying SPEED resources;

(2)  allow the developer of a facility that is one megawatt or less, and is a qualifying SPEED resource or a nonqualifying SPEED resource, to sell that power under a long term contract that is established at a specified margin below the hourly spot market price;

(3)  encourage Vermont’s retail electricity providers to secure long term contracts for renewable energy that are anticipated to be below the long term market price, over the lives of the projects.  The board may create a competitive bid process through which to select a portion of those contracts;

(4)  maximize the benefit to rate payers from the sale of renewable energy credits or other credits that may be developed in the future, especially with regard to the projects approved under subdivision (3) of this subsection;

(5)  encourage retail electricity provider sponsorship and partnerships in the development of renewable energy projects;

(6)  make available to Vermont retail electricity providers for purchase, on a pro rata basis, a specified portion of the power generated under subdivisions (2) and (3) of this subsection.  A retail electricity provider that chooses not to purchase a pro rata share of power generated under subdivision (3) of this section, must establish, to the satisfaction of the board, that the purchase would impair the provider’s ability to meet the public’s need for energy services after safety concerns are addressed, at the lowest present value life cycle cost, including environmental and economic costs;

(7) establish a method for Vermont retail electrical providers to obtain beneficial ownership of the renewable energy credits associated with any SPEED projects, in the event that a renewable portfolio standard is in effect under the provisions of section 8004 of this title;

(8)  create a mechanism by which a retail electricity provider may establish that it has a sufficient amount of renewable energy, or resources that would otherwise qualify under the provisions of subsection (d) of this section, in its portfolio so that equity requires that the retail electricity provider be relieved, in whole or in part, from requirements established under subdivision (6) of this subsection that would require a retail electricity provider to purchase SPEED power;

(9)  provide that in any proceeding under subdivision 248(a)(2)(A) of this title, a demonstration of compliance with subdivision 248(b)(2) of this title, relating to establishing need for the facility, shall not be required if the facility is a SPEED resource and if no part of the facility is financed directly or indirectly through investments, other than power contracts, backed by Vermont electricity ratepayers; and

(10)  take such other measures as the board finds necessary or appropriate to implement SPEED.

(c)  Developers of qualifying and nonqualifying SPEED resources shall be entitled to classification as an eligible facility under 10 V.S.A. chapter 12, relating to the Vermont Economic Development Authority. 

(d)(1)  The public service board shall meet on or before January 1, 2012, open a proceeding, and issue findings determining the amount of qualifying SPEED resources that have come into service or are projected to come into service during the period of time between January 1, 2005 and January 1, 2013.  If the board finds that the amount of qualifying SPEED resources coming into service during that time exceeds total statewide growth in demand during that time, or if it finds that the amount of qualifying SPEED resources exceeds 10 percent of total statewide load for calendar year 2005, the portfolio standards established under this chapter shall not be in force.  The board shall make its determination by July 1, 2012.  If the board finds that the goal established has not been met, one year aftet the board’s determination the portfolio standards established under subsection 8004(b) of this title shall take effect.

(2)  For the purposes of the determination to be made under this subsection, electricity produced at all facilities owned by or under long-term contract to Vermont retail electricity providers, whether it is generated inside or outside Vermont, that is new renewable energy shall be counted in the calculations under subdivision (d)(1) of this section.

(e)  By no later than September 1, 2006, the public service board shall provide, by order or rule, the regulations and procedures that are necessary to allow the public service board and the department of public service to implement, and to supervise further the implementation and maintenance of the SPEED program.

 § 8006. TRADEABLE CREDITS

(a)  The public service board shall establish or adopt a system of tradeable renewable energy credits for renewable resources that may be earned by electric generation qualifying for the renewables portfolio standard.  The system shall be designed to be consistent with regional practices.

(b)  The public service board shall ensure that all electricity provider and provider-affiliate disclosures and representations made with regard to a provider’s portfolio are accurate and reasonably supported by objective data.  Further, the public service board shall ensure that providers disclose the types of generation used and whether the energy is Vermont‑based, and shall clearly distinguish between energy or tradeable energy credits provided from renewable and nonrenewable sources and existing and new sources.

Sec. 5. 10 V.S.A. § 212(6) is amended to read:

(6)  “Eligible facility” or “eligible project” means any industrial, commercial, or agricultural enterprise or endeavor approved by the authority that meets the criteria established in the Vermont sustainable jobs strategy adopted by the governor under section 280b of this title, including land and rights in land, air, or water, buildings, structures, machinery, and equipment of such eligible facilities or eligible projects, except that an eligible facility or project shall not include the portion of an enterprise or endeavor relating to the sale of goods at retail where such goods are manufactured primarily out of state, and except further that an eligible facility or project shall not include the portion of an enterprise or endeavor relating to housing.  Such enterprises or endeavors may include:

* * *

(L)  a captive or commercial insurance underwriter, a mortgage, commercial, or consumer credit provider, or an entity engaged in underwriting or brokering services; or

(M)  qualifying Sustainably Priced Energy Enterprise Development (SPEED) resources or nonqualifying SPEED resources, as defined in 30 V.S.A. § 8002; or

(N)  any combination of the foregoing activities, uses, or purposes. An eligible facility may include structures, appurtenances incidental to the foregoing such as utility lines, storage accommodations, offices, dependent care facilities, or transportation facilities.

* * * II.  Distributed Generation and Energy Efficiency * * *

* * * Combined heat and power and efficiency utility cap  * * *

Sec. 6.  30 V.S.A. § 209(d) and (e) are amended to read:

(d)(1)  The public service department, any entity appointed by the board under subdivision (2) of this subsection, all gas and electric utility companies, and the board upon its own motion, are encouraged to propose, develop, solicit, and monitor energy efficiency and conservation programs and measures, including appropriate combined heat and power systems that result in the conservation and efficient use of energy and meet the applicable agency of natural resources’ air quality standards.  Such programs and measures, and their implementation, may be approved by the board if it determines they will be beneficial to the ratepayers of the companies after such notice and hearings as the board may require by order or by rule.

(2)  In place of utility-specific programs developed pursuant to section 218c of this title, the board may, after notice and opportunity for hearing, provide for the development, implementation, and monitoring of gas and electric energy efficiency and conservation programs and measures including programs and measures delivered in multiple service territories, by one or more entities appointed by the board for these purposes.  The board may include appropriate combined heat and power systems that result in the conservation and efficient use of energy and meet the applicable agency of natural resources’ air quality standards.  The board may specify that the implementation of these programs and measures satisfies a utility’s corresponding obligations, in whole or in part, under section 218c of this title and under any prior orders of the board.

* * *

(4) The charge established by the board pursuant to subdivision (3) of this subsection shall not exceed the amount needed to provide $17,500,000.00 to support all energy efficiency programs for Vermonters authorized by the board by rule or order pursuant to subdivision (2) of this subsection in any fiscal year. No more than $17,500,000.00 of financial support for energy efficiency programs for Vermonters shall be authorized by the board by rule or order pursuant to subdivision (2) of this subsection in any fiscal year be in an amount determined by the board by rule or order that is consistent with the principles of least cost integrated planning as defined in section 218c of this title.  The department of public service is directed to study and make recommendations on the feasibility of  establishing grant programs for new renewable generation systems on farms.­ In setting the amount of the charge and its allocation, the board shall determine an appropriate balance among the following objectives: providing efficiency and conservation as a part of a comprehensive resource supply strategy; providing the opportunity for all Vermonters to participate in efficiency and conservation programs; and the value of targeting efficiency and conservation efforts to locations, markets or customers where they may provide the greatest value. The board, by rule or order, shall establish a process by which a customer may apply to the board for an exemption from some or all of the charges assessed under this subdivision.  The board shall establish criteria by which these applications shall be measured.  Any such exemption shall extend for a period of time not to exceed one year.  In addition, the board may authorize exemptions only if, at a minimum, a customer demonstrates that, during the preceding year, it implemented an extraordinary amount of cost‑effective energy efficiency at the customer's own expense or incurred extraordinary costs on those measures and the customer did and will not receive reimbursement for those measures from the entity designated by the board under this section.

     (e) The board shall:

* * *

           (14)  Consider the impact on retail electric rates of programs delivered under subsection (d) of this section.

 

Sec. 7.  STANDARDS FOR INTERCONNECTION OF DISTRIBUTED GENERATION

On or before September 1, 2006, the public service board shall establish by rule or order standard provisions, including applicable fees that are required to cover the total cost of interconnection to be paid by the qualified distributed generator, for agreements providing for interconnection between the facilities of a retail electricity provider under the jurisdiction of the board and the facilities of a qualified distributed generator.  The applicable safety, power quality, and interconnection requirement rules adopted by the board pursuant to section 219a of Title 30 shall be utilized in addition to any other requirements necessary to protect public safety and system reliability.  The board may provide that such interconnection agreements may be conditioned in instances where interconnection would cause electric instability on the facilities of the local distribution grid.  For the purposes of this section, “qualified distributed generator” means an electrical generator that has a capacity of less than 50 megawatts or a lower megawatt capacity established by the board in order to avoid federal preemption, and that is either:

(1)  a renewable generator as defined in section 8002 of Title 30; or

(2)  a generator that is part of a combined heat and power application providing an overall energy conversion efficiency of 65 percent or greater.

* * * III.  Transmission and Distribution * * *

* * * Regulatory policy * * *

Sec. 8.  ADVOCACY FOR REGIONAL ELECTRICITY RELIABILITY POLICY

It shall be the policy of the state of Vermont, in negotiations and

policy-making at the New England Independent System Operator, in proceedings before the Federal Energy Regulatory Commission, and in all other relevant venues, to support an efficient reliability policy, as follows:

(1)  When cost recovery is sought through regionwide regulated rates or uplift tariffs for power system reliability improvements, all available resources – transmission, strategic generation, targeted energy efficiency, and demand response resources – should be treated comparably in analysis, planning, and access to funding.

(2)  A principal criterion for approving and selecting a solution should be whether it is the least-cost solution to a system need on a total cost basis.

(3)  Ratepayers should not be required to pay for system upgrades in other states that do not meet these least-cost and resource-neutral standards.

(4)  For reliability-related projects in Vermont, subject to the review of the public service board, regional financial support should be sought and made available for transmission and for distributed resource alternatives to transmission on a resource-neutral basis.

(5)  The public service department, public service board, and attorney general shall advocate for these policies in negotiations and appropriate proceedings before the New England Independent System Operator, the New England Regional Transmission Operator, the Federal Energy Regulatory Commission, and all other appropriate regional and national forums.  This subdivision shall not be construed to compel litigation or to preclude settlements that represent a reasonable advance to these policies.

(6)  In addressing reliability problems for the state’s electric system, Vermont retail electricity providers and transmission companies shall advocate for regional cost support for the least cost solution with equal consideration and treatment of all available resources, including transmission, strategic distributed generation, targeted energy efficiency, and demand response resources on a total cost basis.  This subdivision shall not be construed to compel litigation or to preclude settlements that represent a reasonable advance to these policies.

* * * Transmission and Distribution Planning * * *

Sec. 9.  30 V.S.A. § 218c is amended to read:

§ 218c. LEAST COST INTEGRATED PLANNING

* * *

(d)(1) Least cost transmission services shall be provided in accordance with this subsection.  Not later than July 1, 2006, any utility not required to file a least cost integrated plan under subsection (b) of this section and having satisfied the requirements of subsection (b) that owns or operates (or any combination of utilities that, together, own or operate) electric transmission facilities serving the state of Vermont, in conjunction with any other utilities that own or operate these facilities, jointly shall prepare and file with the department of public service and the public service board a transmission system plan that looks forward for a period of at least ten years.  A copy of the plan shall be filed with each of the following: the House Committees on Commerce and on Natural Resources and Energy and the Senate Committees on Finance and on Natural Resources and Energy.  The objective of the plan shall be to identify the potential need for transmission system improvements as early as possible, in order to allow sufficient time to plan and implement more cost‑effective non‑transmission alternatives to meet reliability needs, wherever feasible.  The plan shall:

(A) identify existing and potential transmission system reliability deficiencies by location within Vermont,

(B) estimate the date, and identify the local or regional load levels and other likely system conditions at which these reliability deficiencies, in the absence of further action, would likely occur,

(C) describe the likely manner of resolving the identified deficiencies through transmission system improvements,

(D) estimate the likely costs of these improvements,

(E) identify potential obstacles to the realization of these improvements, and

(F) identify the demand or supply parameters that generation, demand response, energy efficiency or other non‑transmission strategies would need to address to resolve the reliability deficiencies identified.

(2)  Prior to the adoption of the first transmission system plan, a utility preparing a plan shall host at least two public meetings at which it shall present a draft of the plan.  The meetings shall be at separate locations within the state, in proximity to the transmission facilities involved or as otherwise required by the board, and each shall be noticed by at least two advertisements, each occurring between one and three weeks prior to the meetings, in newspapers having general circulation within the state and within the municipalities in which the meetings are to be held.  Copies of the notices shall be provided to the public service board, the department of public service, any entity appointed by the public service board pursuant to section 209(d)(2) of this title, the agency of natural resources, the division for historic preservation, the department of health, the scenery preservation council, the agency of transportation, the attorney general, the chair of each regional planning commission, each retail electricity provider within the state, and any public interest group that requests, or has made a standing request for, a copy of the notice.  A verbatim transcript of the meetings shall be prepared by the utility preparing the plan, shall be filed with the public service board and the department of public service, and shall be provided at cost to any person requesting it.  The plan shall contain a discussion of the principal contentions made at the meetings by members of the public, by any state agency and by any utility.

(3) Prior to the issuance of the transmission plan, or any revision of the plan, the utility preparing the plan shall offer to meet with each retail electricity provider within the state, with any entity appointed by the public service board pursuant to section 209(d)(2) of this title, and with the department of public service, for the purpose of exchanging information that may be relevant to the development of the plan.

(4)(A)  A transmission system plan shall be revised:

(i) within nine months of a request to do so made by either the public service board or the department of public service, and

(ii) in any case, at intervals of not more than three years.

(B)  If more than 18 months shall have elapsed between the adoption of any version of the plan and the next revision of the plan, or since the last public hearing on a revision of the plan, the utility preparing the plan, prior to issuing the next revision, shall host public meetings as provided in subdivision (2) of this subsection, and the revision shall contain a discussion of the principal contentions made at the meetings by members of the public, by any state agency, and by any retail electricity provider.

(5)  On the basis of information contained in a transmission system plan, obtained through meetings held pursuant to subdivision (2) of this subsection, or obtained otherwise, the public service board and the department of public service shall use their powers under this title to encourage and facilitate the resolution of reliability deficiencies through non‑transmission alternatives, where those alternatives would better serve the public good.  The public service board, upon such notice and hearings as are otherwise required under this title, and under the authority conveyed by sections 209, 210 and 2801, may enter such orders as it deems necessary to encourage, facilitate or require the resolution of reliability deficiencies in a manner that it determines will best promote the public good.

(6)  The retail electricity providers in affected areas shall incorporate the most recently filed transmission plan in their individual least cost integrated planning processes, and shall cooperate as necessary to develop and implement joint least cost solutions to address the reliability deficiencies identified in the transmission plan.

Sec. 10. INVESTIGATION OF REGIONAL POTENTIAL OF ENERGY CONSERVATION AND EFFICIENCY PROGRAMS

(a)  On or before January 1, 2006, the department of public service shall investigate the following issues and report to the House Committees on Natural Resources and Energy and on Commerce, and to the Senate Committees on Finance, and on Natural Resources and Energy:

(1) The extent to which an aggressive region-wide implementation of energy efficiency and renewable energy programs affect the price of spot market power in the New England ISO through the effect of such programs on bid prices, where the clearing price of the electric market is reduced due to reduced electric demand.  The extent to which these measures could affect the total cost of power for Vermont and New England. The extent to which it is possible to use these programs to mitigate risk associated with fossil fuel price variability.

(2)  The potential for such an aggressive regional approach to be integrated with and complement distribution and transmission least cost planning, as well as regional efforts to reduce greenhouse gas emissions and other air pollution.

(3)  The obstacles and opportunities for development of an effective system of Energy Efficiency Credits analogous to the tradeable Renewable Energy Credits for which there is now a regional market.

(4)  A comparison of the policy options facing Vermont if there is a trading system for carbon emission allowances for electric power in New England.

(5)  The options being considered by Vermont’s retail electricity providers and transmission companies for meeting Vermont’s electric supply requirements in light of the expiration of long term supply contracts.

(b)  The analysis and report required in this section may be included in other studies and efforts by the department, including revisions to the Twenty Year Electric Plan, a new Comprehensive Energy Plan, studies on the extent of cost-effective energy efficiency potential in Vermont, or the Biennial Report to the Legislature.

* * * IV.  Regulatory Policy: performance based ratemaking * * *

* * * Performance based ratemaking * * *

Sec. 11. 30 V.S.A. § 218d(a) is amended to read:

(a) Notwithstanding section 218 and sections 225-227 of this title, upon petition of an electric or natural gas company, the public service board may, after opportunity for hearing, approve alternative forms of regulation for an electric or natural gas company; provided, however, in the case of a municipal plant or department formed under local charter or chapter 79 of this title or an electric cooperative formed under chapter 81 of this title, any alternative forms of regulation approved by the board shall also be approved by a majority of the voters of a municipality or cooperative voting upon the question at a duly warned annual or special meeting held for that purpose. Before doing so, the board shall find that the proposed form of alternative regulation will:

(1) establish a system of regulation in which such companies have clear incentives to provide least-cost energy service to their customers;

(2) provide just and reasonable rates for service to all classes of customers;

(3) deliver safe and reliable service;

(4) offer incentives for innovations and improved performance that advance state energy policy such as increased increasing reliance on Vermont-based renewable energy and decreasing the extent to which the financial success of distribution utilities between rate cases is linked to increased sales to end use customers and may be threatened by decreases in those sales;

(5) promote improved quality of service, reliability, and service choices;

(6) encourage innovation in the provision of service;

(7) establish a reasonably balanced system of risks and rewards that encourages the company to operate as efficiently as possible using sound management practices; and

(8) provide a reasonable opportunity, under sound and economical management, to earn a fair rate of return, provided such opportunity must be consistent with flexible design of alternative regulation and with the inclusion of effective financial incentives in such alternatives.

* * * V.  Efficiency Standards * * *

* * * Commercial Building Energy Standards * * *

Sec. 12.   COMMERCIAL BUILDING ENERGY STANDARDS

(a)  The department of public service is directed to develop a proposal for state-wide commercial building energy standards(CBES), after consulting with the following:

(1)  Efficiency Vermont;

(2)  Burlington Electric Department;

(3)  Vermont Gas Systems;

(4)  the commercial building design community;

(5)  the commercial building development and construction community; and

(6) other interested persons.

(b) No later than January 31, 2006, the commissioner of public service shall recommend to the legislature guidelines for the content of  a statewide commercial building energy standard.  The standard will recommend energy efficiency standards for commercial building systems including:

(1) Lighting;

(2)  Heating, ventilation, and air conditioning (HVAC) equipment;

(3)  Building envelope (wall, roof and floor insulation, windows, doors, cellar);

(4)  Motors;

(5)  Transformers;

(6) Controls;

(7)  Water usage and hot water.

(c)  These guidelines shall be consistent with the requirements of  federal law that all states have a statewide commercial energy code that meets or exceeds the efficiency level of ASHRAE 90.1-2001. 

(d)  The commissioner will work closely with the International Code Council (ICC) and the New Buildings Institute (NBI), as well as other code support agencies, to develop the code in a way that is appropriate for the state.

Sec. 13.  REPORT ON ALTERNATIVE FORMS OF REGULATION

By no later than January 15, 2007, the public service board shall report to the general assembly on the implementation of 30 V.S.A. § 218d(a), relating to alternative forms of regulation.  The report shall be filed with the House Committees on Commerce and on Natural Resources and Energy and the Senate Committees on Finance and on Natural Resources and Energy.  It shall include an explanation of the results of any alternative form of regulation approved by the board, and if no such form has been approved, an explanation of why no such form has been approved.

Sec. 14.  30  V.S.A. §3007 is amended to read:

§ 3007. MEMBERS, QUALIFICATIONS

Each incorporator of a cooperative shall be a member thereof, but no other person may become a member thereof unless such other person uses electric energy or other services, goods or products furnished by the cooperative when they are made available through its electric distribution facilities, or a person may become a member by owning renewable energy certificates or other environmental attributes associated with the generation of electricity from the cooperative.  A member of a cooperative who ceases to use electric energy shall cease to be a member if he or she does not use electric energy supplied by the cooperative within six months after it is made available, or if electric energy is not made available by the cooperative within two years after he or she becomes a member or some lesser period as the bylaws of the cooperative may provide. Two or more owners or occupants of property served by a cooperative may hold a joint membership in a cooperative. Membership in a cooperative shall not be transferable, except as provided by the bylaws. The bylaws may prescribe additional qualifications and limitations in respect to membership.

NOTICE CALENDAR

Favorable

H. 184

An act relating to taking deer damaging crops.

Reported favorably by Senator Coppenrath for the Committee on Natural Resources and Energy.

(Committee vote: 6-0-0)

(For House amendments, see House Journal for March 9, 2005, page 324)

H. 505

An act relating to amending the charter of the city of Burlington.

Reported favorably by Senator Condos for the Committee on Government Operations.

(Committee vote: 6-0-0)

(For House amendments, see House Journal for April 14, 2005, page 643)

Favorable with Proposal of Amendment

H. 163

An act relating to criminal abuse, neglect, and exploitation of vulnerable adults.

Reported favorably with recommendation of proposal of amendment by Senator Sears for the Committee on Judiciary.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The General Assembly finds:

(1)  Vulnerable adults are one of the most abused segments of our population.  The 1998 National Elder Incidence Study reported that 449,925 elders experienced abuse or neglect in noninstitutional settings.  About 84 percent of these cases were never reported.  During the past five years, there has been a 41‑percent increase in the number of reports of abuse of vulnerable adults made to adult protective services in the Vermont department of aging and independent living.  During that same period, there has been a 66‑percent increase in the number of protective services provided to vulnerable adults.

(2)  Nationally, statistics show that more than 90 percent of people with developmental disabilities will experience sexual abuse at some point in their lives.  Only three percent of sexual abuse cases involving people with developmental disabilities are ever reported.

(3)  Crime victimization is a major problem among persons with severe mental illness (SMI).  In their report “Crime Victimization in Adults with Severe Mental Illness:  Comparison with the National Crime Victimization Survey,” researchers at Northwestern University’s Department of Psychiatry and Behavioral Sciences documented that:

(A)  More than 25 percent of persons with SMI had been victims of violent crimes within the past year, more than 11 times the rate for the general population even after controlling for demographic differences.

(B)  For the types of violent crimes analyzed (various degrees of rape/sexual assault, robbery, and assault), the rates of occurrence for persons with SMI ranged from six to 23 times greater than the rates among the general population.

(4)  According to a 2002 General Accounting Office report on nursing home resident abuse, there is increasing concern that nursing home residents are abused by the very people who are supposed to care for them.  In 1999, over 25 percent of nursing homes nationwide were cited by state survey agencies for conduct that harmed residents or put them at risk of death or serious injury.  Reports of sexual and physical abuse often are not made promptly, and existing state and federal safeguards do not adequately protect residents from potentially abusive nursing home employees.

(5)  Prevention services, training, and education are critical components in reducing abuse, neglect, and exploitation of vulnerable adults.  The more frequently and efficiently that education, prevention, and training services and other early interventions are employed, the greater likelihood that fewer vulnerable adults will be subject to abuse.  For example, reports to adult protective services increased by 18 percent during and immediately following a six-month 2004 public education campaign conducted by the Vermont Center for Crime Victim Services to educate vulnerable adults, the elderly, caregivers, and the general public about the issues of elder abuse, neglect, and exploitation in Vermont.  Such a significant and immediate increase underscores the clear need for more public education and training about the crimes committed against this vulnerable segment of our population.

(6)  While this act enhances the ability to prosecute persons under criminal law who abuse vulnerable adults, it is also the intent of the General Assembly to focus attention on the crucial role that prevention and training services can play to intervene at an early stage and ensure that vulnerable adults are not abused at all.

Sec. 2.  13 V.S.A. chapter 28 is added to read:

CHAPTER 28.  ABUSE, NEGLECT, AND

EXPLOITATION OF VULNERABLE ADULTS

§ 1375.  definitions

As used in this chapter:

(1)  “Bodily injury” means physical pain, illness, or any impairment of physical condition.

(2)  “Caregiver” means:

(A)  a person, agency, facility, or other organization with responsibility for providing subsistence, health, or other care to a vulnerable adult, who has assumed the responsibility voluntarily, by contract, or by an order of the court; or

(B)  a person providing care, including health care, custodial care, personal care, mental health services, rehabilitative services, or any other kind of care which is required because of another’s age or disability.

(3)  “Lewd and lascivious conduct” means any lewd or lascivious act upon or with the body, or any part or member thereof, of a vulnerable adult, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of the person or the vulnerable adult.

(4)  “Neglect” means intentional or reckless failure or omission by a caregiver to:

(A)(i)  provide care or arrange for goods, services, or living conditions necessary to maintain the health or safety of a vulnerable adult, including, but not limited to, food, clothing, medicine, shelter, supervision, and medical services, unless the caregiver is acting pursuant to the wishes of the vulnerable adult or his or her representative, or an advanced directive as defined in chapter 111 of Title 18; or

(ii)  make a reasonable effort, in accordance with the authority granted the caregiver, to protect a vulnerable adult from abuse, neglect or exploitation by others.

(B)  Neglect may be repeated conduct or a single incident which has resulted in or could be expected to result in physical or psychological harm, as a result of subdivisions (A)(i) or (ii) of this subdivision (4).

(5)  “Serious bodily injury” means bodily injury which creates a substantial risk of death or which causes substantial loss or impairment of the function of any bodily member or organ or substantial impairment of health or substantial disfigurement.

(6)  “Sexual act” means conduct between persons consisting of contact between the penis and the vulva, the penis and the anus, the mouth and the penis, the mouth and the vulva, or any intrusion, however slight, by any part of a person’s body or any object into the genital or anal opening of another.

(7)  “Sexual activity” means a sexual act, other than appropriate health care or personal hygiene, or lewd and lascivious conduct.

(8) “Vulnerable adult” means any person 18 years of age or older who:

(A)  is a resident of a facility required to be licensed under chapter 71 of Title 33;

(B)  is a resident of a psychiatric hospital or a psychiatric unit of a hospital;

(C)  has been receiving personal care and services from an agency certified by the Vermont department of aging and independent living or from a person or organization that offers, provides, or arranges for personal care; or

(D)  regardless of residence or whether any type of service is received, is impaired due to brain damage, infirmities of aging, or a physical, mental, or developmental disability that results in some impairment of the individual’s ability to:

(i)  provide for his or her own care without assistance, including the provision of food, shelter, clothing, health care, supervision, or management of finances; or

(ii)  protect himself or herself from abuse, neglect, or exploitation.

§ 1376.  Abuse

(a)  A caregiver who engages in conduct with an intent or reckless disregard that the conduct is likely to cause unnecessary harm, unnecessary pain, or unnecessary suffering to a vulnerable adult shall be imprisoned not more than one year or fined not more than $1,000.00, or both.

(b)  A caregiver who commits an assault, as defined in section 1023 of this title, with actual or constructive knowledge that the victim is a vulnerable adult, shall be imprisoned for not more than two years or fined not more than $2,000.00, or both.

(c)  A caregiver who commits an aggravated assault as defined in subdivision 1024(a)(1) or (2) of this title with actual or constructive knowledge that the victim is a vulnerable adult shall be imprisoned not more than 20 years or fined not more than $10,000.00, or both. 

§ 1377.  ABUSE BY UNLAWFUL RESTRAINT AND UNLAWFUL CONFINEMENT

(a)  Except as provided in subsection (b) of this section, no person shall knowingly or recklessly:

(1)  cause or threaten to cause unnecessary or unlawful confinement or unnecessary or unlawful restraint of a vulnerable adult; or

(2)  administer or threaten to administer a drug, a substance, or electroconvulsive therapy to a vulnerable adult.

(b)  This section shall not apply if the confinement, restraint, administration, or threat is:

(1)  part of a legitimate and lawful medical or therapeutic treatment; or

(2)  lawful and reasonably necessary to protect the safety of the vulnerable adult or others, provided that less intrusive alternatives have been attempted if doing so would be reasonable under the circumstances.

(c)  A person who violates this section shall:

(1)  be imprisoned not more than two years or fined not more than $10,000.00, or both.

(2)  if the violation causes bodily injury, be imprisoned not more than three years or fined not more than $10,000.00, or both.

(3)  if the violation causes serious bodily injury, be imprisoned not more than 15 years or fined not more than $10,000.00, or both.§ 1378.  NEGLECT

(a)  A caregiver who intentionally or recklessly neglects a vulnerable adult shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.

(b)  A caregiver who violates subsection (a) of this section, and as a result of such neglect, serious bodily injury occurs to the vulnerable adult, shall be imprisoned not more than 15 years or fined not more than $10,000.00, or both.

§ 1379.  SEXUAL ABUSE

(a)  A person who volunteers for or is paid by a caregiving facility or program shall not engage in any sexual activity with a vulnerable adult.  It shall be an affirmative defense to a prosecution under this subsection that the sexual activity was consensual between the vulnerable adult and a caregiver who was hired, supervised, and directed by the vulnerable adult.  A person who violates this subsection shall be imprisoned for not more than two years or fined not more than $10,000.00, or both.

(b)  No person, whether or not the person has actual knowledge of the victim’s vulnerable status, shall engage in sexual activity with a vulnerable adult if:

(1)  the vulnerable adult does not consent to the sexual activity; or

(2)  the person knows or should know that the vulnerable adult is incapable of resisting, declining, or consenting to the sexual activity due to his or her specific vulnerability or due to fear of retribution or hardship.

(c)  A person who violates subsection (b) of this section shall be:

(1)  imprisoned for not more than five years or fined not more than $10,000.00, or both, if the sexual activity involves lewd and lascivious conduct;

(2)  imprisoned for not more than 20 years or fined not more than $10,000.00, or both, if the sexual activity involves a sexual act.

(d)  A caregiver who violates subsection (b) of this section shall be:

(1)  imprisoned for not more than seven years or fined not more than $10,000.00, or both, if the sexual activity involves lewd and lascivious conduct.

(2)  imprisoned for not more than 25 years or fined not more than $10,000.00, or both, if the sexual activity involves a sexual act.

§ 1380.  Financial exploitation

(a)  No person shall willfully use, withhold, transfer, or dispose of funds or property of a vulnerable adult, without or in excess of legal authority, for wrongful profit or advantage.  No person shall willfully acquire possession or control of or an interest in funds or property of a vulnerable adult through the use of undue influence, harassment, duress, or fraud.

(b)  A person who violates subsection (a) of this section, and exploits money, funds, or property of no more than $500.00 in value, shall be imprisoned not more than 18 months or fined not more than $10,000.00, or both.

(c)  A person who violates subsection (a) of this section, and exploits money, funds, or property in excess of $500.00 in value, shall be imprisoned not more than 10 years or fined not more than $10,000.00, or both.

§ 1381.  Exploitation of services

Any person who willfully forces or compels a vulnerable adult against his or her will to perform services for the profit or advantage of another shall be imprisoned not more than two years or fined not more than $10,000.00, or both.

§ 1382.  DEFERRED SENTENCE

Notwithstanding the limitation of subsection 7041(a) of this title, a court may, on the motion of a party or on its own motion, with or without the consent of the state’s attorney, defer sentencing for a misdemeanor violation of this chapter and place the defendant on probation upon such terms and conditions as it may require.

§ 1383.  ADULT ABUSE REGISTRY

A person who is convicted of a crime under this chapter shall be placed on the adult abuse registry.  A deferred sentence is considered a conviction for purposes of the adult abuse registry.

Sec. 3.  13 V.S.A. § 5301(7) is amended to read:

§ 5301.  Definitions

As used in this chapter:

* * *

(7)  For the purpose of this chapter, “listed crime” means any of the following offenses:

* * *

(Z)  burglary into an occupied dwelling as defined in section subsection 1201(c) of this title; and

(AA)  the attempt to commit any of the offenses listed in this section; and

(BB)  abuse (section 1376 of this title), abuse by restraint (section 1377 of this title), neglect (section 1378 of this title), sexual abuse (section 1379 of this title), financial exploitation (section 1380 of this title), and exploitation of services (section 1381 of this title).

Sec. 4.  33 V.S.A. § 6913 is amended to read:

§ 6913.  PENALTIES; DEFERRED SENTENCING; CRIMINAL SEXUAL ACTIVITY BY CAREGIVER; ABUSE; NEGLECT; EXPLOITATION; MANDATORY REPORTER’S FAILURE TO REPORT

(a)  Any person who engages in abuse, as defined in subdivision 6902(1)(B) or (C) of this title shall be fined not more than $10,000.00 or be imprisoned not more than 18 months, or both.

(b)  Any person who willfully engages in exploitation as defined in subdivision 6902(6)(A), (B) or (C) of this title, shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(c)  Any caregiver who purposely, knowingly or recklessly neglects a vulnerable adult as defined in subdivision 6902(7) of this title shall be fined not more than $10,000.00 or be imprisoned for not more than 18 months, or both.

(d)  Any caregiver who engages in abuse of a vulnerable adult in violation of subdivision 6902(1)(D) of this title shall be fined not more than $10,000.00 or be imprisoned not more than two years, or both.

(e)  Any mandatory reporter as defined in subdivision 6903(a)(1), (2), (3), (4) and (5) of this title that willfully violates subsection 6903(a) of this title shall be fined not more than $500.00 or be imprisoned for not more than one year, or both.

(f)  Notwithstanding the limitation of 13 V.S.A. § 7041(a), a court may, on the motion of a party or on its own motion, with or without the consent of the state’s attorney, defer sentencing and place the defendant on probation upon such terms and conditions as it may require.

(g)  Whenever the commissioner finds, after notice and hearing, that a person has committed sexual abuse as defined in subdivision 6902(1)(D) of this title, sexual exploitation as defined in subdivision 6902(6)(D), exploitation as defined in subdivision 6902(6)(A) or (B) in an amount in excess of $500.00, abuse which causes grievous injury to or the death of a vulnerable adult, or neglect which causes grievous injury to or the death of a vulnerable adult, the commissioner may impose an administrative penalty of not more than $10,000.00 for each violation, except as provided in subsection (h) of this section.  The commissioner shall notify the office of professional regulation, or any other professional licensing board applicable to the violator, of any decision made pursuant to this subsection.

(h)(b)  Whenever the commissioner finds, after notice and hearing, that a mandatory reporter, as defined in subdivisions 6903(a)(1), (2), (3), (4), and (5) of this title, has willfully violated the provisions of subsection 6903(a), the commissioner may impose an administrative penalty not to exceed $500.00 per violation.  For purposes of this subsection, every 24 hours that a report is not made beyond the period for reporting required by subsection 6903(a) shall constitute a new and separate violation, and a mandatory reporter shall be liable for an administrative penalty of not more than $500.00 for each 24-hour period, not to exceed a maximum penalty of $5,000.00 per reportable incident.

(i)(c)  A person who is aggrieved by a decision under subsection (g)(a) or (h)(b) of this section may appeal that decision to the superior court where either party may request trial by jury.

Sec. 5.  13 V.S.A. § 5401(10) is amended to read:

(10)  “Sex offender” means:

(A)  A person who is convicted in any jurisdiction of the United States, including a state, territory, commonwealth, the District of Columbia, or military, federal, or tribal court of any of the following offenses:

* * *

(iv)  sexual activity by a caregiver as defined in 33 V.S.A. § 6913(d) abuse of a vulnerable adult as defined in section 1379 of this title;

* * *

Sec. 6.  33 V.S.A. § 6906(a) is amended to read:

§ 6906.  INVESTIGATION

(a)(1)  The commissioner shall cause an investigation to commence within 48 hours after receipt of a report made pursuant to section 6904 of this title.

(2)  The commissioner shall keep the reporter and the alleged victim informed during all stages of the investigation, and shall:

(A)  notify the reporter, the victim, and the victim’s legal representative, if any, in writing if adult protective services or the division of licensing and protection decides not to investigate the report.  The notification shall be provided within five business days after the decision is made and shall inform the reporter that he or she may ask the commissioner to review the decision.

(B)  notify the reporter, the victim, and the victim’s legal representative, if any, in writing if adult protective services or the division of licensing and protection refers the report to another agency.  The notification shall be provided within five business days after the referral is made.

(C)  notify the reporter, the victim, and the victim’s legal representative, if any, in writing of the outcome of the investigation.  The notification shall be provided within five business days after the decision is made and shall inform the reporter that he or she may ask the commissioner to review the decision.

Sec. 7.  33 V.S.A. § 6912 is amended to read:

§ 6912.  PUBLIC EDUCATION AND DISCLOSURE OF RIGHTS AND DUTIES; POSTING OF NOTICE

(a)  The department, within available appropriations, shall conduct a publicity and education program to encourage the fullest degree of reporting of suspected abuse, neglect, or exploitation of vulnerable adults.

(b)  All agencies, facilities or institutions providing care and services to elderly or, disabled, or vulnerable adults shall inform their employees of their right and duty to report suspected incidents of abuse, neglect, or exploitation and the protections afforded them by this chapter, and shall establish appropriate policies and procedures to facilitate such reporting.

(c)(1)  All agencies, facilities, or institutions providing care and services to vulnerable adults shall post in a prominent and accessible location a poster describing the protections afforded to vulnerable adults by this chapter and by chapter 28 of Title 13.  The poster shall include, at a minimum, the following:

(A)  A statement that abuse, neglect, and exploitation of vulnerable adults is unlawful.

(B)  A statement that it is unlawful to retaliate against a person for filing a complaint of abuse, neglect, or exploitation or for cooperating in an investigation of abuse, neglect, or exploitation.

(C)  A description and examples of abuse, neglect, and exploitation.

(D)  A statement of the range of consequences for persons who commit abuse, neglect, or exploitation.

(E)  If the agency, facility, or institution has more than five employees, a description of the process for filing internal complaints about abuse, neglect, and exploitation, and the names, addresses, and telephone numbers of the person or persons to whom complaints should be made.

(F)  The complaint process of the appropriate state and federal agencies and directions as to how to contact such agencies. 

(2)  Except as provided in subdivision (3) of this subsection, the poster required by this subsection shall be posted in a location where it would ordinarily be viewed by vulnerable adults.

(3)  An agency, facility, or institution which provides home-based services shall:

(A)  display the poster required by this subsection in its principal place of business; and

(B)  provide a written notice which includes all information contained on the poster to each vulnerable adult for whom services are provided.    

Sec. 8.  13 V.S.A. § 1024 is amended to read:

§ 1024.  AGGRAVATED ASSAULT

(a)  A person is guilty of aggravated assault if he the person:

(1)  attempts to cause serious bodily injury to another, or causes such injury purposely, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life; or

(2)  attempts to cause or purposely or knowingly causes bodily injury to another with a deadly weapon; or

(3)  for a purpose other than lawful medical or therapeutic treatment, he the person intentionally causes stupor, unconsciousness, or other physical or mental impairment or injury to another person by administering to him the other person, without his the other person’s consent, a drug, substance, or preparation capable of producing the intended harm; or

(4)  with intent to prevent a law enforcement officer from performing a lawful duty, he the person causes physical injury to any person; or

(5)  is armed with a deadly weapon and threatens to use the deadly weapon on another person.

(b)  A person found guilty of violating a provision of subsection subdivision (a)(1) or (2) of this section shall be imprisoned for not more than 15 years or fined not more than $10,000.00, or both.

(c)  A person found guilty of violating a provision of subsection subdivision (a)(3) or, (4), or (5) of this section shall be imprisoned for not more than five years or fined not more than $5,000.00, or both.

(d)  Subdivision (a)(5) of this section shall not apply if the person threatened to use the deadly weapon:

(1)  in the just and necessary defense of his or her own life or the life of his or her husband, wife, civil union partner, parent, child, brother, sister, guardian, or ward;

(2)  in the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery; or

(3)  in the case of a civil or military officer lawfully called out to suppress a riot or rebellion, prevent or suppress an invasion, or assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty.

Sec. 9.  13 V.S.A. § 5405 is amended to read:

§ 5405.  COURT DETERMINATION OF SEXUALLY VIOLENT PREDATORS

(a)  The general assembly finds that some sexual offenders should be subject to increased sex offender registry and community notification procedures.  It is the intent of the general assembly that state’s attorneys utilize the provisions in this section to petition the court to designate those offenders who pose a greater risk to the public as sexually violent predators to ensure that those offenders will be required to register as sex offenders for life, and that they will be among those offenders who are included on the state’s internet sex offender registry. 

(b)  Within ten 15 days after the conviction of a sex offender, the state may file a written request petition with the court requesting that the person be designated as a sexually violent predator.

(b)(c)  The determination of whether a person is a sexually violent predator shall be made by the court at the time of sentencing after reviewing the recommendations of at least two experts in the behavior and treatment of sexual offenders

(d)  The court shall order a presentence investigation which shall include a psychosexual evaluation of the offender.  

(c)(e)  In making a determination of whether the person is a sexually violent predator, the court shall examine the following:

(1)  the person’s criminal history;

(2)  any testimony presented at trial, including expert testimony as to the person’s mental state;

(3)  the person’s history of treatment for a personality disorder or mental abnormality connected with his or her criminal sexual behavior;

(4)  any mitigating evidence, including treatment history or, evidence of modified behavior, or expert testimony, which the convicted sex offender wishes to provide to the court prior to the determination; and

(5)  any other relevant evidence.

(d)(f)  The standard of proof when the court makes such a determination shall be clear and convincing evidence that the convicted sex offender suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

(g)  The court shall determine whether the offender was eligible to be charged as a habitual offender as provided in section 11 of this title or a violent career criminal as provided in section 11a of this title and shall make findings as to such.

(e)(h)  After making a determination its determinations, the court shall issue a written decision explaining the reasons for its determination determinations and provide a copy of the decision to the department within 10 days.

(i)  A person who is determined to be a sexually violent predator shall be subject to sex offender lifetime registration and community notification and inclusion on the internet sex offender registry as provided in this subchapter.

Sec. 10.  13 V.S.A. § 2602 is amended to read:

§ 2602.  LEWD OR LASCIVIOUS CONDUCT WITH CHILD

(a)  A person who No person shall wilfully and lewdly commit any lewd or lascivious act upon or with the body, or any part or member thereof, of a child under the age of sixteen 16 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of such person or of such child, shall be imprisoned for the first offense, not less than one year nor more than five years, or fined not more than $3,000.00, or both; for the second offense, not less than two years and not more than ten years, or fined not more than $5,000.00, or both; and for the third or subsequent offense, not less than three years and not more than 20 years, or fined not more than $10,000.00, or both.

(b)  A person who violates subsection (a) of this section shall be:

(1)  For a first offense, imprisoned not less than one year and not more than 15 years or fined not more than $5,000.00, or both.

(2)  For a second offense, imprisoned not less than two years and not more than 30 years or fined not more than $10,000.00, or both.

(3)  For a third offense, imprisoned not less than three years and up to and including life or fined not more than $25,000.00, or both.

Sec. 11.  13 V.S.A. § 2825(e) is amended to read:

(e)  A person who violates section 2828 of this title (use of electronic communication to lure a child) shall:

(1)  For a first offense, be imprisoned not more than five 15 years or fined not more than $10,000.00, or both; or

(2)  For a second or subsequent offense, be imprisoned not more than 30 years and fined not more than $20,000.00, or both.

Sec. 12.  13 V.S.A. § 3253 is amended to read:

§ 3253.  AGGRAVATED SEXUAL ASSAULT

* * *

(b)  A person who commits the crime of aggravated sexual assault shall be punishable by a maximum sentence of life imprisonment imprisoned up to and including life or a fine of fined not more than $50,000.00, or both.  No person who receives a minimum sentence under this section shall be eligible for early release or furlough until the expiration of the minimum sentence imposed.

Sec. 13.  APPROPRIATION – FUNDING FOR EVALUATIONS

The amount of $50,000.00 is appropriated from the general fund in fiscal year 2006 to the department of corrections for the purpose of funding psychosexual evaluations as a part of presentence investigations conducted by the department in cases involving a petition to have a person designated as a sexually violent predator as provided in 13 V.S.A. § 5405 or in sentencing for the crimes of lewd and lascivious conduct with a child as defined in 13 V.S.A. § 2602, aggravated sexual assault as defined in 13 V.S.A. § 3253, and second offense use of electronic communication to lure a child as defined in 13 V.S.A. § 2828.  This appropriation shall be used only for the purposes defined in this section, and any unexpended balance of this appropriation shall carry forward and not be reverted to the general fund.  The department of corrections shall include in its annual budget proposal for fiscal year 2007 and thereafter an allocation to fund these evaluations.  The annual allocation shall be estimated based on the need for such evaluations experienced in the current and previous two fiscal years.

Sec. 14.  REPORT

(a)  On or before January 15, 2006 and on or before January 15 of each year thereafter, the secretary of the agency of human services shall submit a report to the following committees:  the house and senate committees on judiciary, the house committee on human services, and the senate committee on health and welfare.  The report shall include:

(1)(A)  The number of reports of abuse, exploitation, and neglect:

(i)  received by adult protective services (APS) within the department of aging and independent living during the preceding year, and the total number of persons who filed reports.

(ii)  investigated by APS during the preceding year.

(iii)  substantiated by APS during the preceding year.

(iv)  referred to other agencies for investigation by APS during the preceding year, including identification of each agency and the number of referrals it received.

(v)  referred for protective services by APS during the preceding year, including a summary of the services provided.

(B)  For each type of report required from APS by subdivision (1)(A) of this section, a statistical breakdown of the number of reports according to the type of abuse and to the victim’s:

(i)  relationship to the reporter;

(ii)  relationship to the alleged perpetrator;

(iii)  age;

(iv)  disability or impairment; and

(v)  place of residency.

(2)  A complete description of the types of services offered by APS in response to reports of abuse, exploitation, and neglect, including identification of the funding sources for each service, past trends, and future projections for funding, and whether the current and anticipated funding is adequate to meet the service needs.

(3)  A complete description of the notification which APS provides to persons who make reports of abuse, exploitation, and neglect, and the notifications provided to the persons when APS determines to investigate or not to investigate a report, to conclude an investigation, to substantiate or not to substantiate a report, or to refer the report to another agency.

(b)  The report submitted on January 15, 2006 shall include:

(1)  A description of any costs incurred by the department of aging and independent living as a result of meeting the requirements of this act.

(2)  An update on coordination and communication between the department of aging and independent living and the department for children and families with respect to the adult abuse registry established under section 6911 of Title 33 and the child abuse registry established under section 4913 of Title 33.  The update shall include how information on the registries is shared between state personnel and private employers, and whether employers are required to make separate requests from each registry or whether one request automatically produces information from both registries.

(c)  On or before January 1, 2006, the attorney general shall report to the  house and senate committees on judiciary on whether any issues or difficulties have resulted from removing the requirement that the adult be receiving services “for more than one month” from the definition of “vulnerable adult” in subdivision 1375(8)(C) of Title 13.

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for April 6, 2005, page 516.)

H. 199

An act relating to regulation of professions and occupations.

Reported favorably with recommendation of proposal of amendment by Senator Kitchel for the Committee on Government Operations.

The Committee recommends that the Senate propose to the House to amend the bill as follows:

First:  By striking out Sec. 7 in its entirety.

Second:  By adding a new section to be numbered Sec. 44a to read as follows:

Sec. 44a.  26 V.S.A. § 1272 is amended to read:

§ 1272.  RULES

The board, with the assistance of the office of professional regulation, shall adopt rules to carry out the provisions of this subchapter to insure the proper handling of all funds paid pursuant to a prepaid funeral agreement and to protect consumers in the event of default.  The rules shall include provisions relating to the following:

* * *

(2)  The appointment of an escrow agent who may be a bank or other category of individual such as an attorney, a local elected official, next of kin, or the executor of a buyer’s estate.  All prepaid arrangement funds shall be paid directly to the escrow agent and not to the funeral director or establishment.

* * *

(6)  Records to be kept, manner of disclosure, and clauses to be included in contracts, including pre-need trust forms, and agreements.  Records shall include a copy of the prepaid arrangement check which shall be kept in the prepaid account file maintained by the funeral director.

* * *

(9)  Establishment of a funeral services trust account.  For purposes of funding the funeral services trust account, the board or the office of professional regulation shall assess each funeral or crematory establishment a per funeral, burial, or disposition fee of $6.00.  The account shall be administered by the secretary of state and shall be used for the sole purpose of protecting prepaid funeral contract holders in the event a funeral establishment defaults on its obligations under the contract.  The account shall consist of all fees collected under this subdivision and any assessments authorized by the general assembly.  The principal and interest remaining in the account at the close of any fiscal year shall not revert but shall remain in the account for use in succeeding fiscal years.  Notwithstanding the foregoing, if the fund balance at the beginning of a fiscal year is at least $200,000.00 $350,000.00, no fees shall be imposed during that fiscal year.  Payments on consumer claims from the fund shall be made on warrants by the commissioner of finance and management, at the direction of the board of funeral services.  When an investigation reveals financial discrepancies within a licensed establishment, the director may order an audit to determine the existence of possible claims on the funeral services trust account.  In cases where both a funeral and crematory establishment are involved in a disposition, the party receiving the burial permit shall be responsible for the disposition fee.

Third:  By adding a new section to be numbered Sec. 89a to read as follows:

Sec. 89a.  26 V.S.A. § 3162(7) is amended to read:

(7)  Adopt rules establishing a security guard or private investigator training program, consisting of not fewer than 40 hours of training, as a prerequisite to registration.  Full-time employees shall complete the training program prior to being issued a permanent registration.  Part-time employees shall complete not fewer than eight hours of training prior to being issued a part-time employee temporary registration which shall be valid for 180 days.  The remaining training hours for part-time employees shall be completed within the temporary registration period of 180 days or before the employee has worked 500 hours, whichever occurs first.  The part-time employee temporary registration shall expire after 180 days or 500 hours.  For the purposes of this section, “part-time employee” means an employee who works no more than 80 hours per month.  The board may prioritize training subjects to require that certain subject areas are covered in the initial eight hours of training required for part-time employees.

Fourth:  By striking out Sec. 97 in it entirety and inserting in lieu thereof a new Sec. 97 to read as follows:

Sec. 97.  26 V.S.A. § 4037 is amended to read:

§ 4037.  ELIGIBILITY

To be eligible for licensure as a marriage and family therapist, an applicant:

(1)  Shall have successfully:

(A)(i)  completed either a graduate degree program in marriage and family therapy at an institution that is accredited by both a regional educational accrediting body and the commission, or a post-graduate training institute that is accredited by the commission; or

(ii)  obtained a graduate degree focusing on marriage and family therapy, as defined by the board by rule, at an institution that is accredited by a regional or national educational accrediting body recognized by the United States Department of Education and approved by the board; and

(B)  met specific graduate credit and course requirements for licensure as set forth by the board by rule.

(2)  [Deleted.]

(3)  Shall have successfully completed a two calendar year two‑calendar‑year work experience in marriage and family therapy under the supervision of either a licensed marriage and family therapist or licensed clinical social worker in this state or a marriage and family therapist or licensed clinical social worker in another state who would meet the license requirements.  Persons engaged in the work experience shall be entered on the roster of psychotherapists who are nonlicensed and noncertified and shall comply with the laws of that profession.  The board shall adopt rules establishing standards and procedures for satisfying the requirements of this subdivision.

(4)  Shall have passed an examination as provided in section 4038 of this title.

(Committee Vote: 6-0-0)

(For House amendments, see House Journal for February 24, 2005, page 277.)

H. 523

An act relating to the state’s transportation program.

Reported favorably with recommendation of proposal of amendment by Senator Mazza for the Committee on Transportation.

The Committee recommends that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  TRANSPORTATION PROGRAM

(a)  The state’s proposed fiscal year 2006 transportation program appended to the agency of transportation’s proposed fiscal year 2006 budget, as amended by this act, is adopted to the extent federal, state, and local funds are available. 

(b)  As used in this act, unless otherwise indicated, the term “agency” means the agency of transportation, and the term “secretary” means the secretary of transportation.  As used in this act, the table heading “As Proposed” means the transportation program referenced in subsection (a) of this section; the table heading “As Amended” means the amendments as made by this act; the table heading “Change” means the difference obtained by subtracting the “As Proposed” figure from the “As Amended” figure; and the term “change” or “changes” in the text refers to the project- and program‑specific amendments, the aggregate sum of which equals the net “Change” in the applicable table heading.

* * * Program Development - Interstate Bridge * * *

Sec. 2.  PROGRAM DEVELOPMENT - INTERSTATE BRIDGE

The following modifications are made to the program development - interstate bridge program:

(1)  Authorized spending for the Putney IM 091-1(31) interstate project (Bridge No. 17, I-91 under US 5) is amended to read:

              FY06                  As Proposed     As Amended           Change  

              Construction           2,257,756                  0           -2,257,756

              Total                       2,257,756                  0           -2,257,756

            Source of Funds

              State                          225,776                  0              -225,776

              Federal                   2,031,980                  0           -2,031,980

              Total                       2,257,756                  0           -2,257,756

(2)  The following projects and their associated funding as approved or amended by this act are moved to the bridge maintenance program:

System        Project       Project Number         Description

Interstate     Bolton        IM 090-2(29)           Rehab BR#51, I-89 Bolton

Interstate     Putney        IM 091-1(31)           Rehab bridge #17, I-91

(3)  Total spending in the interstate bridge program, including the changes made in subdivisions (1) and (2) of this section, is authorized as follows.

              FY06               As Proposed                   As Amended          Change

              Total                    5,581,764                          410,000    -5,171,764

            Source of Funds

              State                       558,177                            41,000       -517,177

              Federal                5,023,587                          369,000    -4,654,587

              Local                   1,667,342                       1,508,678       -158,664

              Total                    5,581,764                          410,000    -5,171,764

* * * Program Development - State Bridge * * *

Sec. 3.  PROGRAM DEVELOPMENT - STATE BRIDGE

The following modifications are made to the program development - state bridge program:

(1)  The following project and its associated funding as approved or amended by this act is moved to the bridge maintenance program:

System        Project          Project Number      Description

State            Cambridge    BHF 030-2(19)S   Rehab BR20, Lamoille River

(2)  Total spending in the state bridge program, including the changes made in subdivision (1) of this section, is authorized as follows.

              FY06               As Proposed                   As Amended          Change

              Total                  26,868,884                     26,347,832       -521,052

            Source of Funds

              State                    4,769,674                       4,665,464       -104,210

              Federal              22,099,210                     21,682,368       -416,842

              Total                  26,868,884                     26,347,832       -521,052

* * * Program Development − Roadway Program * * *

Sec. 4.  PROGRAM DEVELOPMENT − ROADWAY PROGRAM

The following modifications are made to the program development − roadway program:

(1)  Spending authority for the Hardwick ST 030-3(4) project (bank stabilization along VT 15 in landslide area easterly of Hardwick village) is added to read:

              FY06                  As Proposed      As Amended          Change  

              Construction                                  140,000                140,000

              Total                                             140,000                140,000

            Source of Funds

              State                                             140,000                140,000

              Total                                             140,000                140,000

(2)  Fiscal year 2005 funding for construction of the Hubbardton ST 0161(23) project (reconstruction of VT 30 to prevent periodic flooding of roadway) in the amount of $300,000 in state funds shall carry forward and be utilized in the fiscal year 2006 transportation program.

(3)  Spending authority for the Hubbardton ST 0161(23) project is added to read:

              FY06                  As Proposed      As Amended          Change  

              Construction                                  700,000                700,000

              Total                                             700,000                700,000

            Source of Funds

              State                                             140,000                140,000

              Federal                                          560,000                560,000

              Total                                             700,000                700,000

(4)  Funding for the North Bennington STP 9646(1) S project (reconstruction of Water Street/TH 2/VT 67A) is added to read:

              FY06                  As Proposed      As Amended            Change

              Construction                                  637,756                637,756

              Total                                             637,756                637,756

            Source of Funds

              State                                             125,776                125,776

              Federal                                          511,980                511,980

              Total                                             637,756                637,756

(5)  Due to anticipated scheduling delays, spending authority for the Cabot-Danville FEGC F 028-3(26)C/1 is amended to read:

              FY06                  As Proposed      As Amended            Change

              PE                               50,000             50,000                      0

              Construction              500,000                      0          -500,000

              Total                          550,000             50,000          -500,000

            Source of Funds

              State                            27,500               2,500            -25,000

              Federal                      522,500             47,500          -475,000

              Total                          550,000             50,000          -500,000

(6)(A)  Spending authority for the Bennington Bypass South NHF 019‑1(4) project is amended to read:

              FY06                  As Proposed      As Amended            Change

              PE                          1,131,485                      0       -1,131,485

              ROW                                   0           200,000           200,000

              Total                       1,131,485           200,000          -931,485

            Source of Funds

              State                          226,297           200,000            -26,297

              Federal                      905,188                      0          -905,188

              Total                       1,131,485           200,000          -931,485

(B)  The funds authorized for the project shall be used to purchase real property along the projected right‑of‑way of the project so as to preserve the corridor for construction of the project in the future when resources balanced with commitments as provided in 19 V.S.A. § 10g(d) become available.

(7)  Spending authority for the Champlain Parkway MEGC M 5000(1) C/2 and C/6 project is amended to read:

              FY06                  As Proposed      As Amended            Change

              PE                          1,000,000                      0       -1,000,000

              PE or construction                           1,000,000        1,000,000

              Total                       1,000,000        1,000,000                      0

            Source of Funds

              State                            30,000             30,000                      0

              Federal                      950,000           950,000                      0

              Local                         450,000           450,000                      0

              Total                       1,000,000        1,000,000                      0

(8)  The following projects have received federal earmark funds and are added to the roadway program – statewide development and evaluation for fiscal year 2005 and fiscal year 2006:

(A)  Windsor – Industrial Access Road:  $1,000,000 from the federal Transportation and Community and System Preservation Program (TCSP);

(B)  Swanton – Missisquoi Wildlife Refuge:  $500,000 from the federal Public Lands Highway Program (PLH);

(C)  Norwich – Silvio Conte National Fish and Wildlife Refuge Educational Outreach Center:  $1,000,000 from the federal Public Lands Highway Program (PLH);

(D)  Johnson STP 030-2( ):  $1,984,000 from the Section 117 Federal Highway Administration Surface Transportation Funds for improvements on VT 15;

(E)  Essex Junction STP 5300( ):  $496,000 from the Section 117 Federal Highway Administration Surface Transportation Funds.

* * * Program Development - Park and Ride Program * * *

Sec. 5.  PARK AND RIDE PROGRAM

The following modifications are made to the program development - park and ride facilities program.  Fiscal year 2005 funding for construction of the Ferrisburgh CMG Park (15) facility in the amount of $310,000 in state funds shall carry forward and be utilized in the fiscal year 2006 transportation program.  Construction of the facility shall proceed over a two‑fiscal‑year period.

* * * Program Development – Safety and Traffic Operations * * *

Sec. 6.  SAFETY AND TRAFFIC OPERATIONS

All highway projects in which safety is a dominant feature, including projects in which the construction of a roundabout is an option, shall be listed and considered as part of the safety and traffic operations program.

* * * Program Development Vehicle Fleet * * *

Sec. 7.  PROGRAM DEVELOPMENT VEHICLE FLEET

The program development program is modified to eliminate the proposed addition of two vehicles, one for use by materials and research program and one for use by the bridge inspection program.  Spending authority is reduced by the amount of $60,000 in transportation funds.

* * * Policy and Planning * * *

Sec. 8.  POLICY AND PLANNING

(a)  Total authorized spending in the policy and planning program is modified as follows:

              FY06                  As Proposed      As Amended          Change  

              Personal Services    2,641,670        2,641,670                      0

              Operating                   492,908           492,908                      0

              Grants                     4,090,769        4,140,769             50,000

              Total                       7,225,347        7,275,347             50,000

            Source of Funds

              State                       1,796,692        1,801,692               5,000

              Federal                   5,428,655        5,473,655             45,000

              Total                       7,225,347        7,275,347             50,000

(b)  These changes are made:

(1)  to fund the youth corps program with $200,000 of federal enhancement funds in lieu of $200,000 of other federal funds; and  

(2)  to add $50,000 to fund the grant to the Northwest Regional Planning Commission provided for in Sec. 9 of this act.

Sec. 9.  ST. ALBANS FEDERAL STREET EXTENSION

Notwithstanding 19 V.S.A. § 10j(e), the sum of $50,000 is authorized for the Northwest Regional Planning Commission to augment the Federal Street Extension scoping study done by the commission in 1995 to include additional intermodal connections for freight and passenger transportation and for engineering in preparation for construction of the extension from the St. Albans state highway to Federal Street.

* * * Enhancement Funds * * *

Sec. 10.  ENHANCEMENT FUNDS

Notwithstanding 19 V.S.A. § 38, the first $200,000 of federal funds allocated to the enhancement grant program for fiscal year 2006 under 19 V.S.A. § 38(e)(1) shall be allocated to policy and planning for the youth corps program as provided in Sec. 8(b)(1) of this act.

* * * Rest Areas * * *

Sec. 11.  REST AREAS

(a)  The Hartford I-91 rest area sewer line project is authorized to proceed provided the state’s share of the project cost is limited to 10 percent of the costs determined by federal authorities to be eligible for federal cost share participation.  Subject to the 10‑percent limitation, if the total cost of the project exceeds the amount determined to be eligible for federal cost share participation, the project may proceed if the department of buildings and general services determines that funding to cover the project costs not eligible for federal participation is or will be available from sources other than the transportation fund.

(b)  The agency and the department of buildings and general services are directed to confer with the town of Hartford on all phases of the upgrades to the rest areas on the north- and southbound portions of I-91 in Hartford.

* * * Rail Program * * *

Sec. 12.  RAIL PROGRAM

(a)  The following modifications are made to the program development – rail projects program:

              FY06                  As Proposed      As Amended          Change  

              PE                             686,111                      0          -686,111

              Construction           1,125,000                      0       -1,125,000

              Other                         635,000                      0          -635,000

              Total                       2,446,111                      0       -2,446,111

              Source of Funds

              State                       1,186,111                      0       -1,186,111

              Federal                   1,260,000                      0       -1,260,000

              Total                       2,446,111                      0       -2,446,111

(b)  Spending authority for the purchase of interstate passenger rail service is amended as follows.  This change is made to adjust authorized spending to anticipated contract obligations:

              FY06                  As Proposed      As Amended          Change  

              Total                       3,000,000        2,700,000          -300,000

            Source of Funds

              State                       3,000,000        2,700,000          -300,000

              Total                       3,000,000        2,700,000          -300,000

(c)  The rail operations program is changed to the rail program and total authorized spending, including the changes made in subsections (a) and (b) of this section, is modified as follows:

              FY06                  As Proposed      As Amended          Change  

              PE                               89,273           775,384           686,111

              Construction           1,375,000        2,500,360        1,125,000

              Other                      6,161,458        6,496,458           335,000

              Total                       7,626,091        9,772,202        2,146,111

            Source of Funds

              State                       6,535,818        7,421,929           886,111

              Federal                   1,090,273        2,350,273        1,260,000

              Total                       7,626,091        9,772,202        2,146,111

(d)  These changes are made to accomplish the objectives of subsections (a) and (b) of this section, to eliminate rail projects as a line item within program development and to consolidate all rail projects within the rail program.

Sec. 13.  SUNDERLAND RAILROAD BRIDGE

In connection with the Albany-Bennington-Rutland-Burlington (ABRB) project, the Sunderland Rail 04-9044 C/2 project (replacement of Vermont Railway Bridge No. 63 over Mill Brook at MP 17.93) shall be considered specifically authorized for purposes of chapter 58 of Title 5 of the Vermont statutes.

* * * Aviation Program * * *

Sec. 14.  AVIATION PROGRAM  

(a)  The following modifications are made to the program development –aviation projects program:

              FY06                  As Proposed      As Amended          Change  

              PE                             300,000                      0          -300,000

              Construction              350,000                      0          -350,000

              Other                         250,000                      0          -250,000

              Total                          900,000                      0          -900,000

            Source of Funds

              State                          230,000                      0          -230,000

              Federal                      670,000                      0          -670,000

              Total                          900,000                      0          -900,000

(b)  The aviations operations program is changed to the aviation program, and total authorized spending is modified as follows:

              FY06                  As Proposed      As Amended          Change  

              PE                             300,000           600,000           300,000

              Construction              907,500        1,257,500           350,000

              Other                      7,164,916        7,414,916           250,000

              Total                       8,372,416        9,272,416           900,000

            Source of Funds

              State                       1,992,416        2,222,416           230,000

              Federal                   6,380,000        7,050,000           670,000

              Total                       8,372,416        9,272,416           900,000

(c)  These changes are made to eliminate aviation projects as a line item within program development and to consolidate all aviation projects within the aviation program.

* * * Agency Vehicle Fleet * * *

Sec. 15.  AGENCY VEHICLE FLEET

Pursuant to 19 V.S.A. § 13(b), the agency is authorized to add one plow truck to the fleet to service an increase in lane mileage in district 1 and one aerial lift truck for signal repair and maintenance.

* * * Maintenance Program * * *

Sec. 16.  MAINTENANCE PROGRAM

(a)  The agency shall identify the segments of the state highway system on which there is a significant volume of bicycle traffic and direct the maintenance districts, within the constraints of authorized spending and in coordination with state highway maintenance work, to sweep and repair the shoulders of such segments to improve the shoulder paths available to bicyclists.  Whenever possible, the maintenance districts shall coordinate with the bike and ped coalition to identify bicycle rides and events which could benefit from pre-ride maintenance of state highways.

(b)  The sum of $25,000 in transportation funds is authorized for the shoulder maintenance work described in subsection (a) of this section.  The agency shall allocate the spending authority among the maintenance districts, taking into consideration the volume of bicycle traffic on different state highway segments and the condition of the shoulder paths along such segments which are available to bicyclists.

(c)  Spending authority for personal services in the maintenance program is increased by $105,000 in transportation funds.

(d)  Total spending authority for the maintenance program, including the changes made in subsections (a) through (c) of this section, is amended to read:

              FY06                  As Proposed     As Amended           Change  

              Personal                29,352,669      29,457,669           105,000

              Operating              24,446,617      24,471,617             25,000

              Grants                        987,800           987,800                      0

              Total                     54,787,086      54,917,086           130,000

            Source of Funds

              State                     54,079,586      54,209,586           130,000

              Federal                      707,500           707,500                      0

              Total                     54,787,086      54,917,086           130,000

* * * Transportation Buildings * * *

Sec. 17.  TRANSPORTATION BUILDINGS

(a)  The sum of $75,000 in transportation funds is authorized for replacement of the vehicle exhaust and ventilation system at the central garage.

(b)  The sum of $100,000 in transportation funds is authorized to update the electrical service and wiring at the central garage.

(c)  Total spending authority for the transportation buildings program, including the changes made in subsections (a) and (b) of this section, is amended to read:

              FY06                  As Proposed     As Amended             Change

              PE                             200,000           200,000                      0

              Construction           1,047,548        1,222,548           175,000

              Total                       1,047,548        1,422,548           175,000

            Source of Funds

              State                       1,247,548        1,422,548           175,000

              Total                       1,247,548        1,422,548           175,000

* * * Town Highway Bridge Program * * *

Sec. 18.  TOWN HIGHWAY BRIDGE PROGRAM

The following modifications are made to the town highway bridge program:

(1)  Spending authority for the Leicester BRF 0160(3) S project (replacement of Bridge No. 6 over Otter Creek on Leicester Junction Road/TH 1) is added to read:

              FY06                  As Proposed      As Amended            Change

              PE                                                     5,500                    5,500

              Construction                               1,200,000             1,200,000

              Total                                          1,205,500             1,205,500

            Source of Funds

              State                                             120,550                120,550

              Federal                                          964,400                964,400

              Local                                             120,550                120,550

              Total                                          1,205,500             1,205,500

(2)  Authorized spending for the Morrisville BRZ 1446(15) project is amended to read:

              FY06                  As Proposed      As Amended            Change

              Construction              378,531                      0          -378,531

              Total                          378,531                      0          -378,531

            Source of Funds

              State                            37,853                      0            -37,853

              Federal                      302,825                      0          -302,825

              Local                           37,853                      0            -37,853

              Total                          378,531                      0          -378,531

(3)  Notwithstanding 19 V.S.A. § 309a, the local share of the Bethel BRF 0241(33)C/2 project in all its phases through construction of a replacement bridge shall be five percent.  Fiscal year 2006 spending authority for the project is amended to read:

              FY06                  As Proposed      As Amended            Change

              Construction           2,500,000        2,500,000                      0

              Total                       2,500,000        2,500,000                      0

            Source of Funds

              State                          250,000           375,000           125,000

              Federal                   2,000,000        2,000,000                      0

              Local                         250,000           125,000          -125,000

              Total                       2,500,000        2,500,000                      0

(4)  The following projects and their associated funding as approved or amended by this act are moved to the bridge maintenance program:

      System       Project                               Project Number      Description

      Town         Johnson                              BHO 1448(18)      Rehab BR6

Town           Montpelier                          BHM 6400(25)      Rehab BR11

Town           Norwich                             TH2 9625              Rehab BR46

(5)  Total authorized spending in the town bridge program, including the changes made in subdivisions (1) - (4), is amended to read:

              FY06               As Proposed                   As Amended          Change

              Total                  20,955,427                     20,555,175       -400,252

            Source of Funds

              State                    4,248,628                       3,829,314       -356,314

              Federal              15,039,457                     15,099,183          59,726

              Local                   1,667,342                       1,563,678       -103,664

              Total                  20,955,427                     20,555,175       -400,252

* * * Town Highway Emergency Fund * * *

Sec. 19.  TOWN HIGHWAY EMERGENCY

Total authorized spending in the town highway emergency program is modified as follows:

              FY06                  As Proposed     As Amended            Change

              Grants                        750,000           350,000          -400,000

              Total                          750,000           350,000          -400,000

            Source of Funds

              State                          750,000           350,000          -400,000

              Total                          750,000           350,000          -400,000

* * * Additional Federal Funds * * *

Sec. 20.  ADDITIONAL FEDERAL FUNDS

To the extent federal funds become available beyond the funds authorized in fiscal year 2006 in the state’s transportation program, the secretary shall apply the funds, consistent with federal rules, as follows:

(1)  Subject to the requirements of 19 V.S.A. § 10h(a), to cover cash flow shortages on projects due to increased costs or faster than anticipated progress, or to obligate federal fiscal year 2006 funds to state fiscal year 2007 paving projects currently planned for advance construction in federal fiscal year 2006 (summer of calendar year 2006) and conversion in federal fiscal year 2007;  

(2)  To advance projects in the state’s fiscal year 2006 transportation program with priority given to shelf projects and projects in the safety and traffic operations, paving, bridge, or bridge maintenance programs.

* * * Transportation Funds * * *

Sec. 21.  19 V.S.A. § 11a is amended to read:

§ 11a.  TRANSPORTATION FUNDS APPROPRIATED FOR SUPPORT OF GOVERNMENT

For fiscal year 2006 and thereafter, the The maximum amount of transportation funds that may be appropriated for the support of government, other than for the agency of transportation, the transportation board, transportation pay act funds, the cost of maintaining and staffing rest areas, construction of transportation capital facilities used by the agency of transportation, and transportation debt service, for fiscal year 2006 shall not exceed 18.5 18.0 percent of the total of the prior fiscal year transportation fund appropriations and for fiscal year 2007 and thereafter, shall not exceed $38,221,563.00.

* * * Joint Transportation Oversight Committee * * *

Sec. 22.  19 V.S.A. § 12b(b) is amended to read:

(b)  The committee shall have authority to meet during adjournment and for official duties, members.  Members shall be entitled to compensation and reimbursement pursuant to 2 V.S.A. § 406.  The committee shall have the assistance of the staff of the legislative council and the joint fiscal office.

Sec. 23.  19 V.S.A. § 12b(d) is added to read:

(d)  In coordination with the regular meetings of the joint fiscal committee, the joint transportation oversight committee shall meet in mid-July, mid‑September, and mid-November.  At these meetings, the secretary of transportation shall report on the status of the state’s transportation programs, including a detailed description of the manner in which projects are selected, prioritized, and the manner in which projects are adjusted on the priority list, and a report on transportation finances.

* * * Public Transit * * *

Sec. 24.  24 V.S.A. § 5092 is amended to read:

§ 5092.  REPORTS

The agency of transportation, in cooperation with the public transit advisory council, shall develop an annual report of financial and performance data of all public transit systems that receive operating subsidies in any form from the state or federal government, including, but not limited to subsidies related to the elders and persons with disabilities transportation program for service and capital equipment.  Financial and performance data on the elders and persons with disabilities transportation program shall be a separate category in the report.  The report shall be modeled on the Federal Transit Administration’s national transit database program with such modifications as appropriate for the various services, including the guidance found in the most current short‑range public transportation plans and the most current state policy plan. The report shall describe any action taken by the agency pursuant to contractual authority to terminate funding for routes or to request service changes for failure to meet performance standards.  The report shall be available to the general assembly by January 15 of each year.

* * * Cancellation of Projects * * *

Sec. 25.  CANCELLATION OF PROJECTS

Pursuant to 19 V.S.A. § 10g(h) (legislative approval for cancellation of projects), the general assembly approves cancellation of the following projects:

(1)  Addison (Chimney Point) STP EH99(17) (construction of dock for sail ferry) (cancellation requested by sponsor town);

(2)  Chelsea STP EH02( ) (construction study for sidewalks in Chelsea village) (cancellation requested by sponsor town);

(3)  Derby Line Village STP EH02( ) (study of sidewalks in Derby Line village) (cancellation requested by sponsor town);

(4)  Hinesburg STP EH99(10) (construction of sidewalks/crosswalks in Hinesburg village) (cancellation requested by sponsor town);

(5)  North Hero STP EH02( ) (rehabilitation of existing town hall for visitor center) (cancellation requested by sponsor town); and

(6)  Richmond STP EH 97(15) (acquisition of scenic easement near I‑89, Exit 11 in Richmond) (cancellation requested by sponsor; property owner no longer interested in granting easement). 

* * * Central Garage * * *

Sec. 26.  19 V.S.A. § 13(c) is amended to read:

(c)  There shall be established and maintained within the central garage fund, a separate transportation equipment replacement account for the purposes stated in subsection (b) of this section.  Beginning in In fiscal year 2002 2006, $1,400,000.00 and in fiscal year 2007 and thereafter, an amount equal to two‑thirds of one percent of the prior year transportation fund appropriation, but not less than $1,400,000.00, shall be transferred prior to August 1 from the transportation fund to the central garage fund and allocated to the transportation equipment replacement account, and beginning in fiscal year 2001, and thereafter, an amount not less than the sum of equipment depreciation expense and net equipment sales from the prior fiscal year, shall be allocated prior to August 1 from within the central garage fund to the transportation equipment replacement account.  All expenditures from this account shall be appropriated by the general assembly and used exclusively for the purchase of equipment as authorized in subsection (b) of this section.

* * * Connecticut River Bridge Advisory Commission * * *

Sec. 27.  CONNECTICUT RIVER BRIDGE ADVISORY COMMISSION

(a)  19 V.S.A. § 36 (Connecticut River bridge advisory commission) is repealed.

(b)  This section shall take effect on the date that the same or similar provisions are enacted in New Hampshire.

* * * Emergency Repairs to Existing Facilities * * *

Sec. 28.  19 V.S.A. § 518(a) is amended to read:

(a)  For purposes of this section, the term “minor alterations to existing facilities” means:

(1)  activities Activities which qualify as “categorical exclusions” under 23 C.F.R. § 771.117(c) and the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321-4347, and do not require a permit under 10 V.S.A. chapter 151 (Act 250); or

(2)  Activities involving emergency repairs to or emergency replacement of an existing bridge or culvert, even though the need for repairs or replacement does not arise from damage caused by a natural disaster or catastrophic failure from an external cause; provided, however, that the activities do not require a permit under 10 V.S.A. chapter 151 (Act 250).  Any temporary rights under this subdivision shall be limited to 10 years from the date of taking.

* * * Maintenance Districts * * *

Sec. 29.  MAINTENANCE DISTRICTS

The agency’s maintenance districts shall provide the same level of service or better to the public and district municipalities as in prior fiscal years.  By January 15, 2006, the secretary shall report by letter to the house and senate committees on transportation on the configuration of management and administrative personnel in the agency’s nine maintenance districts and on the level of service provided by the maintenance districts to the public and district municipalities..

* * * Prefabricated Bridges * * *

Sec. 30.  PREFABRICATED BRIDGES

In the fiscal year 2007 transportation program, the agency shall identify potential candidates on the state, interstate, and town highway bridge systems for development and construction utilizing prefabricated components and construction techniques.

* * * Vermont Rail Authority Summer Study * * *

Sec. 31.  VERMONT RAIL AUTHORITY STUDY COMMITTEE

(a)  A summer study committee is established, consisting of one member of the house committee on transportation designated by the speaker of the house, one member of the senate committee on transportation designated by the committee on committees, the state treasurer or designee, the secretary of administration or designee, the secretary of transportation or designee, two representatives of the agency of transportation designated by the secretary of transportation, a representative of the department of economic development designated by the commissioner of economic development, and a representative of the Vermont rail advisory council designated by the council.  The secretary of transportation shall serve as chair of the committee.  Legislative members of the committee shall be entitled to per diem compensation and expense reimbursement as provided in 2 V.S.A. § 406(a).  Other members of the committee who are not state employees shall be entitled to per diem compensation and expense reimbursement as provided in 32 V.S.A. § 1010.  The committee is authorized to hold not more than four meetings.

(b)  The committee shall make recommendations regarding the advisability of creating a rail authority in the state of Vermont or altering the duties and responsibilities of the existing Vermont transportation authority created under 29 V.S.A. chapter 16.  The committee shall consider the following:

(1)  Advantages and disadvantages of transferring responsibility for management of state-owned railroad properties from the agency of transportation to an authority;

(2)  Efficient planning, development, and delivery of railroad projects;

(3)  Efficient coordination of adjustments to railroad facilities required by highway construction projects;

(4)  Impact on railroad operators;

(5)  Support of economic development activity in the state;

(6)  Regulatory jurisdiction of the transportation board over highway-rail crossings, farm crossings, fences, and other matters involving railroads; 

(7)  Financial requirements;

(8)  Impacts on the transportation fund and the state’s bond rating; and

(9)  Other issues that the committee may find relevant to the matter.

(c)  The agency of transportation, with the assistance of the legislative council and the joint fiscal office, shall provide administrative support for the committee.

(d)  The committee shall submit a report of recommendations to the house and senate committees on transportation by January 15, 2006, at which time the committee’s existence shall terminate.

* * * Bridge Maintenance Program* * *

Sec. 32.  BRIDGE MAINTENANCE PROGRAM

(a)  The bridge maintenance program is hereby created within the transportation program and as a separate appropriations line item.  The objective of the program is to maximize the useful life of Vermont’s bridges at least cost through a systematic program of asset management which will eliminate avoidable deterioration costs and maximize the availability of resources for all transportation purposes.  The following types of projects shall be eligible for inclusion in the bridge maintenance program:

(1)  Bridge painting, particularly projects that will remove lead‑based paints and improve the protective capacity of the structural steel coatings system;

(2)  Deck membrane replacements of deteriorating membranes with new higher performance membranes and pavement;

(3)  Deck replacements of structurally deficient decks where the remaining structural components of the bridge are in fair to good condition;

(4)  Large culvert rehabilitation, including the insertion of culvert linings to extend the useful life of large culverts; and

(5)  Substructure repairs where deterioration has affected the structural stability of the bridge.

(b)  The following bridge projects are included in the bridge maintenance program:

      System       Project          Project Number         Description

      Interstate    Bolton           IM 090-2(29)           Rehab BR#51, I-89 Bolton

      Interstate    Putney           IM 091-1(31)           Rehab bridge #17, I-91

      State          Cambridge    BHF 030-2(19)S      Rehab BR20, Lamoille                                                              River

      Town         Johnson         BHO 1448(18)         Rehab BR6, Lamoille                                                                River

      Town         Montpelier     BHM 6400(25)         Rehab BR11, north branch                                                       Winooski River

      Town         Norwich        TH2 9625                 Rehab BR46,                                                                           Ompompanoosuc River

(c)  Spending authority for the bridge maintenance program is added as follows.  To the extent available funds exceed the funding requirements of the projects identified in the program, the secretary shall select projects to receive the excess funds from the approved transportation program consistent with the objectives and criteria of the program as provided in subsection (a) of this section.

              FY06                  As Proposed     As Amended             Change

              Total                                               4,662,281        4,662,281

            Source of Funds

              State                                                  959,622           959,622

              Federal                                           3,641,298        3,641,298

              Local                                                   61,361             61,361

              Total                                               4,662,281        4,662,281

* * * Discretionary Spending Authority * * *

Sec. 33.  DISCRETIONARY SPENDING AUTHORITY

Spending authority in the amount of $156,334 in transportation funds and $1,838,613 in federal funds shall be allocated in the discretion of the secretary to projects in the safety and traffic operations, the town bridge, and the bridge maintenance programs.

* * * Municipal Equipment Loan Fund; Salt and Sand Sheds * * *

Sec. 34.  MUNICIPAL EQUIPMENT LOAN FUND; SALT AND SAND SHEDS

(a)  The state treasurer and the state traffic committee, as administrators of the municipal equipment loan fund established in 29 V.S.A. chapter 61, are directed to examine the possibility of expanding the use of the loan fund to cover the costs of municipal salt and sand sheds.  Section 39 of Title 19 currently requires the agency of transportation to work with municipalities to “… provide assistance in designing effective low cost enclosures for salt or sand storage, including off-the-shelf designs that incorporate economical construction materials to the extent allowed by the multisector general permit (MSGP) issued for Vermont by the United States Environmental Protection Agency.”  The treasurer and traffic committee shall confer with the secretary of natural resources in developing recommendations which address:

(1)  The cost to municipalities of acquiring salt and sand sheds which conform to the specifications resulting from assistance provided in 19 V.S.A. § 39. 

(2)  Increases to the loan fund necessary to implement an expansion of fund purposes to include salt and sand sheds.

(b)  The treasurer and traffic committee shall submit a report to the house and senate committees on transportation by January 15, 2006.

* * * Town Structures Program * * *

Sec. 35.  Sec. 254 of No. 122 of the Acts of the 2003 Adj. Sess. (2004) is amended to read:

Sec. 254.  Transportation - town highway structures

Grants                                     3,494,500        3,944,500

Source of Funds

Transportation fund                 3,494,500        3,944,500

(a)  Notwithstanding any other provision of law, in fiscal year 2004, the sum of $3,500,000.00 shall revert to the transportation fund from the town highway structures account, account # 8100000300.

(b)  Notwithstanding any other provision of law, in fiscal year 2005, the sum of $492,122.00 shall revert to the transportation fund from the town highway structures account, account # 8100000300.

(c)  Of the above appropriation, $450,000.00 is requested as a supplemental appropriation in accordance with 19 V.S.A. § 306(e) to fund additional costs for projects the agency has previously committed to and shall not be awarded as new grants. 

Sec. 36.  Sec. 258 of No. 122 of the Acts of the 2003 Adj. Sess. (2004) is amended to read:

Sec. 258.  Transportation – town highway bridges

Personal services                     3,610,000                    3,610,000

Operating expenses               16,903,263                  16,453,263

Grants                                        418,000                       418,000

Total                                22,931,263                  22,481,263

Source of Funds

Transportation fund                 7,129,406                    6,679,406

Local match                            1,384,030                    1,384,030

Federal funds                        12,417,827                  12,417,827

Total                                22,931,263                  22,481,263

* * * Vehicle Inspection Certificates * * *

Sec. 37.  23 V.S.A. § 1230 is amended to read:

§ 1230.  FEES CHARGE

For each inspection certificate issued by the department of motor vehicles, the commissioner shall be paid $0.50 $1.00; provided that state and municipal inspection stations that inspect only state or municipally owned and registered vehicles shall not be required to pay a fee.

* * * Town of Windsor; Dressler Barn * * *

Sec. 38.  CONVEYANCE OF DRESSLER BARN SITE TO TOWN OF WINDSOR

(a)  Notwithstanding 22 V.S.A. § 743(1) (historic preservation; cooperation of agencies), the secretary of transportation, as agent for the state of Vermont, is authorized to convey the historic Dressler Barn site, adjacent to the agency of transportation’s Windsor maintenance facility, to the town of Windsor.

(b)  The conveyance authorized by this section shall adhere to the requirements of 19 V.S.A. § 10k(b) and the town of Windsor shall be responsible, at its own expense, for obtaining any needed surveys and subdivision approvals.    

* * * Municipal Park and Ride Grant Demonstration Program * * *

Sec. 39.  MUNICIPAL PARK AND RIDE GRANT PROGRAM

The sum of $200,000 is authorized for use by the agency of transportation for the purpose of implementing the program established in Sec. 61 of Act No.160 of 2004.

* * * Purchase of State Police Cruisers * * *

Sec. 40.  STATE POLICE CRUISERS

The sum of $100,000 in transportation funds is authorized for expenditure by the department of public safety for the purchase of state police cruisers for field duty work.

* * * Welcome Center and Rest Area Monuments * * *

Sec. 41.  WELCOME CENTER AND REST AREA MONUMENTS

The sum of $50,000 in transportation funds is authorized for expenditure by the agency to fund the construction of monuments honoring the builders of Vermont’s interstate system to be located at welcome centers and rest areas at entry points to the state.

* * * Public Transit Preventive Maintenance * * *

Sec. 42.  RURAL PUBLIC TRANSIT PREVENTIVE MAINTENANCE

(a)  A new project, the rural public transit preventive maintenance project, is added to the public transit program.  The project shall be administered by the agency in accordance with federal transit administration regulations.

(b)  The public transit program is modified as follows.  Federal funds in the amount of $500,000 proposed for use in the new starts program are reallocated to the rural public transit preventive maintenance project.  Project spending authority shall be allocated to each transit provider in the state, other than the Chittenden County Transportation Authority (CCTA), according to the percentage of operating assistance funds that each provider was reimbursed from the statewide total of operating assistance funds in fiscal year 2005, excluding assistance received by CCTA, from the state operating assistance program and the following federal grant programs:  5307, 5311, 5311 elderly and disabled, job access reverse commute, and congestion mitigation air quality operating assistance, as detailed in the provider’s most recent audit.

(c)  In the event federal funds are allocated to a transit provider pursuant to this section and the provider does not have the local matching funds which are required to draw down the full amount of allocated federal funds, or the provider does not have federally eligible preventive maintenance expenses to utilize fully the allocated federal funds, the unutilized federal funds shall be reallocated to the other transit providers receiving funds under the project in accordance with the formula set forth in subsection (b) of this section adjusted to exclude the transit provider unable to utilize the federal funds.

(d)  Any funds provided by this section to a transit provider in fiscal year 2006 shall not be used to reduce the amount of locally generated funds committed by the provider for use in fiscal year 2006 as a condition to receiving state assistance.

Sec. 43.  CHITTENDEN COUNTY TRANSPORTATION AUTHORITY PREVENTIVE MAINTENANCE

A new project, the Chittenden County Transportation Authority (CCTA) preventive maintenance project, is added to the public transit program.  In the event the Chittenden County Metropolitan Planning Organization (CCMPO), with respect to any CCMPO area project in which the spending of federal funds is authorized in the fiscal year 2006 transportation program, approves of  a reduction in the authorized spending of federal funds and reallocates the unspent federal funds to the CCTA preventive maintenance project within the CCMPO transportation improvement plan (TIP), the reallocated federal funds in the TIP up to a total of $500,000 shall be allocated to the CCTA preventive maintenance project.  Upon the CCMPO’s amendment of the TIP as described in this section, the agency shall make such funds available to the CCTA.

* * * Project Prioritization * * *

Sec. 44.  19 V.S.A. § 10g(l) and (m) are added to read:

(l)  The agency shall develop a numerical grading system to assign a priority rating to all program development paving, program development roadway, program development safety and traffic operations, program development state and interstate bridge, and town highway bridge and bridge maintenance projects.  The rating system shall consist of two separate additive components as follows.

(1)  One component shall be limited to asset management‑based factors which are objective and quantifiable and shall consider, without limitation, the following:

(A)  existing safety conditions in the project area and the impact of the project on improving safety conditions;

(B)  the average, seasonal, peak, and nonpeak volume of traffic in the project area, including the proportion of traffic volume relative to total volume in the region, and the impact of the project on congestion and mobility conditions in the region;

(C)  the availability, accessibility, and usability of alternative routes;

(D)  the impact of the project on future maintenance and reconstruction costs; and

(E)  the relative priority assigned to the project by the relevant regional planning commission or the Chittenden County metropolitan planning organization.

(2)  The second component of the priority rating system shall consider, without limitation, the following factors:

(A)  the functional importance of the highway or bridge as a link in the local, regional, or state economy; and

(B)  the functional importance of the highway or bridge in the social and cultural life of the surrounding communities;

(m)  The annual transportation program shall include an individual priority rating pursuant to subsection (l) of this section for each highway paving, roadway, safety and traffic operations, and bridge project in the program along with a description of the system and methodology used to assign the ratings.

* * * Spring Projects * * *

Sec. 45.  Sec. 69b of H.143 of 2005 is amended by adding the following project to the list of projects:

      Program           Project  name                        Route            Project number

      Paving              Bolton-South Burlington         I-89 south     IM-089-2(36)

(Committee Vote: 6-0-0)

Reported favorably by Senator Kitchel for the Committee on Appropriations.

(Committee vote: 7-0-0)

(For House amendments, see House Journals for April 7, 2005, page 572; April 8, 2005, page 583.)

House Proposal of Amendment to Senate Proposal of Amendment

H. 243

An act relating to requiring the installation of carbon monoxide detectors in housing.

The House has concurred in the Senate proposal of amendment with the following amendment thereto:

In the Second proposal of amendment, in the new Sec. 3 (b)(2), by striking the word “commercial

Concurrent Resolutions for Notice Under Rule 16

     The following concurrent resolutions have been introduced for approval by the Senate and House and will be adopted automatically unless a Senator or Representative requests floor consideration before the end of the session of the next legislative day.  Requests for floor consideration in either chamber should be communicated to the Secretary’s office and/or the House Clerk’s office, respectively.

H.C.R. 104

House concurrent resolution congratulating the volunteer long‑term care ombudsmen program on the occasion of its 10th anniversary.

H.C.R. 105

House concurrent resolution congratulating the 2004-2005 University of Vermont Catamounts America East Conference championship men’s basketball team.

H.C.R. 106

House concurrent resolution honoring former Ripton Town Clerk and Treasurer Timothy Hanson.

H.C.R. 107

House concurrent resolution congratulating Ellen Sulek on being named a winner of a 2004 Presidential Award for Excellence in Math and Science Teaching.

H.C.R. 108

House concurrent resolution honoring and extending best wishes to Ernest Boulé of Tinmouth on the occasion of his 95th birthday.


H.C.R. 109

House concurrent resolution welcoming to the State House the commission on Alzheimer’s disease and related disorders.

H.C.R. 110

     House concurrent resolution congratulating the Burlington Electric Department on the centennial anniversary of its commencing electric generation.

H.C.R. 111

House concurrent resolution congratulating Hannah Kearney on winning the 2005 women’s moguls world championship in Ruka, Finland.

H.C.R. 112

House concurrent resolution congratulating the Rutland Hometown Heroes.

H.C.R. 113

House concurrent resolution congratulating Carol Amos on being named a winner of a 2004 Presidential Award for Excellence in Math and Science Teaching.

H.C.R. 114

House concurrent resolution congratulating Parks Place Community Resources Center on the organization’s tenth anniversary.

H.C.R. 115

House concurrent resolution congratulating the 2005 University of Vermont EISA championship ski team.

ORDERED TO LIE

S. 117

An act relating to state recognition of the Abenaki people.

PENDING ACTION:  Second reading of the bill.

(For text of amendment, see Senate Calendar for April 15, 2005, page 518)

S. 157

An act relating to rulemaking for Vermont origin.

PENDING ACTION:  Second reading  of the bill.


CONFIRMATIONS

     The following appointments will be considered by the Senate, as a group, under suspension of the Rules, as moved by the President pro tempore, for confirmation together and without debate, by consent thereby given by the Senate.  However, upon request of any senator, any appointment may be singled out and acted upon separately by the Senate, with consideration given to the report of the Committee to which the appointment was referred, and with full debate; and further, all appointments for the positions of Secretaries of Agencies, Commissioners of Departments, Judges, Magistrates, and members of the Public Service Board shall be fully and separately acted upon.

Theodore Lindgren of Springfield – Member of the Parole Board – By Sen. Campbell for the Committee on Institutions.  (4/14)

Joseph Acinapura of Brandon – Member of the Parole Board – By Sen. Giard for the Committee on Institutions.  (4/20)

Dean George of Middlebury – Member of the Parole Board – By Sen. Giard for the Committee on Institutions.  (4/20)

Denise Fehr of Shelburne – Commissioner of the Department of Information and Innovation – By Sen. Condos for the Committee on Government Operations.  (4/28)

Denise Fehr of Shelburne – Commissioner of the Department of Information and Innovation – By Sen. Condos for the Committee on Government Operations.  (4/28)

PUBLIC HEARINGS

Tuesday, May 3, 2005 – Room 11 – 6:00-8:00 P.M. – CUSTOMER SERVICE AND THE VERMONT DEPARTMENT OF TAXES – House Committee on Ways and Means.

Wednesday, May 4, 2005 – Room 11 – 5:00-7:00 P.M. – H. 241 – NO SMOKING IN BARS AND CLUBS – Senate Committee on Health and Welfare.



Published by:

The Vermont General Assembly
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Montpelier, Vermont


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