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Senate Calendar

tuesday, may 31, 2005

147th DAY OF BIENNIAL SESSION

TABLE OF CONTENTS

                                                                                                                Page No.

ACTION CALENDAR

NEW BUSINESS

UNFINISHED BUSINESS OF FRIDAY, MAY 27, 2005

Second Reading

Favorable with Recommendation of Amendment

S. 165     Economic advancement tax incentives & economic dev................... 1387

                        By the Com. on Ec. Dev., Housing & General Affairs............. 1387

                        Finance Committee report...................................................... 1387

                        Senators Illuzzi, Campbell and Miller amendment.................... 1395

                        Senators Dunne and Miller amendment................................... 1395

House Proposal of Amendment

S. 40       Fires resulting from cigarettes & other tobacco related issues........... 1396

                        Sen. Illuzzi amendment........................................................... 1402

NEW BUSINESS

Third Reading

Favorable with Proposal of Amendment

H. 115    Advance directives for health care................................................... 1402                              Sen. Kittell amendment       1402

Second Reading

Favorable with Recommendation of Amendment

S. 178     Expanding high school educational opportunities.............................. 1402

                        By the Committee on Education............................................. 1402

                        Appropriations Committee report........................................... 1402

House Proposals of Amendment

S. 15       Relating to voyeurism...................................................................... 1403


NOTICE CALENDAR

Favorable

H. 117    Teachers, state and municipal employees retirement systems............ 1424

                        Government Operations Committee report............................. 1424

H. 133    Governor’s retirement funds integrity report..................................... 1424

                        Government Operations Committee report............................. 1424

H. 134    Legislative information technology committee................................... 1425

                        Government Operations Committee report............................. 1425

H. 530    Amending the charter of the town of Bennington.............................. 1425

                        Government Operations Committee report............................. 1425

Favorable with Proposal of Amendment

H. 130    Executive branch fees..................................................................... 1425

                        Finance Committee report...................................................... 1425

H. 521    Miscellaneous tax amendments........................................................ 1435

                        Finance Committee report...................................................... 1435

House Proposal of Amendment

S. 171     Relating to agricultural water quality................................................. 1445

ORDERED TO LIE

S. 112     Relating to the practice of optometry............................................... 1459

S. 157     Relating to rulemaking for Vermont origin........................................ 1459




 

ORDERS OF THE DAY

ACTION CALENDAR

UNFINISHED BUSINESS OF FRIDAY, MAY 27, 2005

Second Reading

Favorable with Recommendation of Amendment

S. 165

An act relating to economic advancement tax incentives and economic development.

By the Committee on Economic Development, Housing and General Affairs.  (Sen. Illuzzi for the Committee).

Reported favorably with recommendation of amendment by Senator Ayer for the Committee on Finance, upon re-committal.

The Committee recommends that the bill be amended as follows:

First:  In Sec. 1, subdivision (3) by striking out the following: “Total reduction in Education Fund: 3.2 million” and inserting in lieu thereof  the following: Total reduction in Education Fund: 2.7 million

Second:  By striking  out Sec. 3 in its entirety and inserting in lieu thereof a new Sec. 3 to read as follows:

Sec. 3.  RECAPTURE AND DISALLOWANCE OF PRIOR EATI AWARDS

     (a)  The Attorney General shall consult with the Department of Taxes and the Vermont Economic Progress Council on legal strategies for recapturing or disallowing awards authorized by the council both prior to and subsequent to July 1, 2000.

     (b)  If the Attorney General concludes that legal action to recapture or disallow any awards is warranted, the Attorney General shall pursue appropriate legal action for the purpose.  The Attorney General may take legal actions in support of or independent of any administrative action taken by the Department of Taxes and the Vermont Economic Progress Council to recapture or disallow awards.

     (c)  On or before November 1, 2005, the Attorney General shall report to the Joint Fiscal Committee and the Economic Development Study Committee established by Sec. 9 of this act regarding any legal actions taken pursuant to subsection (b) of this section.  This report shall include recommendations by the Attorney General for statutory changes for recapturing or disallowing awards.

     (d)  For the purposes of this section, and notwithstanding any other provision of law, the Attorney General shall have access to all records and documents pertaining to the EATI awards subject to this section in the possession of the Vermont Economic Progress Council and the Department of Taxes, and shall in turn be subject to the confidentiality requirements and applicable penalties for any breach of confidentiality.

Third:  In Sec. 5, by striking out subsection (c) in its entirety and inserting in lieu thereof a new subsection (c) to read as follows:

(c)  For the fiscal years beginning July 1, 2005 but before July 1, 2007, the Vermont Economic Progress Council is authorized to grant the awards pursuant to the single, payroll-based incentive program established by Sec. 7 of this act.  Unless extended by act of the General Assembly, Sec. 7 of this act is repealed effective July 1, 2007, and any unused authorizations granted before July 1, 2007 shall remain in effect.

Fourth:  In Sec. 7, 32 V.S.A. § 5930b(g), by striking out the following:

Credits taken minus [qualifying capital investments made ÷ minimum qualifying capital investment] × total award

and inserting in lieu thereof the following:

Credits taken minus [(qualifying capital investments made ÷ minimum qualifying capital investment) × total award ]

Fifth:  In Sec. 7, 32 V.S.A. § 5930b, by striking out subsection (h) in its entirety and inserting in lieu thereof a new subsection (h) to read as follows:

     (h)  Notwithstanding subsection (e) of this section, the council may authorize credits in excess of the incentive ratio multiplied by the net fiscal benefit or credits resulting in a net fiscal cost.  In either case, credits under this section shall not exceed an annual authorization established by law. 

Sixth:  In Sec. 7, 32 V.S.A.§ 5930b(j), in the second sentence, following the word “contain” by inserting the following: information received from written reports in accordance with subsection 5930a(n) of this title,

Seventh:  By striking out Sec. 8 in its entirety and inserting in lieu thereof a new Sec. 8 to read as follows:

Sec. 8.  FISCAL YEAR 2006 CAPS

(a)  Net and excess fiscal cost annual authorization.  In fiscal year 2006, the annual authorization for credits in excess of the incentive ratio multiplied by the net fiscal benefits or credits resulting in a new fiscal cost, which the council may approve under 32 V.S.A. § 5930b(h), and property tax allocations and tax increment financing districts under 32 V.S.A. § 5404a(e) and (f), shall not exceed $1,000,000.00 from the general fund and education fund combined.  Incentives approved within this annual authorization amount for the total net and excess fiscal cost shall be granted solely for awards to businesses located in a labor market area of this state in which the rate of unemployment is greater than the average for the state or in which the average annual wage is below the average annual wage for the state.  For the purposes of this section, a “labor market area” shall be determined by the department of employment and training.

(b)  Total credit and benefit annual authorization.  In fiscal year 2006, the total amount of payroll-based job credits the Vermont Economic Progress council is authorized to approve under 32 V.S.A. § 5930b and property tax allocations and tax increment financing districts under 32 V.S.A. § 5404a(e) and (f) shall not exceed $17,500,000.00 from the general fund and education fund combined.  This maximum annual amount may be exceeded by the Vermont Economic Progress Council upon application to and approval of the Emergency Board.

Eighth:  By inserting a new section to be numbered Sec. 7a to read as follows:

Sec. 7a.  21 V.S.A. § 1314(e)(1) is amended to read:

(e)(1)  Subject to such restrictions as the board may by regulation prescribe, information from unemployment insurance records may be made available to any public officer or public agency of this or any other state or the federal government dealing with the administration of relief, public assistance, unemployment compensation, a system of public employment offices, wages and hours of employment, or a public works program for purposes appropriate to the necessary operation of those offices or agencies.  The commissioner may also make information available to colleges, universities and public agencies of the state, for use in connection with research projects of a public service nature, and to the Vermont economic progress council with regard to the administration of subchapter 11E of chapter 151 of Title 32; but no person associated with those institutions or agencies may disclose that information in any manner which would reveal the identity of any individual or employing unit from or concerning whom the information was obtained by the commissioner.

* * *

Ninth: In Sec. 9, subsection (d), in subdivisions (1) and (2), by striking out the word “oversee” each time it appears and inserting in lieu thereof the word review and in subdivision (2), by striking the year “2006” and inserting in lieu thereof the year 2007

Tenth:  By striking out Sec. 10 (film industry credits) in its entirety and inserting in lieu thereof three new sections to be numbered Secs. 10, 10a, and 10b to read as follows:

Sec. 10.  10 V.S.A. § 291 is amended to read:

§ 291.  VERMONT SEED CAPITAL FUND; AUTHORIZATION; LIMITATIONS

* * *

(b)  The Vermont seed capital fund shall be formed as either a business corporation or a limited partnership pursuant to Title 11 and shall be subject to all the following:

* * *

(2)  Before the fund makes any investments, the fund shall:

(A)  If organized as a corporation, have and thereafter maintain a board of nine directors, seven of whom shall to be elected by the shareholders and two of whom shall be appointed by the governor with the advice and consent of the senate and shall represent the public interest of the state.

(B)  If organized as a partnership, have and maintain a board of three advisors appointed by the governor with the advice and consent of the senate Vermont economic development authority.  The board of advisors shall represent solely the public economic interest of the state with respect to the management of the fund and shall have no civil liability for the financial performance of the fund.  The board of advisors shall be advised of investments made by the fund and shall have access to all information held by the fund with respect to investments made by the fund.

* * *

(5)  No person shall be allocated more than 10 percent of the available tax credits.  For the purposes of determining allocation, the attribution rules of Section 318 of the Internal Revenue Code in effect as of the effective date of this chapter shall apply.

(6)  The first $2  million of initial capitalization of the Vermont seed capital fund raised from Vermont taxpayers by the termination date as set by the fund, which termination date shall be on or before January 1, 2014, shall be eligible for partial tax credits as specified in 32 V.S.A. § 5830b.

(7)  All investments and related business dealings using funds that qualify for partial tax credits under 32 V.S.A. § 5830b shall be subject to the following restrictions:

(A)  The investments shall be restricted to Vermont firms, which for the purposes of this chapter means that their Vermont apportionment equals or exceeds 50 percent, using the apportionment rules under 32 V.S.A. § 5833, and they maintain headquarters and a principal facility in VermontAny funds invested in Vermont firms shall be used for the purpose of enhancing their Vermont investments.  Investment shall be restricted to firms that export the majority of their products and services outside the state or add substantial value to products and materials within the state.  In its investments, the fund shall give priority to new firms and existing firms that are developing new products.

* * *

Sec. 10a.  10 V.S.A. § 293 is amended to read:

§ 293.  CAPITALIZATION

The fund may solicit and receive subscriptions, provided that if total subscriptions for amounts exceeding $2 the fund exceed $5 million by the termination date as set by the fund, the tax credit amount available to taxpayers under 32 V.S.A. § 5830b shall be reduced pro rata among subscribers subscribing for more than $2 million in the event the issue is oversubscribed by the termination date as set by the fund subscriber taxpayers so that the total cost of the tax credits shall be $1 million.  The minimum capitalization shall be $1 million.

Sec. 10b.  32 V.S.A. § 5830b is amended to read:

§ 5830b.  TAX CREDITS; VERMONT SEED CAPITAL FUND

(a)  The initial capitalization of the Vermont seed capital fund, comprising a maximum $2 $5 million raised from Vermont taxpayers on or before

January 1, 2007 2014, shall entitle those taxpayers to a credit against the tax imposed by sections 5822, 5832, 5836, or 8551 of this title.  The credit may be claimed for the taxable year in which a contribution is made and each of the four succeeding the next taxable years year.  The amount of the credit for each year shall be the lesser of ten percent of the taxpayer's contribution or 50 20 percent of the taxpayer's tax liability for that taxable year prior to the allowance of this credit; provided, however, that in no event shall the aggregate credit allowable under this section for all taxable years exceed 50 20 percent of the taxpayer's contribution to the initial $2 $5 million capitalization of the Vermont seed capital fund.  The credit shall be nontransferable except as provided in subsection (b) of this section.  The amount of the credit available under this section will be reduced proportionally by the provisions of 10 V.S.A. § 293 if fund subscriptions exceed $5 million.

     (b)  If the taxpayer disposes of an interest in the Vermont seed capital fund within four two years after the date on which the taxpayer acquired that interest, any unused credit attributable to the disposed-of interest is disallowed. This disallowance does not apply in the event of an involuntary transfer of the interest, including a transfer at death to any heir, devisee, legatee, or trustee, or in the event of a transfer without consideration to or in trust for the benefit of the taxpayer or one or more persons related to the taxpayer as spouse, descendant, parent, grandparent, or child.

Eleventh:  By striking out Secs. 12 and 13 (Wood products credits) in their entirety.

Twelfth:  In Sec. 14, 32 V.S.A. § 5930a(a), in the seventh sentence, by striking out the word “may” each time it appears and inserting in lieu thereof the word shall and in the eighth sentence, after the words “general assembly” by inserting the following: shall serve two-year terms and and in the eleventh sentence; by inserting after the following: “section 1010 of this” the word title and by striking out the words “any members appointed by the general assembly who are members of the legislature” and inserting in lieu thereof the words legislative members

Thirteenth:  By striking out Sec. 17 (Brownfields) in its entirety.

Fourteenth: In Sec. 18, 32 V.S.A. § 5404a, by striking out subsections (e) and (f) in their entirety and inserting in lieu thereof new subsections (e) and (f) to read as follows:

(e)  A municipality may apply to the Vermont economic progress council for an allocation of the education grand list value for up to ten years, of a portion of the increase in the value and liability assessed under section 5402 of this title on new economic development that is subsequently real property improvements approved by the Vermont economic progress council pursuant to this section and section 5930a of this title.  The council shall not approve an allocation unless it determines that the project is consistent overall with the “but for” test, the guidelines, and other criteria set forth in subsection 5930b(c), (d), and (e) of this title.  Allocation to a municipality pursuant to this subsection shall be in addition to any other payments to the municipality under chapter 133 of Title 16.  If allocated, the allocated portion of the education fund liability shall be used by the municipality to support economic development through the purchase or financing of for infrastructure, including, but not limited to wastewater treatment, water supply, transportation, and utility connections, that supports the real property improvements.

(f)  Municipalities which have existing tax increment financing districts under subchapter 5 of chapter 53 of Title 24 shall have the authority to expand those districts and to collect all state and local property taxes on properties within the tax increment financing district and apply those revenues to repayment of debt issued to finance improvements within the tax increment financing district to the extent approved for this purpose by the Vermont economic progress council  upon application by the district under procedures for approval of tax stabilization agreements under this section, and that any such action shall be included in the annual authorization limits provided in section 5930a(d)(1) of this title set forth in subsection 5930b of this title.  Approval shall be given only if the council determines that the new real property improvements would not have occurred but for the proposed application of the new tax revenues or would have occurred in a significantly different or significantly less desirable manner.  The council shall also evaluate the overall consistency of the project with the criteria set forth in subsections 5930b(c), (d), and (e) of this title.

Fifteenth: By adding two new sections to be numbered Secs.18a and 18b to read as follows:

Sec. 18a.  32 V.S.A. § 312 is added to read:

§ 312.  TAX EXPENDITURE LEGISLATION AND REPORTS

     (a)  For purposes of this section, “tax expenditure” shall mean the actual or estimated loss in tax revenue resulting from any exemption, exclusion, deduction, or credit applicable to the tax.

(b)  Tax expenditure legislation.  In any legislation which proposes to enact a tax expenditure for a state-level tax, the general assembly shall include a statement of the following:

          (1)  A description of the tax expenditure.

         (2)   A description of and the estimated number of taxpayers who will directly benefit from the expenditure.

          (3)  The estimated annual cost of the tax expenditure.

     (c)  Tax expenditure reports.  Annually, as part of the budget process, beginning January 15, 2009, the department of taxes shall file with the house committees on ways and means and appropriations and the senate committees on finance and appropriations a report on tax expenditures that are reported on filed personal and corporate income, sales and use, and meals and rooms tax returns, and education property tax grand lists.  The report shall also include, for each tax expenditure, the following information:

          (1)  A description of the tax expenditure.

          (2)  The most recent fiscal information available on the direct cost of the tax expenditure in the past two years.

          (3)  The purpose of the expenditure as described in the enacting legislation and the most recent measure of whether the purpose is being achieved.

          (4) A description of and estimate of the number of taxpayers directly benefiting from the expenditure provision.

Sec. 18b.  TRANSITION REPORTS

     (a)  The department of taxes shall file with the House Committees on Ways and Means and Appropriations, and to the Senate Committees on Finance and Appropriations reports on the following:

          (1)  By January 15, 2006, tax expenditures reported under the personal and corporate income tax with the information required by32 V.S.A. § 312(c) for the most recent fiscal year available.

          (2)  By January 15, 2007, tax expenditures reported under the personal and corporate income tax and the sales and use tax, with the information required by 32 V.S.A. § 312(c) for the most recent fiscal year available.

          (3)  By January 15, 2008, tax expenditures under the personal and corporate income tax, sales and use tax and meals and rooms tax, and education property tax, with the information required by 32 V.S.A. § 312 (c) for the most recent fiscal year available.

     (b)  The department of taxes shall advise the Joint Fiscal Committee at its September meeting in 2005, 2006, and 2007, on the status of the department’s research in preparation for the report due the following January under subsection (a) of this section.

Sixteenth:  By striking out Sec. 19 in its entirety and inserting in lieu thereof a new Sec. 19 to read as follows:

Sec. 19.  EFFECTIVE DATES

This act shall take effect from passage, except that:

(1)  Secs. 5 and 6, providing for termination of the EATI program, shall take effect for taxable years beginning on and after July 1, 2005.

(2)  Secs. 7 and 8, providing for the creation of the payroll-based tax credit program, shall take effect July 1, 2005, and Sec. 7 shall terminate July 1, 2007 unless extended by the General Assembly.

(3)  Sec. 10, relating to repeal of the financial services development tax credit, shall take effect July 1, 2005.

          (4)  Secs. 11, 12, and 13, relating to VEPC board membership, public information, and reporting, shall take effect July 1, 2005.

(Committee vote: 5-0-2)

AMENDMENT TO S. 165 TO BE OFFERED BY SENATORS ILLUZZI, CAMPBELL AND MILLER

Senators Illuzzi Campbell and Miller move to amend the bill in Sec. 4 by striking out subdivision (4) in its entirety and inserting in lieu thereof the following:

(4) the minimum level of restoration of employment necessary within the recapture period shall be seventy-five percent of the highest annual average number of full-time employees of the applicant during any year in a period of six years after the initial authorization of an incentive by the council.

AMENDMENT TO S. 165 TO BE OFFERED BY SENATORS DUNNE AND MILLER BEFORE THIRD READING

Senators Dunne and Miller move to amend the bill by adding new Secs 17a, 17b and 17c to read:

Sec. 17a.  32  V.S.A. §5401 (10) is amended to read:

(10) "Nonresidential property" means all property except:

* * *

(H) Real property, excluding land, consisting of unoccupied new facilities, or unoccupied facilities under renovation or expansion, owned by a business that has obtained the approval of the Vermont economic progress council under section 5930a of this title that is less than 75 percent complete, not in use as of April 1 of the applicable tax year, and for a period not to exceed two years.

(I) Real property consisting of the value of remediation expenditures incurred by a business that has obtained the approval of the Vermont economic progress council under section 5930a of this title for the construction of new, expanded or renovated facilities on contaminated property eligible under the redevelopment of contaminated properties program pursuant to section 6615a(f) of Title 10, including supporting infrastructure, on sites eligible for the United States Environmental Protection Agency "Brownfield Program," for a period of ten years.  For ten years after the date of enrollment, real property that is enrolled in the redevelopment of contaminated properties program pursuant to section 6615a of Title 10 or for which a certificate of completion of that program has been filed in the land records except to the extent of the greater of:

(a) the value at the time of enrollment in the program, or

(b) the value reduced by three times the total abatement, removal and remediation expenditures made pursuant to a corrective action plan under the program.

Sec. 17b. 10  V.S.A. §6615a(j)(2)(E) is amended to read:

(E) provide to the state all documents and information relating to the performance and cost of the investigation, abatement, removal, remediation and monitoring activities;

Sec. 17c.  Effective dates

     Secs 17a and 17b of this act shall take effect from passage, and affect property tax grand lists for the ten years following enrollment.

House Proposal of Amendment

S. 40

An act relating to reducing fires resulting from the careless use of cigarettes and to other tobacco-related issues.

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

Sec. 1.  20 V.S.A. chapter 173, subchapter 2A is added to read:

Subchapter 2A.  Fire Safety and Cigarettes

§ 2756.  PURPOSE

It is the intent of this act to require that only reduced ignition propensity  cigarettes be sold in Vermont.  Although these cigarettes are not guaranteed to self-extinguish, they are expected to reduce fires and related personal injury and property damage caused by cigarette smoking.

§ 2757.  CIGARETTES; REDUCED IGNITION PROPENSITY

(a)  For the purposes of this section:

(1)  “Cigarette” means any product that contains any amount of nicotine, irrespective of size, shape, or presence of other ingredients, and is intended to be burned or heated under ordinary conditions of use and consists of or contains any roll of tobacco wrapped in paper or in any other substance, other than tobacco, and because of its appearance, the type of tobacco used, and its packaging or labeling is offered to or purchased by consumers as a cigarette.

(2)  “Manufacturer” means any person or a successor that manufactures or produces cigarettes or causes cigarettes to be manufactured or produced, whether in state or out of state, and intends to sell the cigarettes in Vermont directly or through an importer, including any first purchaser that intends to resell cigarettes.

(3)  “Quality control and quality assurance program” means laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors, and equipment‑related problems do not affect the results of the testing and to ensure that the testing repeatability remains within the required repeatability value for any test trial used to certify cigarettes under this section.

(4)  “Repeatability” means the range of values within which the repeat results of cigarette test trials from a single laboratory will fall 95 percent of the time.

(5)  “Retail dealer” means any person other than a wholesale dealer engaged in the sale of cigarettes or tobacco products.

(6)  “Sale” or “selling” means any transfer of title or possession, exchange or barter, conditional or otherwise, and includes the giving of cigarettes as samples, prizes, or gifts and the exchange of cigarettes for any consideration.

(7)  “Stamping agent” means any stamping agent pursuant to 33 V.S.A. § 1916. 

(8)  “Wholesale dealer” means any person that sells cigarettes or tobacco products to retail dealers or other persons for resale, and includes any person that owns, operates, or maintains one or more cigarette or tobacco product vending machines wherever located.  “Wholesale dealer” also includes the dealer’s agent. 

(b)  No cigarettes may be manufactured in this state or sold or offered for sale to any person in this state unless the cigarettes have been tested in accordance with the test method and meet the performance standard specified in this subsection, and the manufacturer has filed a written certification with the commissioner in accordance with subsection (c) of this section.  The performance standard for cigarettes sold or offered for sale in Vermont includes all the following:

(1)  Testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials (ASTM) standard E2187-04 “Standard Test Method for Measuring the Ignition Strength of Cigarettes.”  The commissioner may adopt a subsequent ASTM Standard Test Method for Measuring the Ignition Strength of Cigarettes upon a finding that the subsequent method does not result in a change in the percentage of full-length burns exhibited by any tested cigarette when compared to the percentage of full-length burns the same cigarette would exhibit when tested in accordance with ASTM Standard E2187-04 and the performance standard of this subsection.

(2)  Testing of cigarettes shall be conducted on ten layers of filter paper.

(3)  No more than 25 percent of the cigarettes tested in a test trial shall exhibit full-length burns.  Forty replicate tests shall comprise a complete test trial for each cigarette tested. 

(4)  The performance standard required by this subsection shall only be applied to a complete test trial.

(5)  Laboratories that conduct tests in accordance with this subsection shall implement a quality control and quality assurance program that includes a procedure to determine the repeatability of the testing results.  The repeatability value shall be no greater than 0.19.

(6)  Each cigarette listed in a certification that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard in this subsection shall have at least two nominally identical bands on the paper surrounding the tobacco column.  At least one complete band shall be located at least 15 millimeters from the lighting end of the cigarette.  For cigarettes on which the bands are positioned by design, there shall be at least two bands located at least 15 millimeters from the lighting end and ten millimeters from the filter end of the tobacco column.  In the case of an unfiltered cigarette, the two complete bands shall be located at least 15 millimeters from the lighting end and ten millimeters from the labeled end of the tobacco column.

(7)  The manufacturer of a cigarette that the commissioner determines cannot be tested in accordance with the test method required by this subsection shall propose to the commissioner a test method and performance standard for that cigarette.  The commissioner may approve a test method and performance standard that the commissioner determines is equivalent to the requirement of this subsection, and the manufacturer may use that test method and performance standard for certification pursuant to subsection (c) of this section. 

(8)  A manufacturer shall retain all data from testing conducted under this section for a period of three years.  The manufacturer shall provide that data to the commissioner and the attorney general upon request in order to ensure compliance with the performance standard required by this subsection.

(c)  Each manufacturer shall submit to the commissioner written certification attesting that each cigarette has been tested in accordance with and has met the performance standard required under subsection (b) of this section.  The description of each cigarette listed in the certification shall include the brand; style; length in millimeters; circumference in millimeters; flavor, if applicable; filter or nonfilter; package description, such as a soft pack or box; and the mark approved pursuant to subsection (d) of this section.  Upon request, this certification shall be made available to the attorney general and department of liquor control.  Each cigarette certified under this subsection shall be recertified every three years.

(d)  Cigarettes that have been certified pursuant to subsection (c) of this section shall be marked pursuant to the following requirements:

(1)  The marking shall be in a font of at least eight‑point type and shall include one of the following:

(A)  Modification of the product UPC Code to include a visible mark printed at or around the area of the UPC Code.  The mark may consist of one or more alphanumeric or symbolic characters permanently stamped, engraved, embossed, or printed in conjunction with the UPC Code.

(B)  Any visible combination of alphanumeric or symbolic characters permanently printed, stamped, engraved, or embossed on the cigarette package or the cellophane wrap.

(C)  Printed, stamped, engraved, or embossed text that indicates that the cigarettes meet the standards of this section.

(2)  A manufacturer shall request approval of a proposed marking from the commissioner.  Any marking approved and in use for the sale of cigarettes in the state of New York shall be approved unless the commissioner determines that the New York Fire Safety Standards for Cigarettes have changed significantly since those standards were effective on June 28, 2004.  A marking shall be deemed approved if the commissioner fails to act within 10 business days of receiving a request for approval.  A manufacturer shall not use a modified marking unless the modification has been approved in accordance with this subdivision.  A manufacturer shall use only one marking on all brands that the manufacturer markets.  A marking or modified marking approved by the commissioner shall be applied uniformly on all brands marketed and on all packages, including packs, cartons, and cases marketed by that manufacturer.

(e)  A manufacturer shall provide a copy of certifications to all wholesale dealers and stamping agents to which the manufacturer sells cigarettes and shall provide sufficient copies of an illustration of the packaging marking approved and used by the manufacturer pursuant to subsection (d) of this section for each of the retail dealers that purchases cigarettes from any of those wholesale dealers and stamping agents.  Wholesale dealers and stamping agents shall provide a copy of the illustration to all retail dealers to which they sell cigarettes.  Wholesale dealers, stamping agents, and retail dealers shall permit the commissioner of public safety or the commissioner of liquor control or their designees to inspect markings on cigarette packaging at any time.

(f)  The commissioner:

(1)  May adopt rules necessary to implement and administer this section.

(2)  In consultation with the commissioner of liquor control, may adopt rules regarding the conduct of random inspections of wholesale dealers, importers, retail dealers, and stamping agents to ensure compliance with this section. 

(3)  Shall assure that the implementation and substance of this section is in accordance with the implementation and substance of the New York Fire Safety Standards for Cigarettes.

(g)  The following civil penalties may be assessed:

(1)  Against a manufacturer, wholesale dealer, unlicensed retailer, or any other person that knowingly sells cigarettes, except by licensed retail sales, in violation of subsection (b) of this section a civil penalty not to exceed $10,000.00 for each sale.

(2)  Against a manufacturer that knowingly makes a false certification pursuant to subsection (c) of this section a civil penalty not to exceed $10,000.00 for each false certification. 

(3)  Against a licensed retail dealer that knowingly sells or offers for sale cigarettes in violation of subsection (b) of this section a civil penalty not to exceed $500.00 for each sale or offer of sale of 1,000 cigarettes or fewer.

(4)  Against a licensed retail dealer that knowingly sells or offers for sale cigarettes in violation of subsection (b) of this section a civil penalty not to exceed $1,000.00 for each sale or offer of sale of more than 1,000 cigarettes.

(5)  Against any other person that violates any provision of this section a civil penalty not to exceed $1,000.00 for each violation.  Any cigarettes sold or offered for sale that do not comply with the safety standard required by subsection (b) of this section shall be deemed to be contraband and subject to the provisions of 7 V.S.A. § 1009.

(h)  In addition to any other remedy provided by law, the attorney general may file an action in superior court for a violation of this section, including petitioning for injunctive relief, recovery of costs or damages suffered by the state as the result of a violation of this section, including enforcement costs relating to the specific violation and attorney fees.  In any such action, the attorney general shall have the same authority to investigate and obtain remedies, except civil penalties under subsection (g) of this section, as if the action were brought pursuant to the consumer fraud act, chapter 63 of Title 9.  Each violation of this section or of any rule adopted under this section shall constitute a separate civil violation for which the attorney general may obtain relief.

Sec. 2.  7 V.S.A. § 1009 is amended to read:

§ 1009.  CONTRABAND AND SEIZURE

Any cigarettes or other tobacco products that have been sold, offered for sale, or possessed for sale in violation of section 1003 of this title, section 2757 of Title 20, section 7786 of Title 32, or section 1919 of Title 33 shall be deemed contraband, and such cigarettes shall be subject to seizure by the commissioner, the commissioner’s agents or employees, the commissioner of taxes, or any agent or employee thereof, or by any peace officer of this state when directed to do so by the commissioner.  All such cigarettes or other tobacco products so seized and forfeited shall be destroyed and not resold.

Sec. 3.  CONSTRUCTION; EFFECTIVE DATE

(a)  Nothing in this act shall be construed to prohibit any person from manufacturing or selling cigarettes that do not meet the requirements of 20 V.S.A. § 2757(b) if the cigarettes are or will be stamped for sale in another state or are to be sold outside the United States.

 (b)  This act shall be deemed repealed if federal fire safety standards for cigarettes that preempt this act are enacted and take effect subsequent to the effective date of this act, and the commissioner of public safety so notifies the secretary of state.   

(c)  This act shall take effect May 1, 2006.  However, the requirement that cigarettes sold in Vermont must be in compliance with Sec. 1 of this act shall not prohibit wholesale or retail dealers from selling existing cigarette inventories on or after May 1, 2006, provided the wholesale dealer or retailer can establish both of the following:

(1)  The Vermont tax stamps were affixed to the cigarettes pursuant to 32 V.S.A. § 7774 prior to May 1, 2006.

(2)  The inventory was purchased prior to May 1, 2006, and the purchased inventory is comparable to the amount of inventory purchased during the same period the previous year.

PROPOSAL OF AMENDMENT TO HOUSE PROPOSAL OF AMENDMENT TO S. 40 TO BE OFFERED BY SENATOR ILLUZZI

Senator Illuzzi moves that the Senate concur in the House proposal of amendment, with the following amendment thereto:

In Sec. 3 [CONSTRUCTION; EFFECTIVE DATE], subsection (a), by striking out the words “or will be

NEW BUSINESS

Third Reading

H. 115

An act relating to advance directives for health care.

PROPOSAL OF AMENDMENT TO H. 115 TO BE OFFERED BY SENATOR KITTELL BEFORE THIRD READING

Senator Kittell moves to amend the Senate proposal of amendment in Sec. 1, 18  V.S.A. § 9707(h)(1), by adding a new subdivision (H) to read as follows:

(H)  The provision shall be initialed and dated by the principal five years from the date the provision is executed and every five years thereafter, unless the principal lacks capacity at the time such initialing would be required.

Second Reading

Favorable with Recommendation of Amendment

S. 178

An act relating to recommendations for expanding high school educational opportunities.

By the Committee on Education.

Reported favorably with recommendation of amendment by Senator Bartlett for the Committee on Appropriations.

The Committee recommends that the bill be amended in Sec. 1(d), by striking out the word “eight” and inserting in lieu thereof the word six.

(Committee vote: 7-0-0)

House Proposal of Amendment

S. 15

An act relating to voyeurism.

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

Sec. 1.  SHORT TITLE

This act may be referred to and cited as “The Safe Communities Act.”

Sec. 2.  13 V.S.A. § 2638 is added to read:

§ 2638.  VOYEURISM

(a)  As used in this section:

(1)  “Bona fide private investigator or bona fide security guard” means an individual lawfully providing services, whether licensed or unlicensed, pursuant to sections 3151 and 3151a of Title 26.

(2)  “Circumstances in which a person has a reasonable expectation of privacy” means circumstances in which a reasonable person would believe that his or her intimate areas would not be visible to the public, regardless of whether that person is in a public or private area.

(3)  “Intimate areas” means the naked or undergarment-clad genitals, pubic area, buttocks, or female breast of a person.

(4)  “Place where a person has a reasonable expectation of privacy” means:

(A)  a place in which a reasonable person would believe that he or she could disrobe in privacy, without his or her undressing being viewed by another; or

(B)  a place in which a reasonable person would expect to be safe from unwanted intrusion or surveillance.

(5)  “Surveillance” means secret observation of the activities of another person for the purpose of spying upon and invading the privacy of the person.

(6)  “View” means the intentional looking upon another person for more than a brief period of time, in other than a casual or cursory manner, with the unaided eye or a device designed or intended to improve visual acuity.

(b)  No person shall intentionally view, photograph, film, or record in any format:

(1)  the intimate areas of another person without that person’s knowledge and consent while the person being viewed, photographed, filmed, or recorded is in a place where he or she would have a reasonable expectation of privacy; or

(2)  the intimate areas of another person without that person’s knowledge and consent and under circumstances in which the person has a reasonable expectation of privacy.

(c)  No person shall disseminate any image recorded in violation of subsection (b) of this section. 

(d)  No person shall intentionally conduct surveillance or intentionally photograph, film, or record in any format a person without that person’s knowledge and consent while the person being surveilled, photographed, filmed, or recorded is in a place where he or she would have a reasonable expectation of privacy within a home or residence.  Bona fide private investigators and bona fide security guards engaged in otherwise lawful activities within the scope of their employment are exempt from this subsection.

(e)  This section shall apply to a person who intentionally views, photographs, films, or records the intimate areas of a person as part of a security or theft prevention policy or program at a place of business. 

(f)  This section shall not apply to:

(1)  a law enforcement officer conducting official law enforcement activities in accordance with state and federal law; or

(2)  official activities of the department of corrections, a law enforcement agency, the agency of human services, or a court for security purposes or during the investigation of alleged misconduct by a person in the custody of the department of corrections, a law enforcement agency, the agency of human services, or a court.

(g)  This section is not intended to infringe upon the freedom of the press to gather and disseminate news as guaranteed by the First Amendment to the Constitution of the United States.

(h)  It shall be an affirmative defense to a violation of subsection (b) of this section that the defendant was a bona fide private investigator or bona fide security guard conducting surveillance in the ordinary course of business, and the violation was unintentional and incidental to otherwise legal surveillance.  However, an unintentional and incidental violation of subsection (b) of this section shall not be a defense to a violation of subsection (c). 

(i)  For a first offense, a person who violates subsection (b) or (d) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both.  For a second or subsequent offense, a person who violates subsection (b) or (d) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both.  A person who violates subsection (c) of this section shall be imprisoned not more than five years or fined not more than $5,000.00, or both. 

Sec. 3.  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:

(i)  sexual assault as defined in 13 V.S.A. § 3252;

(ii)  aggravated sexual assault as defined in 13 V.S.A. § 3253;

(iii)  lewd and lascivious conduct as defined in 13 V.S.A. § 2601;

(iv)  sexual activity by a caregiver as defined in 33 V.S.A. § 6913(d);

(v)  second or subsequent conviction for voyeurism as defined in 13 V.S.A. § 2638(b) or (c); and

(vi)  an attempt to commit any offense listed in this subdivision.

* * *

Sec. 4.  13 V.S.A. § 1061 is amended to read:

§ 1061.  DEFINITIONS

As used in this subchapter,:

(1)  “Stalk” means to engage in a course of conduct which consists of following or, lying in wait for, or harassing, and:

(A)  serves no legitimate purpose; and

(B)  causes the would cause a reasonable person to fear for his or her physical safety or causes the would cause a reasonable person substantial emotional distress.

(2)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(3)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have a fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.

(4)  “Harassing” means a course of conduct actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats, written, telephonic, or other electronically communicated threats, vandalism, or unconsented to physical contact without consent.

(5)  “Lying in wait” means hiding or being concealed for the purpose of attacking or, harming, or scaring another person.

Sec. 5.  13 V.S.A. § 1063 is amended to read:

§ 1063.  AGGRAVATED STALKING

(a)  A person commits the crime of aggravated stalking if the person intentionally stalks another person;, and:

(1)  such conduct violates a court order that prohibits stalking and is in effect at the time of the offense; or

(2)  has been previously convicted of stalking or aggravated stalking; or

(3)  has been previously convicted of an offense an element of which involves an act of violence against the same person; or

(4)  the person being stalked is under the age of 16 years; or

(5)  had a deadly weapon, as defined in section 1021 of this title, in his or her possession while engaged in the act of stalking.

(b)  A person who commits the crime of aggravated stalking shall be imprisoned not more than five years or be fined not more than $25,000.00, or both.

(c)  Conduct constituting the offense of aggravated stalking shall be considered a violent act for the purposes of determining bail.

Sec. 6.  13 V.S.A. chapter 19, subchapter 8 is added to read:

Subchapter 8.  Orders Against Stalking

§ 1071.  DEFINITIONS

As used in this subchapter:

(1)  “Course of conduct” means a pattern of conduct composed of two or more acts over a period of time, however short, evidencing a continuity of purpose.  Constitutionally protected activity is not included within the meaning of “course of conduct.”

(2)  “Following” means maintaining over a period of time a visual or physical proximity to another person in such manner as would cause a reasonable person to have fear of unlawful sexual conduct, unlawful restraint, bodily injury, or death.

(3)  “Harassing” means actions directed at a specific person, or a member of the person’s family, which would cause a reasonable person to fear unlawful sexual conduct, unlawful restraint, bodily injury, or death, including but not limited to verbal threats; written, telephonic, or other electronically communicated threats; vandalism; or physical contact without consent. 

(4)  “Lying in wait” means hiding or being concealed for the purpose of attacking, harming, or scaring another person.

(5)  “Stalk” means to engage in a course of conduct which consists of following, lying in wait for, or harassing a person, and:

(A)  serves no legitimate purpose; and

(B)  would cause a reasonable person to fear for his or her safety or would cause a reasonable person substantial emotional distress.

§ 1072.  JURISDICTION AND VENUE

(a)  The family court shall have jurisdiction over proceedings under this subchapter.

(b)  Emergency orders under section 1074 of this title may be issued by a judge of the district, superior, or family court.

(c)  Proceedings under this subchapter may be commenced in the county in which the plaintiff resides.  If the plaintiff has left his or her residence to avoid being stalked, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

§ 1073.  REQUESTS FOR AN ORDER AGAINST STALKING

(a)  A person, other than a family or household member as defined in 15 V.S.A. § 1101(2), may seek an order against stalking by filing a complaint under this subchapter.

(b)  Except as provided in section 1074 of this title, the court shall grant the order only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant stalked the plaintiff.

(c)  If the court finds that the defendant has stalked the plaintiff and that there is a danger of further stalking, the court shall make such orders as it deems necessary to protect the plaintiff.  Such orders shall require that the defendant refrain from stalking the plaintiff and from interfering with his or her personal liberty, and may include restrictions on the defendant’s ability to contact the plaintiff by telephone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the plaintiff’s residence, or other designated locations where the plaintiff is likely to spend time.

(d)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff.  It is not necessary for the court to find that stalking has occurred during the pendency of the order to extend the terms of the order.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(e)  No filing fee shall be required.

(f)  Every order under this subchapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.

(g)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(h)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(i)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME AS PROVIDED BY 13 V.S.A. § 1078 AND MAY BE PUNISHED FOR A FIRST OFFENSE BY UP TO ONE YEAR OF IMPRISONMENT OR A FINE OF UP TO $5,000.00, OR BOTH.  For a second or subsequent offense, a person May be imprisoned UP TO three years or fined UP TO $25,000.00, or both.”

§ 1074.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Family Proceedings, a person other than a family or household member as defined in 15 V.S.A. § 1001(2) may file a complaint for a temporary order against stalking.  Such complaint shall be filed during regular court hours unless the person believes there is an immediate danger of further stalking.  The court may issue a temporary order under this subchapter ex parte, without notice to the defendant, upon motion and findings by the court that the defendant has stalked the plaintiff.  Upon a finding that there is an immediate danger of further stalking, an order may be granted requiring the defendant to refrain from stalking the plaintiff and to refrain from interfering with the plaintiff’s personal liberty.

(b)  Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.  Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order.  This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 10 days from the date of issuance of the order.  At such hearings, the plaintiff shall have the burden of proving stalking by a preponderance of the evidence.  If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other order as it deems necessary to protect the plaintiff.

(c)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(d)  Every order issued under this subchapter shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME AS PROVIDED BY 13 V.S.A. § 1078 AND MAY BE PUNISHED FOR A FIRST OFFENSE BY UP TO ONE YEAR OF IMPRISONMENT OR A FINE OF UP TO $5,000.00, OR BOTH.  For a second or subsequent offense, a person May be imprisoned UP TO three years or fined UP TO $25,000.00, or both.”

§ 1075.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this subchapter shall be served in accordance with the Vermont Rules of Family Proceedings and may be served by any sheriff, deputy sheriff, or municipal or state police officer.  Stalking orders shall be served at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse prevention orders issued pursuant to chapter 21 of Title 15.  Orders shall be served in a manner calculated to ensure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.

(b)  If service of a notice of hearing issued under section 1073 or 1074 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

§ 1076.  PROCEDURE

(a)  Except as otherwise specified in this subchapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Family Proceedings and shall be in addition to any other available civil or criminal remedies.

(b)  The court administrator shall establish procedures to ensure access to relief after regular court hours or on weekends and holidays.  The court administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to district, superior, and family courts.  Law enforcement agencies shall assist in carrying out the intent of this section.

(c)  The office of the court administrator shall ensure that the family court and the district court have procedures in place so that the contents of orders and pendency of other proceedings can be known to both courts for cases in which an order against stalking proceeding is related to a criminal proceeding.

§ 1077.   FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL; DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments, and state police district offices shall establish procedures for filing notice against stalking orders issued under this subchapter and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues a notice against stalking order under this subchapter shall transmit a copy of the order to the department of public safety’s protection order database.

§ 1078.  VIOLATION OF AN ORDER AGAINST STALKING

(a)  For a first offense, a person who violates an order issued in accordance with this subchapter shall be imprisoned not more than one year or fined not more than $5,000.00, or both.  For a second or subsequent offense, a person who violates an order issued in accordance with this subchapter shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

(b)  Upon conviction for a violation of an order issued in accordance with this subchapter, the court may order the defendant to participate in appropriate intervention programming.   The defendant shall pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.

(c)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(d)  Prosecution for violation of an order against stalking shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the order against stalking.

§ 1079.  ENFORCEMENT

Law enforcement officers are authorized to enforce orders issued under this subchapter and may rely upon a copy of any order issued under this chapter.

Sec. 7.  DESIGNATION.

13 V.S.A. chapter 72, §§ 3251-3256 are designated as subchapter 1 which is added to read:

Subchapter 1.  Offenses and Criminal Procedure

Sec. 8.  13 V.S.A. chapter 72, subchapter 3 is added to read:

Subchapter 3.  Sexual Assault Protection Orders

§ 3301.  DEFINITIONS

As used in this subchapter, “sexually assaulting the victim” means that the defendant was convicted of lewd and lascivious conduct with a child as defined in section 2602 of this title, sexual assault as defined in section 3252 of this title or aggravated sexual assault as defined in section 3253 of this title and that the plaintiff was the victim of the offense.

§ 3302.  JURISDICTION AND VENUE

(a)  The family court shall have jurisdiction over proceedings under this subchapter.

(b)  Emergency orders under section 3304 of this title may be issued by a judge of the district, superior, or family court.

(c)  Proceedings under this subchapter may be commenced in the county in which the plaintiff resides.  If the plaintiff has left his or her residence to avoid contact with the defendant, the plaintiff shall have the option to bring an action in the county of the previous residence or the county of the new residence.

§ 3303.  REQUESTS FOR A SEXUAL ASSAULT PROTECTION ORDER

(a)  A person may seek a sexual assault protection order by filing a complaint under this subchapter.

(b)  Except as provided in section 3304 of this title, the court shall grant the order only after notice to the defendant and a hearing.  The plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant was convicted of sexually assaulting the plaintiff.

(c)  If the court finds that the defendant was convicted of sexually assaulting the victim, the court shall make such orders as it deems necessary to protect the plaintiff.  Such orders shall require that the defendant refrain from interfering with the plaintiff’s liberty, and may include restrictions on the defendant’s ability to contact the plaintiff by telephone or by mail and restrictions prohibiting the defendant from coming within a fixed distance of the plaintiff, the plaintiff’s residence, or other designated locations where the plaintiff is likely to spend time.

(d)  Relief shall be granted for a fixed period, at the expiration of which time the court may extend any order, upon motion of the plaintiff, for such additional time as it deems necessary to protect the plaintiff.  The court may modify its order at any subsequent time upon motion by either party and a showing of a substantial change in circumstance.

(e)  No filing fee shall be required.

(f)  Every order under this subchapter shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.

(g)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(h)  When findings are required under this section, the court shall make either written findings of fact or oral findings of fact on the record.

(i)  Every final order issued under this section shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME AS PROVIDED BY 13 V.S.A. § 3308 AND MAY BE PUNISHED FOR A FIRST OFFENSE BY UP TO ONE YEAR OF IMPRISONMENT OR A FINE OF UP TO $5,000.00, OR BOTH.  For a second or subsequent offense, a person May be imprisoned UP TO three years or fined UP TO $25,000.00, or both.”

§ 3304.  EMERGENCY RELIEF

(a)  In accordance with the Vermont Rules of Family Proceedings, a person may file a complaint for a temporary order under this subchapter.  Such complaint shall be filed during regular court hours unless the person believes that he or she is danger of immediate physical harm.  The court may issue a temporary order under this subchapter ex parte, without notice to the defendant, upon a finding that the defendant sexually assaulted the victim as defined in section 3301 of this title, and that the plaintiff has a reasonable fear of immediate physical harm.  Such order may require the defendant to refrain from interfering with the plaintiff’s personal liberty.

(b)  Every order issued under this section shall contain the name of the court, the names of the parties, the date of the petition, and the date and time of the order and shall be signed by the judge.  Every order issued under this section shall state upon its face a date, time, and place that the defendant may appear to petition the court for modification or discharge of the order.  This opportunity to contest shall be scheduled as soon as reasonably possible, which in no event shall be more than 10 days from the date of issuance of the order.  At such hearings, the plaintiff shall have the burden of proving by a preponderance of the evidence that the defendant was convicted of sexually assaulting the plaintiff.  If the court finds that the plaintiff has met his or her burden, it shall continue the order in effect and make such other order as it deems necessary to protect the plaintiff.

(c)  Form complaints and form orders shall be provided by the court administrator and shall be maintained by the clerks of the courts.

(d)  Every order issued under this subchapter shall bear the following language:  “VIOLATION OF THIS ORDER IS A CRIME AS PROVIDED BY 13 V.S.A. § 3308 AND MAY BE PUNISHED FOR A FIRST OFFENSE BY UP TO ONE YEAR OF IMPRISONMENT OR A FINE OF UP TO $5,000.00, OR BOTH.  For a second or subsequent offense, a person May be imprisoned UP TO three years or fined UP TO $25,000.00, or both.”

§ 3305.  SERVICE

(a)  A complaint or ex parte temporary order or final order issued under this subchapter shall be served in accordance with the Vermont Rules of Family Proceedings and may be served by any sheriff, deputy sheriff, or municipal or state police officer.  Sexual assault protection orders shall be served at the earliest possible time and shall take precedence over other summonses and orders, with the exception of abuse prevention orders issued pursuant to chapter 21 of Title 15.  Orders shall be served in a manner calculated to ensure the safety of the plaintiff.  Methods of service which include advance notification to the defendant shall not be used.  The person making service shall file a return of service with the court stating the date, time, and place that the order was delivered personally to the defendant.

(b)  If service of a notice of hearing issued under section 3303 or 3304 of this title cannot be made before the scheduled hearing, the court shall continue the hearing and extend the terms of the order upon request of the plaintiff for such additional time as it deems necessary to achieve service on the defendant.

§ 3306.  PROCEDURE

(a)  Except as otherwise specified in this subchapter, proceedings commenced under this chapter shall be in accordance with the Vermont Rules of Family Proceedings and shall be in addition to any other available civil or criminal remedies.

(b)  The court administrator shall establish procedures to ensure access to relief after regular court hours or on weekends and holidays.  The court administrator is authorized to contract with public or private agencies to assist plaintiffs to seek relief and to gain access to district, superior, and family courts.  Law enforcement agencies shall assist in carrying out the intent of this section.

(c)  The office of the court administrator shall ensure that the family court and the district court have procedures in place so that the contents of orders and pendency of other proceedings can be known to both courts for cases in which a sexual assault protection order proceeding is related to a criminal proceeding.

§ 3307.   FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL; DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments, and state police district offices shall establish procedures for filing sexual assault protection orders issued under this subchapter and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues a sexual assault protection order under this subchapter shall transmit a copy of the order to the department of public safety’s protection order database.

§ 3308.  VIOLATION OF A SEXUAL ASSAULT PROTECTION ORDER

(a)  For a first offense, a person who violates an order issued in accordance with this subchapter shall be imprisoned not more than one year or fined not more than $5,000.00, or both.  For a second or subsequent offense, a person who violates an order issued in accordance with this subchapter shall be imprisoned not more than three years or fined not more than $25,000.00, or both.

(b)  Upon conviction for a violation of an order issued in accordance with this subchapter, the court may order the defendant to participate in appropriate intervention programming or sex offender treatment.  The defendant shall pay all or part of the costs of the counseling unless the court finds that the defendant is unable to do so.

(c)  Nothing in this section shall be construed to diminish the inherent authority of the courts to enforce their lawful orders through contempt proceedings.

(d)  Prosecution for violation of a sexual assault protection order shall not bar prosecution for any other crime, including any crime that may have been committed at the time of the violation of the order.

§ 3309.  ENFORCEMENT

Law enforcement officers are authorized to enforce orders issued under this subchapter and may rely upon a copy of any order issued under this chapter.

Sec. 8a.  13 V.S.A. § 5301(7) is amended to read:

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

* * *

(V)  violation of abuse prevention order as defined in section 1030 of this title, excluding violation of an abuse prevention order issued pursuant to 15 V.S.A. § 1104 (emergency relief) or 33 V.S.A. § 6936 (emergency relief), violation of an order against stalking as defined in section 1078 of this title, and violation of a sexual assault protection order as defined in section 3308 of this title;

 

Sec. 9.  15 V.S.A. § 1101(1) is amended to read:

(1)  “Abuse” means the occurrence of one or more of the following acts between family or household members:

(A)  attempting to cause or causing physical harm;

(B)  placing another in fear of imminent serious physical harm;

(C)  abuse to children as defined in subchapter 2 of chapter 49 of Title 33; or

(D)  stalking as defined in 13 V.S.A. § 1061.

Sec. 10.  15 V.S.A. § 1107 is amended to read:

§ 1107.  FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL; DEPARTMENT OF PUBLIC SAFETY RELIEF FROM ABUSE PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments and state police district offices shall establish procedures for filing abuse prevention orders issued under this chapter, chapter 69 of Title 33, and foreign abuse prevention orders and for making their personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues an abuse prevention order under section 1104 or 1103 of this chapter, or that files a foreign abuse prevention order in accordance with subsection 1108(d) of this chapter, shall transmit a copy of the order to the department of public safety relief from abuse protection order database.

Sec. 11.  33 V.S.A. § 6939 is amended to read:

§ 6939.   FILING ORDERS WITH LAW ENFORCEMENT PERSONNEL, DEPARTMENT OF PUBLIC SAFETY PROTECTION ORDER DATABASE

(a)  Police departments, sheriff’s departments and state police district offices shall establish procedures for filing orders issued under this subchapter and for making personnel aware of the existence and contents of such orders.

(b)  Any court in this state that issues an order under this subchapter shall transmit a copy of the order to the department of public safety protective order database.

Sec. 12.  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 subdivisions (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.

(e)  Subsection (d) of this section shall not be construed to limit or infringe upon defenses granted at common law.

Sec. 13.  20 V.S.A. § 1932 is amended to read:

§ 1932.  DEFINITIONS

As used in this subchapter:

* * *

(12)  “Violent Designated crime” means any of the following offenses:

(A)  assault and robbery with a dangerous weapon as defined in subsection 608(b) of Title 13 a felony;

(B)  assault and robbery causing bodily injury as defined in subsection 608(c) of Title 13;

(C)  aggravated assault as defined in section 1024 of Title 13;

(D)  murder as defined in section 2301 of Title 13;

(E)  manslaughter as defined in section 2304 of Title 13;

(F)  kidnapping as defined in section 2405 of Title 13 or its predecessor as it was defined in section 2401 of Title 13;

(G)  first degree unlawful restraint as defined in section 2407 of Title 13;

(H)  maiming as defined in section 2701 of Title 13;

(I)  first degree aggravated domestic assault as defined in section 1043 of Title 13 where the defendant causes serious bodily injury to another person;

(J)  sexual assault as defined in 13 V.S.A. §§ 3252(a)(1), (2) and (4), and 3252(b) or the predecessor offenses as defined in section 3201 of Title 13;

(K)  aggravated sexual assault as defined in section 3253 of Title 13;

(L)  lewd and lascivious conduct as defined in section 2601 of Title 13;

(M)  lewd or lascivious conduct with a child as defined in section 2602 of Title 13;

(N)  sexual activity by a caregiver with an elderly or disabled adult, as defined in 33 V.S.A. § 6913(d), where the sexual activity is exploitation as described in 33 V.S.A. § 6902(7)(D);

(O)  sexual exploitation of children as defined in 13 V.S.A. §§ 2822, 2823 and 2824;

(P)  burglary as defined in 13 V.S.A. § 1201;

(Q)  unlawful trespass of a residence as defined in 13 V.S.A. § 3705(d);

(R)  an attempt to commit any offense listed in this subdivision; or

(S)(C)  any other offense, if, as part of a plea agreement in an action in which the original charge was a crime listed in this subdivision and probable cause was found by the court, there is a requirement that the defendant submit a DNA sample to the DNA data bank.

Sec. 14.  20 V.S.A. § 1933 is amended to read:

§ 1933.  DNA SAMPLE REQUIRED

(a)  The following persons shall submit a DNA sample:

(1)  every person convicted in a court in this state of a violent designated crime on or after the effective date of this subchapter; and

(2)  every person who was convicted in a court in this state of a violent designated crime prior to the effective date of this subchapter and, after the effective date of this subchapter, is:

(A)  in the custody of the commissioner of corrections pursuant to 28 V.S.A. § 701;

(B)  on parole for a violent designated crime;

(C)  serving a supervised community sentence for a violent designated crime; and

(D)  on probation for a violent designated crime.

(b)  A person serving a sentence for a violent designated crime in a correctional facility shall have his or her DNA samples collected or taken at the receiving correctional facility, or at a place and time designated by the commissioner of corrections or by a court.

(c)  A person serving a sentence for a violent designated crime not confined to a correctional facility shall have his or her DNA samples collected or taken at a place and time designated by the commissioner of corrections, the commissioner of public safety, or a court.

Sec. 15.  20 V.S.A. § 1940 is amended to read:

§ 1940.   EXPUNGEMENT OF RECORDS AND DESTRUCTION OF SAMPLES

(a)  If a person’s conviction of a violent designated crime is reversed and the case is nolle prosequi or dismissed or the person is granted a full pardon, the court with jurisdiction or, as the case may be, the governor, shall so notify the department, and the person’s DNA record in the state DNA database and CODIS and the person’s DNA sample in the state DNA data bank shall be removed and destroyed.  The laboratory shall purge the DNA record and all other identifiable information from the state DNA database and CODIS and destroy the DNA sample stored in the state DNA data bank.  If the person has more than one entry in the state DNA database, CODIS, or the state DNA data bank, only the entry related to the dismissed case shall be deleted.  The department shall notify the person upon completing its responsibilities under this subsection, by certified mail addressed to the person’s last known address.

* * *

Sec. 16.  24 V.S.A. § 1940 is added to read:

§ 1940.   TASK FORCES; SPECIALIZED INVESTIGATIVE UNITS; BOARD; GRANTS

(a)  A task force or specialized investigative unit organized and operating under section 1938 of this title may accept, receive, and disburse in furtherance of its duties and functions any funds, grants, and services made available by the state of Vermont and its agencies, the federal government and its agencies, any municipality or other unit of local government, or private or civic sources.

(b)  A specialized investigative unit grants board is created which shall be comprised of the attorney general, the secretary of administration, the executive director of the department of state’s attorneys, the commissioner of the department of public safety, the executive director of the center for crime victim services, and the executive director of the Vermont League of Cities and Towns.  Specialized investigative units organized and operating under section 1938 of this title for the investigation of sex crimes, child abuse, elder abuse, domestic violence, or crimes against those with physical or developmental disabilities may apply to the board for a grant or grants covering the costs of salaries and employee benefits to be expended during a given year for the performance of unit duties as well as unit operating costs for rent, utilities, equipment, training, and supplies.  Grants under this section shall be approved by a majority of the entire board and shall not exceed 50 percent of the yearly salary and employee benefit costs of the unit. 

(c)  The board may adopt rules relating to grant eligibility criteria, processes for applications, awards, and reports related to grants authorized pursuant to this section.  The attorney general shall be the adopting authority.

Sec. 17.  13 V.S.A. § 5411a is amended to read:

§ 5411a.  ELECTRONIC POSTING OF THE SEX OFFENDER REGISTRY

* * *

(l)  If a sex offender’s information is required to be posted electronically pursuant to subdivision (a)(2) of this section, the department shall list the offender’s convictions for any crime listed in subdivision 5401(10) of this title, regardless of the date of the conviction or whether the offender was required to register as a sex offender based upon that conviction.

Sec. 18.  13 V.S.A. § 5412 is amended to read:

§ 5412.   ACTIVE COMMUNITY NOTIFICATION BY THE DEPARTMENT OF PUBLIC SAFETY, THE DEPARTMENT OF CORRECTIONS, AND LOCAL LAW ENFORCEMENT; IMMUNITY

(a)  The department, the department of corrections, any authorized local law enforcement agency, and their employees shall be immune from liability in carrying out the provisions under this subchapter except in instances of gross negligence or willful misconduct, provided that the agencies complied with the rules adopted pursuant to this subchapter.

(b)  Nothing in this subchapter shall be construed to prevent the The department, the department of corrections, and any authorized local law enforcement agency from notifying are authorized to notify members of the public who are likely to encounter a sex offender who poses a danger under circumstances that are not enumerated in this subchapter. 

(c)  Notification of the community beyond those persons likely to encounter a sex offender shall be authorized only under circumstances which constitute a compelling risk to public safety and only after consultation with the Vermont crime information center and the department of corrections.

(d)  Active community notification regarding registered sex offenders who may pose a danger to members of the community is an important public safety tool which the general assembly intends for authorized agencies to use at their discretion in accordance with this subchapter.

Sec. 19.  NOTICE OF AUTHORITY FOR ACTIVE COMMUNITY NOTIFICATION

(a)  When the general assembly created the sex offender registry through the adoption of No. 124 of the Acts of the 1995 Adj. Sess. (1996), it granted authority to the department of public safety, the department of corrections, and local law enforcement agencies to notify actively members of the public of any registered sex offender who might pose a danger to them in the community.  The general assembly finds that this authority has been utilized inconsistently among agencies statewide. 

(b)  In No. 157 of the Acts of the 2003 Adj. Sess. (2004), the general assembly required the department of public safety to establish and conduct, in cooperation with the department of corrections, a comprehensive training program to inform and instruct law enforcement and corrections personnel on the operation of the sex offender registry and sex offender community notification, including authority to conduct active community notification.  The general assembly appropriated $25,000.00 for the training.

(c)  Amendments in this act to 13 V.S.A. § 5412 are clarifications of existing law and intended to dispel any ambiguities as to the authority of designated agencies to notify when appropriate the public of sex offenders who are living in the community. 

(d)  The department of public safety shall send notice of the amendments to sex offender laws in this act to all law enforcement agencies in the state, and of their authority to engage in active community notification in accordance with subchapter 3 of chapter 167 of Title 13.  The department of corrections shall send notice of the amendments to sex offender laws in this act to all probation and parole officers in the state, and of their authority to engage in active community notification in accordance with subchapter 3 of chapter 167 of Title 13.  This notice shall be sent no later than September 1, 2005.

Sec. 20.  13 V.S.A. § 5411b is amended to read:

§ 5411b.  DESIGNATION OF HIGH-RISK SEX OFFENDER

* * *

(d)  The department of corrections shall identify those sex offenders under the supervision as of the date of passage of this act who are high-risk and shall designate them as such no later than November 1, 2005.

Sec. 21.  CRIMINAL CODE STUDY COMMITTEE

Subsections (c) and (d) of Sec. 293 of No. 122 of the Acts of the 2003 Adj. Sess. (2004) are amended to read:

(c)  The committee shall consist of the following members:

(1)  two three members of the senate appointed by the committee on committees, one of whom shall be the chair of the committee on judiciary;

(2)  two three members of the house of representatives appointed by the speaker, one of whom shall be the chair of the committee on judiciary;

* * *

(d)(1)  The committee shall consider the following:

* * *

(2)  The committee shall also consider whether Vermont should establish a permanent sentencing commission.  The committee shall make recommendations with regard to the mission and obligations of such a commission, the members of the commission, and the administration of the commission.

Sec. 22.  SEX OFFENDER COMMUNITY REENTRY; CIVIL COMMITMENT

(a)  The House Committee on Judiciary finds that the vast majority of convicted sex offenders eventually returns to the community, either on probation, parole, community sentence, or having reached their maximum sentence.  It is essential that policymakers determine the appropriate manner to maximize Vermont resources to have the greatest impact on public safety with regard to sex offenders. 

(b)  Testimony indicates that a very small number of dangerous sex offenders, estimated at one to two offenders a year by the department of public safety, poses a particularly high risk to community safety.  The committee recognizes the need to address not only these particularly dangerous offenders, but the return of all sex offenders to Vermont communities.

(c)  In order to address the risks that convicted sex offenders may pose in the community, the House Committee on Judiciary shall meet in the summer and fall of 2005 to continue its consideration and examination of current public safety and corrections policy regarding sexual violence and the return of sex offenders to our communities.  These meetings shall include consideration of civil commitment and other policy alternatives.  

(d)  The committee has taken considerable testimony on the option of civil commitment of sex offenders and strongly believes that more information is needed.  Proposals submitted to the committee on behalf of the administration lacked essential information regarding implementation of such a program, funding needs and resources, staffing requirements and resources, and treatment plans.  Without such details, it is impossible for the committee to determine whether such a program is the best approach to community safety and whether such a program would be constitutional as applied.

(e)  The committee shall also consider the best practices with regard to investigation, prosecution, sentencing, and prison treatment of sex offenders.  Issues shall include special prosecution units, presentence investigations, presentence risk assessment and psychosexual evaluations, enhanced criminal penalties, and successful treatment models.

(f)  The committee is authorized to meet five times during the summer and fall of 2005 and shall have the assistance and cooperation of all state and local agencies and departments.  The legislative council and the joint fiscal office shall provide professional and administrative support for the committee.

(g)  Committee members shall be entitled to per diem compensation and reimbursement for expenses in accordance with 2 V.S.A. § 406. 

(h)  The commissioner of health, commissioner of public safety, and commissioner of corrections shall jointly submit a report to the house committee on judiciary regarding the administration’s proposals for civil commitment of sex offenders.  The report shall be submitted no later than August 1, 2005. 

(i)  The report shall address the administration’s three options, including out-of-state placement, a Vermont facility-based program, and a module-based program.  The report shall address, at a minimum, the following:

(1)  Capacity.

(2)  Staffing.

(3)  Treatment.

(4)  Program and capital costs.

(j)  The report shall include findings regarding community based out-patient civil commitment and address 24-hour staff supervision of offenders, GPS monitoring, and viability of staffed halfway houses.

(k)  The report shall include findings regarding which states will accept Vermont sexually violent predators who have been civilly committed, the cost, the duration, and number of offenders.

(l)  The report shall include the impacts of dedicating a wing of an existing Vermont correctional facility, including the cost of displacing Vermont inmates to an out-of-state facility, as well as capital costs for retrofitting a designated wing for sexually violent predators.

(m)  The report shall include an analysis of the ancillary costs to the attorney general, defender general, state’s attorneys, and the judiciary in implementing a civil commitment process.

(n)  The report shall also include a cost-benefit analysis of alternative policy options.

NOTICE CALENDAR

Favorable

H. 117

An act relating to the allocation of the assets of the state teachers’ retirement system of Vermont, the Vermont state employees’ retirement system, and the Vermont municipal employees’ retirement system.

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

(Committee vote: 6-0-0)

(For House amendments, see House Journal for May 24, 2004, page 1096)

Favorable

H. 133

An act relating to the governor’s retirement funds integrity report.

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

(Committee vote: 6-0-0)

(For House amendments, see House Journal for May 24, 2005, page 1125)

Favorable

H. 134

An act relating to a legislative information technology committee.

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

(Committee vote: 6-0-0)

(For House amendments, see House Journal for April 27, 2005, page 855)

Favorable

H. 530

An act relating to amending the charter of the town of Bennington.

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

(Committee vote: 6-0-0)

(No House amendments)

Favorable with Proposal of Amendment

H. 130

An act relating to executive branch fees.

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

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

First:  By adding Secs. 3a–3d to read as follows:

Sec. 3a.  9 V.S.A. § 4217(a) and (b) are amended to read:

(a)  Upon the written application of a registered broker-dealer or an issuer and the filing of satisfactory evidence of good character, adequate means of identification and a fee of $45.00 $55.00 for each sales representative so appointed, the commissioner shall register as sales representative of such broker-dealer or issuer such natural persons as the broker-dealer or issuer may request.  No person may act at any one time as a sales representative for more than one broker-dealer or issuer.  If a person registered as a sales representative terminates association with a broker-dealer or issuer, the broker-dealer or issuer shall at once notify the commissioner of such termination.  Such registration shall cease upon termination of association.  The transfer fee for each sales representative shall be $45.00 $55.00.

(b)  Upon the written application of a registered investment adviser or a federal covered investment adviser and the filing of satisfactory evidence of good character, adequate means of identification, and a fee of $45.00 $55.00 for each investment adviser representative so appointed, the commissioner shall register as an investment adviser representative of such adviser such natural persons as the adviser may request.  An individual may transact business as an investment adviser representative for more than one investment adviser or federal covered investment adviser unless a rule adopted or an order issued under this chapter prohibits or limits an individual from acting as an investment adviser representative for more than one investment adviser or federal covered investment adviser.  If a person registered as an investment adviser representative terminates association with an adviser, the adviser shall at once notify the commissioner of such termination.  Such registration shall cease upon such termination of association.  The transfer fee for each investment adviser representative shall be $45.00 $55.00.

Sec. 3b.  9 V.S.A. § 4218 is amended to read:

§ 4218.  EXPIRATION OF REGISTRATION OR NOTICE FILING; RENEWAL FEES

The names and addresses of all persons making a notice filing with the commissioner, and all persons approved for registration as broker-dealers, sales representatives, investment advisers, and investment adviser representatives and all orders with respect thereto shall be recorded in a register maintained for such purpose and kept in the office of the commissioner which shall be open to public inspection.  All broker-dealer, branch office, sales representative, investment adviser, and investment adviser representative registrations or notice filings required pursuant to this chapter shall expire on December 31 of each year unless renewed.  Registration or notice filing renewals shall be made within the time and manner prescribed by the commissioner; otherwise they shall be treated as initial filings.  The fee for each annual renewal shall be $250.00 in the case of broker-dealers, investment advisers, and federal covered investment advisers, $100.00 for branch offices located within this state, and $45.00 $55.00 in the case of sales representatives and investment adviser representatives.

Sec. 3c.  9 V.S.A. § 4217a is added to read:

§ 4217a.  REQUEST FOR FEE WAIVERS FOR MILITARY PERSONNEL

Notwithstanding the provisions of this chapter, the commissioner may, upon written request, waive or issue a refund of fees due or paid pursuant to this chapter to military personnel who comply with all the following:

(1)  The applicant has been called or recalled to active duty status or to a status similar to active duty.

(2)  The applicant’s active duty status is expected to remain unchanged for six months or more during the calendar year for which the refund is requested.

(3)  The active duty status will prevent an applicant from acting as an agent, investment adviser representative, or investment adviser during the relevant time period.

Sec. 3d.  9 V.S.A. § 5410 is amended to read:

§ 5410.  FILING FEES

* * *

(b)  The fee for an individual is $45.00 $55.00 when filing an application for registration as an agent, $45.00 $55.00 when filing a renewal of registration as an agent, and $45.00 $55.00 when filing for a change of registration as an agent.  If the filing results in a denial or withdrawal, the commissioner shall retain the fee.

* * *

(d)  The fee for an individual is $45.00 $55.00 when filing an application for registration as an investment adviser representative, $45.00 $55.00 when filing a renewal of registration as an investment adviser representative, and  $45.00 $55.00 when filing a change of registration as an investment adviser representative.  If the filing results in a denial or withdrawal, the commissioner shall retain the fee.

* * *

(h)  Notwithstanding the provisions of this section, the commissioner may, upon written request, waive or issue a refund of fees due or paid pursuant to this chapter to military personnel who comply with all the following:

(1)  The applicant has been called or recalled to active duty status or to a status similar to active duty.

(2)  The applicant’s active duty status is expected to remain unchanged for six months or more during the calendar year for which the refund is requested; and

(3)  The active duty status will prevent the applicant from acting as an agent, investment adviser representative, or investment adviser during the relevant time period.

Second:  By striking out Secs. 10, 11, and 11a and inserting in lieu thereof new Secs. 10, 11, 11a, 11b, and 11c to read as follows:

* * * Department of Fish and Wildlife * * *

Sec. 10.  10 V.S.A. § 4132(d) and (e) are added to read:

(d)  The commissioner of fish and wildlife may develop promotional programs to include the sale of promotional items at a reasonable profit, to promote hunting, fishing, and trapping and the use of wildlife management areas.  Proceeds from the sale of promotional items shall be deposited in the fish and wildlife fund.

(e)  The commissioner, subject to the direction and approval of the secretary, shall adopt and publish regulations in the name of the agency for reasonable fees or charges for the use of the lands, roads, buildings, and other property, notwithstanding 32 V.S.A. § 603.  Fees collected for the use of fish and wildlife lands and properties shall be deposited in the fish and wildlife fund.

Sec. 11.  10 V.S.A. § 4252(12) is amended to read:

(12)  A super sport license shall entitle the holder to take fish, shoot pickerel, take wild animals pursuant to chapter 113 of this title, take deer by bow and arrow pursuant to section 4744 of this title, take deer with a muzzle loading firearm pursuant to section 4743 of this title, and take wild turkey wild animals as allowed under a combination hunting and fishing license and the following big game licenses:  archery, muzzle loader, turkey, second archery, and second muzzle loader.  The commissioner may establish procedures to encourage purchasers of a super sport license to make a stewardship donation of $10.00 to the fish and wildlife fund for the purpose of habitat improvement.

Sec. 11a.  10 V.S.A. § 4254(e) is amended to read:

(e)  The commissioner shall establish:

* * *

(9)  That each license shall clearly state that one dollar and fifty cents $1.50 of the fee for that license is a filing fee which that may be retained by the agent, except for the super sport license which shall state that $5.00 of the super sport license fee is a filing fee that may be retained by the agent.

Sec. 11b.  10 V.S.A. § 4255(a)(9) and (b)(14) are amended to read:

(a)  Vermont residents may apply for licenses on forms provided by the commissioner.  Fees for each license shall be:     

* * *

(9)  Super sport license                                            $100.00  $150.00  

(b)  Nonresidents may apply for licenses on forms provided by the commissioner.  Fees for each license shall be:  

* * *

(14)  Super sport license                                           $200.00 $250.00  

Sec. 11c.  REPEAL

Secs. 10 and 49(c) of No. 163 of the Acts of the 2003 Adj. Sess. (2004) are repealed.

Third:  By adding new Secs. 18 - 33 to read as follows:

Sec. 18.  20 V.S.A. § 1815 is amended to read:

§ 1815.  AVAILABILITY OF PHOTOGRAPHIC PRINTS OR PHOTOSTATIC COPIES

(a)  Photographic prints taken by the department of public safety or photostatic copies of investigation reports or other material on file relating to motor vehicle accidents or fires, or noncriminal or criminal investigations may be furnished to any interested person at the discretion of the commissioner.  The commissioner shall consider the interests of the department, the public, and persons associated with the record.  This section does not apply to reports or materials otherwise made confidential by law.

(1)  Photographic prints related to accidents or fire investigations shall be $5.00 $8.00 per print, and discs shall be $20.00 per disc.

Photostatic copies shall be $20.00 per report.  If the report contains audiotapes, videotapes, or discs, the fee for each audiotape, videotape, or disc shall be $20.00.  If the report exceeds 20 pages, the additional pages shall cost $0.05 per page and $0.33 per minute for staff time in excess of 30 minutes.

(2)  The commissioner of public safety is authorized to collect fees sufficient to recover the associated costs with the processing of photographic films for criminal justice agencies.  Such costs shall include the cost of materials, labor, and machine time related to the processing of films by the department.

(3)  Copies of fire investigation reports shall be $15.00 per report. If the reports contain audiotape or videotape, the fee for each audiotape or videotape shall be $15.00.

(4)  Investigation reports unrelated to fires or motor vehicle accidents may be furnished at the discretion of the commissioner when in his or her opinion the release of such material would not be detrimental to the best interests of the department.  The fee for such reports shall be $15.00.  If the reports contain audiotape or videotape, the fee for each audiotape or videotape shall be $15.00.

(5)  Officers' reports of motor vehicle accidents which do not require a report to the commissioner of motor vehicles pursuant to 23 V.S.A. § 1129 may be sold for $10.00 per report.

* * *

(c)  The commissioner of public safety is authorized to collect fees sufficient to recover the costs associated with the processing of photographic films for criminal justice agencies.  These costs shall include the cost of materials, labor, and machine time related to the processing of films by the department.

* * * Agency of Agriculture, Food and Markets * * *

Sec. 19.  6 V.S.A. § 324(b) is amended to read:

(b)  No person shall distribute in this state a commercial feed which that has not been registered pursuant to the provisions of this chapter.  Application shall be in a form and manner to be prescribed by rule of the secretary.  The application for registration of a commercial feed shall be accompanied by a registration fee of $50.00 $70.00 per product.  The registration fees, along with any surcharges collected under subsection (c) of this section, shall be deposited in the special fund created by subsection 364(e) of this title.  Funds deposited in this account shall be restricted to implementing and administering the provisions of this chapter title and any other provisions of the law relating to fertilizer, lime, or seeds.  If the secretary so requests, the application for registration shall be accompanied by a label or other printed matter describing the product.

Sec. 20.  6 V.S.A. § 364(e) is amended to read:

(e)  The registration and tonnage fees, along with any deficiency penalties collected pursuant to sections 331 and 372 of this title, shall be deposited in a special fund.  Funds deposited in this fund shall be restricted to implementing and administering the provisions of this chapter title and any other provisions of law relating to feeds and seeds.

Sec. 21.  6 V.S.A. § 918(b) is amended to read:

(b)  The registrant shall pay an annual fee of $75.00 $92.00 for each product registered which, and that amount shall be deposited in the special fund created in section 929 of this title, of which $5.00 from each product registration shall be used for an educational program related to the proper purchase, application, and disposal of household pesticides, and $5.00 from each product registration shall be used to collect and dispose of obsolete and unwanted pesticides.  The annual registration year shall be from December 1 to November 30 of the following year.

Sec. 22.  6 V.S.A. § 929(a) is amended to read:

(a)  There is hereby created a special pesticide monitoring revolving fund. Monies collected pursuant to section subsection 918(b) of this title shall be deposited in the fund.  The secretary may use monies deposited in the fund for the following purposes:

(1)  for For the purpose of monitoring pesticides, conducting pesticide educational activities, researching alternatives to the use of pesticides for pest control, and implementing pesticide reduction strategies pursuant to the provisions of 6 V.S.A. § 1110;.

(2)  to To pay salaries of full and part-time employees involved in monitoring pesticides;.

(3)  to To purchase necessary pesticide monitoring and analytical equipment;.

(4)  to To defray the cost of necessary operating expenses;.

* * *

(7)  To implement and administer the provisions of this title and any other provisions of law relating to pesticides.

* * * Victim Compensation and Child Abuse Prevention Funds

and Vital Record Fees * * *

Sec. 23.  13 V.S.A. § 7282(a) is amended to read:

(a)  In addition to any penalty or fine imposed by the court or judicial bureau for a criminal offense or any civil penalty imposed for a traffic violation, including any violation of a fish and wildlife statute or regulation, violation of a motor vehicle statute, or violation of any local ordinance relating to the operation of a motor vehicle, except violations relating to seat belts and child restraints and ordinances relating to parking violations, the clerk of the court or judicial bureau shall levy an additional fee of:

* * *

(6)  For any offense committed after June 30, 2003:

(A)  For any offense or violation committed after June 30, 2003, but before July 1, 2005, $21.00, of which $13.75 shall be deposited into a special fund account to be known as the victims’ compensation special fund, and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20; and.

(7)  For any offense or violation committed after June 30, 2005, $22.00, of which $14.75 shall be deposited into the victims’ compensation special fund and $2.25 shall be deposited into the criminal justice training council special fund established in section 2363 of Title 20.

(B)(8)  For any offense or violation committed after June 30, 2003, an amount equal to 15 percent of the fine imposed for the offense, rounded upward to the nearest whole dollar, which shall be deposited into the crime victims’ restitution special fund established by section 5363 of this title.

Sec. 24.  32 V.S.A. § 1712 is amended to read:

§ 1712.  TOWN CLERKS

Town clerks shall receive the following fees in the matter of vital registration:

(1)  For issuing and recording a marriage or civil union license, $23.00 $34.00, and after June 30, 2006, $45.00, to be paid by the applicant, $8.00 of which sum shall be retained by the town clerk as a fee and $15.00 of which sum , the remainder of the fee collected shall be paid by the town clerk to the state treasurer in a return filed quarterly upon forms furnished by the state treasurer and specifying all fees received by him or her during the quarter.  Of the amount paid to the state treasurer, $11.00, and after June 30, 2006, $22.00 shall be deposited into the domestic and sexual violence victim services special fund.  Such quarterly period shall be as of the first day of January, April, July, and October.

* * *

(5)  $7.00 $9.50 for each certified copy of birth, death, civil union, or marriage certificate.

(6)  $15.00 for each certified copy of a birth certificate, $5.00 of which shall be deposited into the child abuse prevention special fund.

Sec. 25.  32 V.S.A. § 1715 is amended to read:

§ 1715.  VITAL RECORDS SEARCH

(a)  Upon payment of a $9.50 fee, the commissioner of health or the commissioner of buildings and general services shall provide certified copies of vital records or shall ascertain and certify what the vital records available to the commissioners show, except that the commissioners shall not copy the word “illegitimate” from any birth certificate furnished.  The fee for a copy of a birth certificate shall be $15.00.  The fee for the search of the vital records is $3.00 which is credited toward the fee for the first certified copy based upon the search.

(b)  Fees From the fee collected for a certified copy of a birth certificate, $5.00 shall be deposited into the child abuse prevention special fund.  The remainder of that fee and the other fees collected under this section shall be credited to special funds established and managed pursuant to chapter 7, subchapter 5 of this title, and shall be available to the charging departments to offset the costs of providing those services.

Sec. 26.  33 V.S.A. § 4903 is amended to read:

§ 4903.  RESPONSIBILITY OF DEPARTMENT

The department may expend, within amounts available for the purposes, what is necessary to protect and promote the welfare of children and adults in this state, including the strengthening of their homes whenever possible, by:

* * *

(7)  Administering the child abuse prevention special fund created in section 4904 of this title to support the activities and program of prevent child abuse Vermont.

Sec. 27.  33 V.S.A. § 4904 is added to read:

§ 4904.  CHILD ABUSE PREVENTION SPECIAL FUND

(a)  The child abuse prevention special fund is established in the state treasury pursuant to subchapter 5 of chapter 7 of Title 32.  The fund shall be administered by the department for children and families and shall be used to support the activities and programs of prevent child abuse Vermont, particularly the activities and programs designed to prevent injuries and death that result from shaking babies and young children.

(b)  The fund shall consist of gifts, donations, fees for copies of birth certificates collected by the town clerks, the department of health, and the department of buildings and general services designated for deposit into this fund pursuant to 32 V.S.A. §§ 1712(6) and 1715(b), and appropriations by the general assembly.

Sec. 28.  13 V.S.A. § 5360 is added to read:

§ 5360.  DOMESTIC AND SEXUAL VIOLENCE VICTIM SERVICES SPECIAL FUND

(a)  The domestic and sexual violence victim services special fund is established in the state treasury pursuant to subchapter 5 of chapter 7 of Title 32.  The fund shall be administered by the Vermont center for crime victim services.  The purpose of this fund is to support the activities and pay operating costs of the programs of the Vermont network against domestic and sexual violence.

(b)  The fund will consist of gifts, donations, fees collected by the town clerk and designated for deposit into this fund pursuant to 32 V.S.A. § 1712(1), and appropriations by the general assembly.

Sec. 29.  13 V.S.A. § 5361(a) is amended to read:

(a)  The center for crime victims services is created and shall be responsible for to do all the following:

* * *

(7)  Administer the domestic and sexual violence victim services special fund.

* * *Department of Environmental Conservation* * *

Sec. 30.  LEGISLATIVE INTENT

It is the intent of the general assembly that aquatic nuisance control stickers issued by the secretary of natural resources in accordance with this act be marketed as a voluntary program for those who wish to increase public awareness of the state’s interest in controlling aquatic nuisances, and that the stickers not be in any way sold as, or implied to be, required or mandatory.

Sec. 31.  10 V.S.A. § 924 is added to read:

§ 924.  AQUATIC NUISANCE CONTROL STICKER PROGRAM; AQUATIC NUISANCE CONTROL SPECIAL FUND CREATION

(a)  The department of environmental conservation may develop an aquatic nuisance control sticker for voluntary mounting on motorboats, personal watercraft, paddlecraft, or other vehicles or areas of display.  The department, as part of any program developed under this section, shall select a graphic design or designs for the sticker that will enhance the public awareness of the state’s interest in controlling aquatic nuisance species.

(b)  The commissioner of environmental conservation shall have the authority to sell and distribute the stickers.  The charge for an individual aquatic nuisance control sticker sold by any person shall be $10.00.  The department is authorized to sell stickers at a cost of $9.00 per sticker if sold for resale.  The department of environmental conservation shall use monies collected under this section and any gifts, grants, or contributions received by the department for the purpose of aquatic nuisance control to implement the programs authorized by this section and sections 921, 922, and 923 of this title.

(c)  The aquatic nuisance control special fund is established in the state treasury pursuant to subchapter 5 of chapter 7 of Title 32.  The fund shall be administered by the department of environmental conservation to implement programs authorized by this section and sections 921, 922, and 923 of this title.   The fund shall consist of gifts, donations, fees collected by the department for aquatic nuisance stickers, and appropriations by the general assembly.

Sec. 32.  REPORT TO THE GENERAL ASSEMBLY

The department of environmental conservation shall provide an accounting of the revenue raised by the aquatic nuisance sticker program established under 10 V.S.A. § 924 every three years at the time the agency of natural resources is required to report all fees to the general assembly pursuant to 32 V.S.A. § 605. 

* * * Effective Dates * * *

Sec. 33.  EFFECTIVE DATE

This act shall take effect on July 1, 2005, except that:

(1)  Sec. 3d shall take effect on July 1, 2006.

(2)  10 V.S.A. § 4132(e) in Sec. 10 shall take effect on January 1, 2006.

(Committee Vote: 4-2-1)

(For House amendments, see House Journal for February 4, 2005, page 146.)

H. 521

An act relating to miscellaneous tax amendments.

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

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

First:  In Sec. 3, and in Sec. 4, after the words “House Committee on Ways and Means” by inserting the words: and Senate Committee on Finance

Second:  In Sec. 4, in the first sentence, by striking out the words “In order to take a reasoned action on changing the structure of Vermont net operating loss law, the House Committee on Ways and Means requests that the Joint Fiscal Office and the Department of Taxes study the possible effects of” and inserting in lieu thereof the following words: The Department of Taxes, with the assistance of the Joint Fiscal Office, shall study the possible effects of

Third:  In Sec. 6, in 32 V.S.A. §3481, subdivision (1), by striking out the third sentence in its entirety and inserting in lieu thereof the following:

Those elements shall include a consideration of a decrease in value in non-residential property due to a housing subsidy covenant as defined in section 610 of Title 27, or the effect of any state or local law or regulation affecting the use of land, including but not limited to chapter 151 of Title 10 or any land capability plan established in furtherance or implementation thereof, rules adopted by the state board of health and any local or regional zoning ordinances or development plans.

Fourth:  By adding Secs. 12 through 17 to read:

Sec. 12.  32 V.S.A. § 5406(c) is amended to read:

(c)  If the director of property valuation and review certifies that a municipality has completed a townwide reappraisal, the common level of appraisal for that municipality shall be equal to its new grand list value divided by its most recent equalized grand list value, for purposes of determining education property tax rates, education property tax liabilities, and income sensitivity claims relating to the fiscal year designated by the director.

Sec. 13.  32 V.S.A. § 9819(d)(2) is amended to read:

(2)  The board shall review the joint application.  If the project meets the requirements of this section and the requested allocation does not exceed the statutory limit set by this section, the board shall approve the application and forward it to the commissioner of taxes who may authorize an allocation up to the approved amount.  Fifty percent of the authorized allocation shall be paid to the municipality upon commencement of when construction is 50 percent complete as determined by the board, and the balance shall be paid after completion of the project.

Sec. 14.  Sec. 15(d) of No. 14 of the Acts of 2005 is amended to read:

            (d)  Sec. 9 (simplification of designated downtown sales tax allocation formula) shall take effect with respect to applications submitted after July June 1, 2005.

Sec. 15.  32 V.S.A. § 5822(d) is amended to read:

(d)  A taxpayer shall be entitled to a credit against the tax imposed under this section of 24 percent of each of the credits allowed against the taxpayer’s federal income tax for the taxable year as follows:  retirement income credit elderly and permanently totally disabled credit, investment tax credit, and child care and dependent care credits.

Sec. 16.  REPEAL

Effective upon passage, 32 V.S.A. §§ 5926 (expired credit for new jobs in a development zone), 5927, and 5928 (expired research and development credit) are repealed.

Sec. 17.  EFFECTIVE DATES

            This section and Secs. 12 through 16 of this act (technical changes) shall take effect upon passage.

Fifth:  By adding Secs. 18, 19, and 20 to read:

Sec. 18.  10 V.S.A. § 611(b), (c), (d), (e), (g), and (h) are amended to read:

(b)  The agency shall consist of seven nine commissioners, including ex officio the commissioner of banking, insurance, securities, and health care administration, the state treasurer, the secretary of commerce and community development, the executive director of the Vermont housing and conservation board or their designees, and four five commissioners, who shall be residents of the state, and who shall in the opinion of the governor with consideration of statewide geographic representation be knowledgeable in housing, finance, and financial planning or other related areas, to be appointed by the governor with the advice and consent of the senate for terms of four years.  The terms of the four commissioners initially appointed by the governor, however, shall end on the first day of February in 1975, 1976, 1977 and 1978.  Any vacancies in the membership of the agency shall be filled in like manner but only for the remainder of an unexpired term.  Each commissioner shall hold office for the term of his or her appointment and until his or her successor is appointed and qualified.  A commissioner appointed by the governor may be removed from office by the governor for misfeasance, malfeasance, or willful neglect of duty or other cause after notice and public hearing unless such notice or hearing is expressly waived in writing.

(c)  The governor shall designate annually a chairman chair of the agency from among the commissioners.  The commissioners shall elect from among their number a vice-chairman vice chair annually and such other officers as they may determine.  Meetings shall be held at the call of the chairman chair or whenever two commissioners so request.  Four Five commissioners of the agency shall constitute a quorum, and any action taken by the agency under the provisions of this chapter may be authorized by resolution approved by a majority but not less than three four of the commissioners present at any regular or special meeting.  Resolutions of the agency shall be made available to the public.  No vacancy in the membership of the agency shall impair the right of a quorum to exercise all the rights and perform all the duties of the agency.

(d)  Commissioners other than ex officio members shall receive $30.00 per day compensation authorized under section 1010 of Title 32 for each day spent in the performance of their duties and each such commissioner shall be reimbursed from the funds of the agency for his or her reasonable expenses incurred in carrying out his or her duties under this chapter.

(e)  Notwithstanding the provisions of any other law, no officer or employee of this state shall be deemed to have forfeited or shall forfeit his or her office or employment by reason of his or her acceptance of membership of the agency or his or her service thereto.

(g)  The secretary shall keep a record of the proceedings of the agency and shall be custodian of all books, documents and papers filed with the agency and of its minute book and seal.  He The secretary shall have authority to cause to be made copies of all minutes and other records and documents of the agency and to give certificates under the seal of the agency to the effect that the copies are true copies and all persons dealing with the agency may rely upon those certificates.

(h)  Before entering into his or her duties, each commissioner of the agency shall take and subscribe an oath to perform the duties of his or her office faithfully, impartially, and justly to the best of his or her ability.  A record of the oath shall be filed in the office of the secretary of state.

Sec. 19.  10 V.S.A. § 631(k) is added to read:

(k)  Interest rate exchange agreements.  The agency may enter into one or more agreements for the exchange of interest rates, cash flows, or payments to reduce net borrowing costs, achieve desirable net effective interest rates in connection with its issuance and sale of debt obligations and to provide for an efficient means of debt management.

Sec. 20.  10 V.S.A. § 637 is amended to read:

§ 637.  SOVEREIGN IMMUNITY, CREDIT OF STATE NOT PLEDGED

The agency shall have the benefit of sovereign immunity to the same extent as the state of VermontCommissioners, officers, employees, and the executive director of the agency shall be deemed employees of the state for purposes of 12 V.S.A. chapter 189 (tort claims against state) and 3 V.S.A. chapter 29 (claims against state employees).  Notwithstanding the foregoing, obligations issued under the provisions of this chapter shall not be deemed to constitute a debt or liability or obligation of the state or of any political subdivision thereof or a pledge of the faith and credit of the state or of any political subdivision but shall be payable solely from the revenues or assets of the agency.  Each obligation issued under this chapter shall contain on the face thereof a statement to the effect that the agency shall not be obligated to pay the same nor the interest thereon except from the revenues or assets pledged therefor and that neither the faith and credit nor the taxing power of the state or of any political subdivision thereof is pledged to the payment of the principal of or the interest on such obligations.

Sixth:  By adding Secs. 21 through 24 to read:

Sec. 21.  32 V.S.A. § 9701 is amended to read:

§ 9701.  DEFINITIONS

Unless the context in which they occur requires otherwise, the following terms when used in this chapter mean:

* * *

(19)  Telecommunications service:  means intrastate and interstate telecommunications services as defined in 30 V.S.A. § 7501. the electronic transmission, conveyance, or routing of voice, data, audio, video, or any other information or signals to a point, or between or among points.  The term “telecommunications service” includes such transmission, conveyance, or routing in which computer processing applications are used to act on the form, code, or protocol of the content for purposes of transmission, conveyance, or routing without regard to whether such service is referred to as voice‑over internet protocol services or is classified by the Federal Communications Commission as enhanced or value added.  Telecommunications service does not include:

(A)  Data processing and information services that allow data to be generated, acquired, stored, processed, or retrieved and delivered by an electronic transmission to a purchaser where such purchaser’s primary purpose for the underlying transaction is the processed data or information;

(B)  Installation or maintenance of wiring or equipment on a customer’s premises;

(C)  Tangible personal property;

(D)  Advertising, including but not limited to directory advertising;

(E)  Billing and collection services provided to third parties;

(F)  Internet access service;

(G)  Radio and television audio and video programming services, regardless of the medium, including the furnishing of transmission, conveyance, and routing of such services by the programming service provider. Radio and television audio and video programming services shall include but not be limited to cable service as defined in 47 U.S.C. § 522(6) and audio and video programming services delivered by commercial mobile radio service providers, as defined in 47 C.F.R. § 20.3;

(H)  Ancillary services; or

(I)  Digital products delivered electronically, including but not limited to software, music, video, reading materials, or ring tones.

* * *

(38)  Paging service:  means a telecommunications service that provides transmission of coded radio signals for the purpose of activating specific pagers; such transmissions may include messages and/or sounds.

(39)  Private communications service:  means a telecommunications service that entitles the customer to exclusive or priority use of a communications channel or group of channels between or among termination points, regardless of the manner in which such channel or channels are connected, and includes switching capacity, extension lines, stations, and any other associated services that are provided in connection with the use of such channel or channels.

(40)  Value-added non-voice data service:  means a service that otherwise meets the definition of telecommunications service in which computer processing applications are used to act on the form, content, code, or protocol of the information or data primarily for a purpose other than transmission, conveyance, or routing.

(41)  Coin-operated telephone service:  means a telecommunications service paid for by inserting money into a telephone accepting direct deposits of money to operate.

(42)  Ancillary services:  means services that are associated with or incidental to the provision of telecommunications services, including but not limited to detailed telecommunications billing, directory assistance, vertical service, and voice mail services.

(43) Telecommunication nonrecurring charges: means an amount billed for the installation, connection, change or initiation of telecommunications service received by the customer.

(44) Directory assistance: means an ancillary service of providing telephone number information, or address information, or both.

Sec. 22.  32 V.S.A. § 9741 is amended to read:

§ 9741.  SALES NOT COVERED

Retail sales and use of the following shall be exempt from the tax on retail sales imposed under section 9771 of this title and the use tax imposed under section 9773 of this title.

* * *

(42)  Charges paid by inserting coins in coin-operated telecommunications service devices.

Sec. 23.  32 V.S.A. § 9771 is amended to read:

§ 9771.  IMPOSITION OF SALES TAX

Except as otherwise provided in this chapter, there is imposed a tax on retail sales in this state.  The tax shall be paid at the rate of six percent of the sales price charged for the following:

* * *

(5)  Telecommunications service except coin-operated telephone service, paging service, private communications service, or value-added non-voice data service.

(6)  Prepaid telephone calling cards or prepaid telephone authorization numbers; or the reathorization of prepaid telephone calling cards or prepaid telephone authorization numbers. Directory assistance.

(7)  Tangible personal property to an advertising agency for its use in providing advertising services or creating advertising materials for transfer in conjunction with the delivery of advertising services.

Sec. 24.  32 V.S.A. § 9701(4) is amended to read:

(4)(A)  Sales price: means the total amount of consideration, including cash, credit, property, and services, for which personal property or services are sold, leased or rented, valued in money, whether received in money or otherwise, without deduction for the following:

* * *

(v)  The value of exempt personal property given to the purchaser where taxable and exempt personal property have been bundled together and sold by the seller as a single product or piece of merchandise; and including consideration received by the seller from third parties if:

(I)  The seller actually receives consideration from a party other than the purchaser and the consideration is directly related to a price reduction or discount on the sale;

(II)  The seller has an obligation to pass the price reduction or discount through to the purchaser;

(III)  The amount of the consideration attributable to the sale is fixed and determinable by the seller at the time of the sale of the item to the purchaser; and

(IV)  One of the following criteria is met:

(aa)  The purchaser presents a coupon, certificate, or other documentation to the seller to claim a price reduction or discount where the coupon, certificate, or documentation is authorized, distributed, or granted by a third party with the understanding that the third party will reimburse any seller to whom the coupon, certificate, or documentation is presented;

(bb)  The purchaser identifies himself or herself to the seller as a member of a group or organization entitled to a price reduction or discount (a “preferred customer” card that is available to any patron does not constitute membership in such a group); or

(cc)  The price reduction or discount is identified as a third party price reduction or discount on the invoice received by the purchaser or on a coupon, certificate, or other documentation presented by the purchaser.

* * *

            (B)  Sales price shall not include:

* * *

(iv) Installation charges; and

(v) Credit for any trade-in.  ; and

(vi)  Telecommunications nonrecurring charges.

Sec. 25.  EFFECTIVE DATES AND TRANSITION RULE

(a)  Secs. 21, 22 and 23 of this act (sales tax changes) shall take effect July 1, 2005.

(b)  Sec. 24 of this act (sales tax definition of “sales price”) shall take effect on the first day of the second quarter following the date of Vermont’s membership in the multistate streamlined sales and use tax agreement, but no earlier than July 1, 2005.

(c)  Telecommunications nonrecurring charges as defined in Sec. 21 of this act shall be exempt from the sales and use tax beginning July 1, 2005.

Seventh:  By adding Secs. 26 and 27 to read:

Sec. 26.  23 V.S.A. § 3002(11), (12) and (13) are added to read:

(11)  “Qualified biodiesel blend” means a blend of fuel containing at least five percent ethanol or 20 percent biodiesel fuel.

(12)  “Biodiesel fuel” means a renewable, biodegradable, mono alkyl ester combustible liquid fuel derived from waste vegetable oil, agricultural plant oil, or animal fat, which meets the American Society for Testing and Materials (ASTM) Specification D6751-02 for Biodiesel Fuel (B100) Blend Stock for Distillate Fuels.

(13)  “Ethanol” means fermentation ethyl alcohol derived from agricultural products, including potatoes, cereal, grains, cheese whey, and sugar beets; forest products; or other renewable resources, including residue and waste generated from the production, processing, and marketing of agricultural products, forest products, and other renewable resources, that:

(A)  meets all of the specifications in ASTM specification D 4806-88; and

(B)  is denatured as specified in 27 C.F.R. parts 20 and 21.

Sec. 27.  23  V.S.A. § 3003(a) is amended to read:

(a) A tax of 25 cents per gallon and a fee of one cent per gallon, as established pursuant to the provisions of 10 V.S.A. § 1942, is imposed on each gallon of fuel, other than qualified biodiesel blend fuel established pursuant to the provisions of 10 V.S.A. § 1942:

(1) sold or delivered by a distributor; or

(2) used by a user.

Eighth:  By striking out Secs. 9 and 10 and subsection 11(j) and inserting in lieu thereof new Secs. 9 and 10 and subsection 11(j) to read:

Sec. 9.  24 V.S.A. § 138(a) is amended to read:

(a)  Local option taxes are authorized under this section for the purpose of affording municipalities an alternative method of raising municipal revenues. to facilitate the transition and reduce the dislocations in those municipalities that may be caused by reforms to the method of financing public education under the Equal Educational Opportunity Act of 1997. Accordingly:

(1)  the local option taxes authorized under this section may be imposed by a municipality only during calendar years 1999 through 2008;

(2)  a municipality opting to impose a local option tax may do so prior to July 1, 1998 to be effective beginning January 1, 1999, and anytime after December 1, 1998 a local option tax shall be effective beginning on the next tax quarter following 30 days' notice to the department of taxes of the imposition; and all authority to opt to impose a local option tax under this section shall terminate September 1, 2007, and all authority to impose a local option tax shall terminate on December 31, 2008; and

(3)  a local option tax may only be adopted by a municipality in which:

(A)  the education property tax rate in 1997 was less than $1.10 per $100.00 of equalized education property value; or

(B)  the equalized grand list value of personal property, business machinery, inventory, and equipment is at least ten percent of the equalized education grand list as reported in the 1998 Annual Report of the Division of Property Valuation and Review; or

(C)  the combined education tax rate of the municipality will increase by 20 percent or more in fiscal year 1999 or in fiscal year 2000 over the rate of the combined education property tax in the previous fiscal year For any municipality which imposes a local option tax under this section, the tax shall be effective beginning with the next tax quarter following 90 days’ notice to the department of taxes of the imposition.

Sec. 10.  REPEAL

            Sec 15 of No. 152 of the Acts of the 2003 Adj. Sess. (2004) (changing notice period for a municipality which opts to impose local taxes) is repealed, effective upon passage of this act.

Sec. 11.  EFFECTIVE DATES

            (j)  Secs. 9 and 10 of this act (authority to opt for certain local taxes extended to all municipalities) shall take effect upon passage.

            Ninth:  By adding Secs. 28 and 29 to read:

Sec. 28.  32 V.S.A. § 312 is added to read:

§ 312.  TAX EXPENDITURE REPORT

     (a)  For purposes of this section, “tax expenditure” shall mean the actual or estimated loss in tax revenue resulting from any exemption, exclusion, deduction, or credit applicable to the tax.

     (b)  Tax expenditure reports.  Biennially, as part of the budget process, beginning January 15, 2009, the department of taxes shall file with the House Committees on Ways and Means and Appropriations and the Senate Committees on Finance and Appropriations a report on tax expenditures in the personal and corporate income, sales and use, and meals and rooms tax returns, and education property tax grand lists.  The report shall also include, for each tax expenditure, the following information:

          (1)  A description of the tax expenditure.

          (2)  The most recent fiscal information available on the direct cost of the tax expenditure in the past two years.

          (3)  The date of enactment of the expenditure.

          (4) A description of and estimate of the number of taxpayers directly benefiting from the expenditure provision.

Sec. 29.  TRANSITION REPORTS

     (a)  The department of taxes shall file with the House Committees on Ways and Means and Appropriations, and to the Senate Committees on Finance and Appropriations reports on the following:

          (1)  By January 15, 2006, tax expenditures reported under the personal and corporate income tax with the information required by 32 V.S.A. § 312 for the most recent fiscal year available.

          (2)  By January 15, 2007, tax expenditures reported under the personal and corporate income tax and sales and use tax, with the information required by 32 V.S.A. § 312 for the most recent fiscal year available.

          (3)  By January 15, 2008, tax expenditures reported under the personal and corporate income tax, sales and use tax,  meals and rooms tax, and education property tax, with the information required by 32 V.S.A. § 312 for the most recent fiscal year available.

     (b)  The department of taxes shall advise the Joint Fiscal Committee at its September meeting in 2005, 2006, and 2007, on the status of the department’s research in preparation for the report due the following January under subsection (a) of this section.

(Committee Vote: 6-0-1)

(No House amendments.)

House Proposal of Amendment

S. 171

An act relating to agricultural water quality.

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

Sec. 1.  6 V.S.A. § 4810 is amended to read:

§ 4810.  AUTHORITY; COOPERATION; COORDINATION

(a)  Agricultural land use practices.  In accordance with 10 V.S.A. § 1259(i), the secretary shall adopt by rule, pursuant to chapter 25 of Title 3, and shall implement and enforce agricultural land use practices in order to reduce the amount of agricultural pollutants entering the waters of the state.  These agricultural land use practices shall be created in two categories, pursuant to subdivisions (1) and (2) of this subsection.

(1)  “Accepted Agricultural Practices” (AAPs) shall be standards to be followed in conducting agricultural activities in this state.  These standards shall address activities which have a potential for causing pollutants to enter the groundwater and waters of this the state, including dairy and other livestock operations plus all forms of crop and nursery operations.  The AAPs shall include, as well as promote and encourage, practices for farmers in preventing pollutants from entering the groundwater and waters of the state when engaged in, but not limited to, animal waste management and disposal, soil amendment applications, plant fertilization, and pest and weed control.  Persons engaged in farming, as defined in section 6001 of Title 10, who follow these practices shall be presumed to be in compliance with water quality standards.  AAPs shall be practical and cost effective to implement.  The AAPs for groundwater shall include a process under which the agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner.  The AAPs for groundwater, as they relate to a waste storage facility, shall be suspended for a farm with a waste storage facility subject to the requirements of subsection 4815(b) of this title when the secretary lacks adequate funds for cost assistance under subsection 4826(b) of this title.

* * *

(b)  Cooperation and coordination.  The secretary of agriculture, food and markets shall coordinate with the secretary of natural resources in implementing and enforcing programs, plans and practices developed for reducing and eliminating agricultural non-point source pollutants and discharges from concentrated animal feeding operations.  The secretary of agriculture, food and markets and the secretary of natural resources shall develop a memorandum of understanding for the non‑point program describing program administration, grant negotiation, grant sharing and how they will coordinate watershed planning activities to comply with Public Law 92-500.  The secretary of agriculture, food and markets and the secretary of the agency of natural resources shall also develop a memorandum of understanding according to the public notice and comment process of subsection 1259(i) of Title 10 regarding the implementation of the federal concentrated animal feeding operation program and the relationship between the requirements of the federal program and the state agricultural water quality requirements for large, medium, and small farms under chapter 215 of this title.  The memorandum of understanding shall describe program administration, permit issuance, an appellate process, and enforcement authority and implementation.  The memorandum of understanding shall be consistent with the federal National Pollutant Discharge Elimination System permit regulations for discharges from concentrated animal feeding operations.  The allocation of duties under this chapter between the secretary of agriculture, food and markets and the secretary of natural resources shall be consistent with the secretary’s duties, established under the provisions of section subsection 1258(b) of Title 10, to comply with Public Law 92-500.  The secretary of natural resources shall be the state lead person in applying for federal funds under Public Law 92-500, but shall consult with the secretary of agriculture, food and markets during the process.  The agricultural non-point source program may compete with other programs for competitive watershed projects funded from federal funds.  The secretary of agriculture, food and markets shall be represented in reviewing these projects for funding.  Actions by the secretary of agriculture, food and markets under this chapter concerning agricultural non-point source pollution shall be consistent with the water quality standards and water pollution control requirements of chapter 47 of Title 10 and the federal Clean Water Act as amended.

Sec. 2.  6 V.S.A. § 4812 is amended to read:

§ 4812.  CORRECTIVE ACTIONS

(a)  When the secretary of agriculture, food and markets determines that a person engaged in farming is managing a farm using practices which are inconsistent with practices defined by rules under this chapter subchapter, the secretary may issue a written warning which shall be served in person or by certified mail, return receipt requested.  The warning shall include a brief description of the alleged violation, identification of this statute and applicable rules, a recommendation for corrective actions that may be taken by the person, along with a summary of federal and state assistance programs which may be utilized by the person to remedy the violation and a request for an abatement schedule from the person according to which the practice shall be altered.  The person shall have 30 days to respond to the written warning.  If the person fails to respond to the written warning within this period or to take corrective action to change the practices in order to protect water quality, the secretary may act pursuant to subsection (b) of this section in order to protect water quality.

(b)  After an opportunity for a hearing, the secretary may issue cease and desist orders and institute appropriate proceedings on behalf of the agency to enforce this chapter subchapter.

(c)  Whenever the secretary believes that any person engaged in farming is in violation of this chapter subchapter, an action may be brought in the name of the agency in a court of competent jurisdiction to restrain by temporary or permanent injunction the continuation or repetition of the violation.  The court may issue temporary or permanent injunctions, and other relief as may be necessary and appropriate to curtail any violations.

(c)(d)  The secretary may assess administrative penalties in accordance with sections 15, 16, and 17 of this title against any farmer who violates a cease and desist order or other order issued under subsection (b) of this section.

(d)(e)  Any person subject to an enforcement order or an administrative penalty who is aggrieved by the final decision of the secretary may appeal to the superior court within 30 days of the decision.  The environmental judge shall be a specially assigned superior court judge for the purpose of hearing the appeal The administrative judge may specially assign an environmental judge to superior court for the purpose of hearing an appeal.

Sec. 3.  6 V.S.A. § 4813(b) is amended to read:

(b)  Any person engaged in farming that has been required by the secretary of agriculture, food and markets to implement best management practices or any person who has petitioned the secretary of agriculture, food and markets under subsection (a) of this section may appeal the secretary of agriculture, food and market’s decision to the water resources board environmental court de novo.

Sec. 4.  6 V.S.A. § 4815 is added to read:

§ 4815.  WASTE STORAGE FACILITY

(a)  No person shall construct a new waste storage facility or expand or modify a waste storage facility in existence on July 1, 2006 unless the facility meets the standard established for such facilities by the Natural Resources Conservation Service of the U.S. Department of Agriculture or an equivalent standard.  If an equivalent design standard is used, the design and construction shall be certified by the secretary of agriculture, food and markets or a licensed professional engineer operating within the scope of his or her expertise.

(b)  The secretary may require the owner or operator of a waste storage facility in existence on July 1, 2006, to modify the facility to meet the standard set forth in subsection (a) of this section if the facility poses a threat to human health or environment as established by a violation of the state groundwater protection standards.  If the secretary determines that a facility that meets the standard set forth in subsection (a) of this section poses a threat to human health or the environment, the secretary may require the owner or operator of the facility to implement additional management measures.  The costs of initial groundwater monitoring conducted to determine if a facility poses a threat to human health or the environment shall be paid by the secretary.  Within 21 days of a determination under this subsection that a facility poses a threat to human health or the environment, the secretary of agriculture, food and markets shall notify the department of health and the secretary of natural resources of the location of the facility and the name of its owner or operator.

(c)  For purposes of this section, “waste storage facility” means an impoundment made for the purpose of storing agricultural waste by constructing an embankment, excavating a pit or dugout, fabricating an

in-ground or above-ground structure, or any combination thereof.  This section does not apply to concrete slabs used for agricultural waste management.

Sec. 5.  6 V.S.A. § 4826 is added to read:

§ 4826.  COST ASSISTANCE FOR WASTE STORAGE FACILITIES

(a)  The owner or operator of a farm required under section 4815 of this title to design, construct, or modify a waste storage facility may apply in writing to the secretary of agriculture, food and markets for cost assistance.  Using state or federal funds or both, a state assistance grant shall be awarded, subject to the availability of funds, to applicants.  Such grants shall not exceed 85 percent of the cost of an adequately sized and designed waste storage facility and the equipment eligible for Natural Resources Conservation Service cost share assistance.  Application for a state assistance grant shall be made in the manner prescribed by the secretary.  For purposes of this section, “waste storage facility” means an impoundment made for the purpose of storing agricultural waste by constructing an embankment, excavating a pit or dugout, fabricating an in-ground or above-ground structure, or any combination thereof.  This section does not apply to concrete slabs used for agricultural waste management.

(b)  If the secretary lacks adequate funds necessary for the cost assistance awards required by subsection (a) of this section, the design and construction requirements for waste storage facilities under subsection 4815(b) of this title shall be suspended until adequate funding becomes available.  Suspension of the design and construction requirements of subsection 4815(b) of this title does not relieve an owner or operator of a farm permitted under section 4858 of this title from the remaining requirements of the owner’s or operator’s permit, including discharge standards, groundwater protection, nutrient management planning, and land application of manure.  This subsection does not apply to farms permitted under section 1263 of Title 10 or farms permitted under section 4851 of this title.

Sec. 6.  6 V.S.A. § 4827 is added to read:

§ 4827.  NUTRIENT MANAGEMENT PLANNING; INCENTIVE GRANTS

(a)  A farm developing or implementing a nutrient management plan under chapter 215 of this title or federal regulations may apply to the secretary of agriculture, food and markets for financial assistance.  The financial assistance shall be in the form of incentive grants.  Annually, after consultation with the U.S. Department of Agriculture Natural Resources Conservation Service and others, the secretary shall determine the average cost of developing and implementing a nutrient management plan in Vermont.  The dollar amount of an incentive grant awarded under this section shall be equal to the average cost of developing a nutrient management plan as determined by the secretary or the cost of complying with the nutrient management planning requirements of chapter 215 of this title or federal regulations, whichever is less.

(b)  Application for a state assistance grant shall be made in a manner prescribed by the secretary and shall include, at a minimum:

(1)  an estimated cost of developing and implementing a nutrient management plan for the applicant;

(2)  the amount of incentive grant requested; and

(3)  a schedule for development and implementation of the nutrient management plan.

(c)  The secretary annually shall prepare a list of farms ranked, regardless of size, in priority order that have applied for an incentive grant under this section.  The priority list shall be established according to factors that the secretary determines are relevant to protect the quality of waters of the state, including:

(1)  the proximity of a farm to a water listed as impaired for agricultural runoff, pathogens, phosphorus, or sediment by the agency of natural resources;

(2)  the proximity of a farm to an unimpaired water of the state;

(3)  the proximity of a drinking water well to land where a farm applies manure; and

(4)  the risk of discharge to waters of the state from the land application of manure by a farm.

(d)  Assistance in accordance with this section shall be provided from state funds appropriated to the agency of agriculture, food and markets for integrated crop management.

(e)  If the secretary lacks adequate funds necessary for the financial assistance required by subsection (a) of this section, the requirement to develop and implement a nutrient management plan under state statute or state regulation shall be suspended until adequate funding becomes available.  Suspension of a state-required nutrient management plan does not relieve an owner or operator of a farm permitted under section 4858 of this title of the remaining requirements of a state permit, including discharge standards, groundwater protection, and land application of manure.  This subsection does not apply to farms permitted under section 1263 of Title 10 or farms permitted under section 4851 of this title.

(f)  The secretary may contract with natural resources conservation districts, the University of Vermont extension service, and other persons and organizations to aid in the implementation of the incentive grants program under subsection (a) of this section and to assist farmers in the development and implementation of nutrient management plans.

Sec. 7.  6 V.S.A. § 4850 is amended to read:

§ 4850.  DEFINITIONS

For purposes of this subchapter:

(1)  “Animal unit” means 1,000 pounds of live body weight of livestock. Animal units are calculated by adding the following numbers: the number of slaughter and feeder cattle multiplied by 1.0, plus the number of mature dairy cattle multiplied by 1.4, plus the number of swine weighing over 25 kilograms multiplied by 0.4, plus the number of sheep multiplied by 0.1, plus the number of horses multiplied by 2.0, for any large farm operation.

(2)(1)  “Domestic fowl” means laying-hens, broilers, ducks, and turkeys.

(3)(2)  “Livestock” means cattle, swine, sheep, or horses.

Sec. 8.  6 V.S.A. § 4851 is amended to read:

§ 4851.  PERMIT REQUIREMENTS FOR LARGE FARM OPERATIONS

(a)  No person shall, without a permit from the secretary, construct a new barn, or expand an existing barn, designed to house more than 700 mature dairy animals, 1,000 cattle or cow/calf pairs, 1,000 veal calves, 2,500 swine weighing over 55 pounds, 10,000 swine weighing less than 55 pounds, 500 horses, 10,000 sheep or lambs, 55,000 turkeys, 30,000 laying hens or broilers with a liquid manure handling system, 82,000 laying hens without a liquid manure handling system, 125,000 chickens other than laying hens without a liquid manure handling system, 5,000 ducks with a liquid manure handling system, or 30,000 ducks without a liquid manure handling system.  No permit shall be required to replace an existing barn in use for livestock or domestic fowl production at its existing capacity.  The secretary of agriculture, food and markets, in consultation with the secretary of natural resources, shall review any application for a permit under this section with regard to water quality impacts and, prior to approval of a permit under this subsection, shall issue a written determination regarding whether the applicant has established that there will be no unpermitted discharge to waters of the state pursuant to the federal regulations for concentrated animal feeding operations.  If upon review of an application for a permit under this subsection, the secretary of agriculture, food and markets determines that the permit applicant may be discharging to waters of the state, the secretary of agriculture, food and markets and the secretary of natural resources shall respond to the discharge in accordance with the memorandum of understanding regarding concentrated animal feeding operations under subsection 4810(b) of this title.  The secretary of natural resources may require a large farm to obtain a permit under section 1263 of Title 10 pursuant to federal regulations for concentrated animal feeding operations.

* * *

(d)  A person seeking a permit under this section shall apply in writing to the secretary.  The application shall include a description of the proposed barn or expansion of animal units livestock or domestic fowl; a proposed nutrient management plan to accommodate the number of livestock or domestic fowl the barn is designed to house or expand to; and a description of the manure management system to be used to accommodate agricultural wastes.

* * *

Sec. 9.  6 V.S.A. § 4852 is amended to read:

§ 4852.  RULES

The secretary may adopt rules pursuant to chapter 25 of Title 3 concerning program administration, program enforcement, appeals and standards for waste management and waste storage, groundwater contamination, odor, noise, traffic, insects, flies, and other pests in order to implement this subchapter.  In no case shall the rules be stricter than the federal regulations when adjusted where appropriate to 95 percent of the federal threshold governing concentrated animal feeding operations, as set forth in the EPA Guide Manual on NPDES Regulations and in EPA Document 833-B-95-001 of December, 1995.  The groundwater contamination rules adopted by the secretary shall include a process under which the agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner.

Sec. 10.  6 V.S.A. § 4858 is amended to read:

§ 4858.  ANIMAL WASTE PERMITS

* * *

(b)  Rules; general and individual permits.  The secretary shall establish by rule, pursuant to chapter 25 of Title 3, requirements for a “general permit” and “individual permit” to ensure that medium and small farms generating animal waste comply with the water quality standards of the state.

(1)  “General” and “individual” permits issued under this section shall be consistent with rules adopted under this section, shall include terms and conditions appropriate to each farm size category and each farm animal type as defined by section 4857 of this title and shall meet standards at least as stringent as those established by the U.S. Environmental Protection Agency for concentrated animal feeding operations, as set forth in USEPA National Pollutant Discharge Elimination System Permit Regulation and Effluent Limitation Guidelines and Standards for Concentrated Animal Feeding Operations; Final Rule, 68 Fed. Reg. 7176 (2004)(to be codified at 40 C.F.R. Parts 9, 122, 123, 68, and 412) federal regulations for concentrated animal feeding operations.  Such standards shall address waste management, waste storage, development of nutrient management plans, carcass disposal, and surface water and groundwater contamination, plus recordkeeping and, reporting regarding such matters, and monitoring provisions regarding such matters to ensure that the terms and conditions of the permit are being met.  The groundwater contamination rules adopted by the secretary under this section shall include a process under which the agency shall receive, investigate, and respond to a complaint that a farm has contaminated the drinking water or groundwater of a property owner.

(c)(1)  Medium farm general permit.  The owner or operator of a medium farm seeking coverage under a general permit adopted pursuant to this section shall certify to the secretary within a period specified in the permit, and in a manner specified by the secretary, that the medium farm does comply with permit requirements regarding an adequately sized and designed manure management system to accommodate the wastes generated and a nutrient management plan to dispose of wastes in accordance with accepted agricultural practices adopted under this chapter.  Any certification or notice of intent to comply submitted under this subdivision shall be kept on file at the agency of agriculture, food and markets.  The secretary of agriculture, food and markets, in consultation with the secretary of natural resources, shall review any certification or notice of intent to comply submitted under this subdivision with regard to the water quality impacts of the medium farm for which the owner or operator is seeking coverage, and, within 18 months of receiving the certification or notice of intent to comply, shall verify whether the owner or operator of the medium farm has established that there will be no unpermitted discharge to waters of the state pursuant to the federal regulations for concentrated animal feeding operations.  If upon review of a medium farm granted coverage under the general permit adopted pursuant to this subsection, the secretary of agriculture, food and markets determines that the permit applicant may be discharging to waters of the state, the secretary of agriculture, food and markets and the secretary of natural resources shall respond to the discharge in accordance with the memorandum of understanding regarding concentrated animal feeding operations under subsection 4810(b) of this title.

(2)  The owner or operator of a small farm may seek coverage under the medium farm general permit adopted pursuant to this section by certifying to the secretary, in a manner specified by the secretary, that the small farm complies with the requirements and conditions of the medium farm general permit.

(d)  Medium and small farms; individual permit.  Upon determination by the secretary that a medium or small farm may be a significant contributor of pollutants to the waters of the state, the secretary may require the farm to obtain an individual permit in order to continue in operation  The secretary may require the owner or operator of a small or medium farm to obtain an individual permit to operate after review of the farm’s history of compliance, application of accepted agricultural practices, the use of an experimental or alternative technology or method to meet a state performance standard, or other factors set forth by rule.  The owner or operator of a small farm may apply to the secretary for an individual permit to operate under this section.  To receive such a an individual permit, an applicant shall in a manner prescribed by rule demonstrate that the farm has an adequately sized and designed manure management system to accommodate the wastes generated and a nutrient management plan to dispose of wastes in accordance with accepted agricultural practices adopted under this chapter, including setback requirements for waste application.  An individual permit shall be valid for no more than five years. Any application for an individual permit filed under this subsection shall be kept on file at the agency of agriculture, food and markets.  The secretary of agriculture, food and markets, in consultation with the agency of natural resources, shall review any application for a permit under this subsection and, prior to issuance of an individual permit under this subsection, shall issue a written determination regarding whether the permit applicant has established that there will be no unpermitted discharge to waters of the state pursuant to federal regulations for concentrated animal feeding operations.  If, upon review of an application for a permit under this subsection, the secretary of agriculture, food and markets determines that the permit applicant may be discharging to waters of the state, the secretary of agriculture, food and markets and the secretary of natural resources shall respond to the discharge in accordance with the memorandum of understanding regarding concentrated animal feeding operations under subsection 4810(b) of this title.  The secretary of natural resources may require a medium or small farm to obtain a permit under section 1263 of Title 10 pursuant to federal regulations for concentrated animal feeding operations.  Coverage of a medium farm under a general permit adopted pursuant to this section or an individual permit issued to a medium or small farm under this section is rendered void by the issuance of a permit to a farm under section 1263 of Title 10.

* * * Agency of Natural Resources * * *

Sec. 11.  10 V.S.A. § 1259(f) is amended to read:

(f)  The provisions of subsections (c), (d), and (e) of this section shall not regulate accepted agricultural or silvicultural practices, as such are defined by the secretary of agriculture, food and markets and the commissioner of forests, parks and recreation, respectively, after an opportunity for a public hearing; nor shall these provisions regulate discharges from concentrated animal feeding operations that require a permit under section 1263 of this title; nor shall those provisions prohibit stormwater runoff or the discharge of nonpolluting wastes, as defined by the board.

Sec. 12.  10 V.S.A. § 1263(g) is added to read:

(g)  Notwithstanding any other provision of law, any person who owns or operates a concentrated animal feeding operation that requires a permit under the federal National Pollutant Discharge Elimination System permit regulations shall submit an application to the secretary for a discharge permit and pay the required fees specified in 3 V.S.A. § 2822.  The substantive permitting standards and criteria used by the secretary to evaluate applications and issue or deny discharge permits for concentrated animal feeding operations shall be those specified by federal regulations.  On or before July 1, 2007, the secretary of natural resources shall adopt rules implementing the federal National Pollutant Discharge Elimination System permit regulations for discharges from concentrated animal feeding operations.  Until such regulations are adopted, the substantive permitting standards and criteria used by the secretary to evaluate applications and issue or deny discharge permits for concentrated animal feeding operations shall be those specified by federal regulations.  The secretary may issue an individual or general permit for these types of discharges in accordance with the procedural requirements of subsection (b) of this section and other state law.  For the purposes of this subsection, “concentrated animal feeding operation” means a farm that meets the definition contained in the federal regulations.

Sec. 13.  10 V.S.A. § 1264(e)(2) is amended to read:

(2)  As one of the principal means of administering an enhanced stormwater program, the secretary may issue and enforce general permits.  To the extent appropriate, such permits shall include the use of certifications of compliance by licensed professional engineers practicing within the scope of their engineering specialty.  The secretary may issue general permits for classes of regulated stormwater runoff permittees and may specify the period of time for which the permit is valid other than that specified in subdivision 1263(d)(4) of this title when such is consistent with the provisions of this section.  General permits shall be adopted and administered in accordance with the provisions of subsection 1263(b) of this title.  No permit is required under this section for:

(A)  stormwater Stormwater runoff from farms subject to accepted agricultural practices adopted by the secretary of agriculture, food and markets;

(B)  Stormwater runoff from concentrated animal feeding operations that require a permit under subsection 1263(g) of this chapter; or

(C)  for stormwater Stormwater runoff from silvicultural activities subject to accepted management practices adopted by the commissioner of forests, parks and recreation.

Sec. 14.  Sec. 9 of No. 149 of the Acts of the 2003 Adj. Sess. (2004) is amended to read:

Sec. 9.  RULEMAKING FOR MEDIUM AND SMALL FARM ANIMAL WASTE PERMITS

Before filing under section 836 of Title 3, the secretary of agriculture, food and markets shall report to the general assembly a proposal for rules required by subsection 4858(b) of Title 6.  The house and senate committees on agriculture shall review the proposed rules and recommend whether the rules shall be approved.  Absent action by the general assembly, the secretary may file the proposed rules with the secretary of state after 30 legislative days from the day of the report no earlier than May 1, 2005.

Sec. 15.  AGENCY OF AGRICULTURE WATER QUALITY OUTREACH, EDUCATION, AND TRAINING

(a)  Prior to February 2006, the agency of agriculture, food and markets shall develop educational and training programs and conduct public hearings to inform farmers in Vermont of the requirements of this act, the proposed general permit for medium farm operations, and the federal regulations for concentrated animal feeding operations.  In developing the education programs required by this section, the agency may utilize various types of media, group meetings, on-farm demonstrations, and one-on-one farm visits.

(b)  The agency of agriculture, food and markets, in consultation with the agency of natural resources, shall coordinate the training of staff from the natural resources conservation districts, the University of Vermont extension service, the Natural Resources Conservation Service, and other persons and organizations regarding the requirements of the state animal waste permit program and what may constitute a discharge from a concentrated animal feeding operation.

Sec. 16.  ANNUAL REPORT

(a)  On January 1 of each year, the agency of natural resources shall submit an annual report to the house and senate committees on agriculture, the house committee on fish, wildlife and water resources, and the senate committee on natural resources and energy regarding implementation by the agency of a National Pollutant Discharge Elimination System (NPDES) permit program for farms subject to the federal Clean Water Act regulations for concentrated animal feeding operations (CAFOs).  The report shall include:

(1)  a summary of the status of the federal regulations;

(2)  a summary of the litigation challenging the federal regulations;

(3)  a summary of any revised rulemaking by the U.S. Environmental Protection Agency;

(4)  a recommendation by the agency of natural resources regarding the rules regulating discharges from concentrated animal feeding operations

(5)  a copy of the memorandum of understanding for concentrated animal feeding operations required by section 4810 of Title 6 and a recommendation by the agency of natural resources regarding any need to amend the memorandum of understanding;

(6)  an assessment of the impact on surface water quality of the implementation of the NPDES permit program for concentrated animal feeding operations; and

(7)  a summary of the impact on small farms of the implementation of the NPDES permit program, including the number of small farms required to obtain an NPDES permit.

(b)  On January 1 of each year, the agency of agriculture, food and markets shall submit an annual report to the house and senate committees on agriculture, the house committee on fish, wildlife and water resources, and the senate committee on natural resources and energy concerning the status of the state animal waste permit program.  The report shall include:

(1)  an assessment of the adequacy of agricultural waste storage and land application of manure on farms in Vermont;

(2)  an assessment of the extent of the financial and technical resources required to implement successfully the state agricultural water quality program, including the number of nutrient management plans required, the number of waste storage facilities that require upgrading, and an estimate of the appropriations necessary to fund state assistance programs;

(3)  the status of rulemaking for the medium farm general permit;

(4)  the status of any pending or proposed rulemaking for large farms or accepted agricultural practices;

(5)  a summary of the year-to-date funding of the nutrient management planning by the agency of agriculture, food and markets;

(6)  a summary of agency efforts to develop educational programs and conduct public hearings to inform farmers in Vermont of the requirements of this act, the proposed general permit for medium farm operations, and the status of the federal regulations for concentrated animal feeding operations;

(7)  an assessment of the impact of the state agricultural water quality program on small farms in Vermont, including the number of small farms voluntarily entering the program and the number of small farms required to obtain a state animal waste permit;

(8)  a summary of the financial and technical assistance provided to farms, including the type and amount of assistance awarded according to farm size; and

(9)  an assessment of the impact on the groundwater of the state of the implementation of the state agricultural water quality program.

Sec. 17.  SUNSET

Sec. 16 of this act (annual report) shall be repealed on January 2, 2010.

Sec. 18.  EFFECTIVE DATE

This act shall take effect on passage.


ORDERED TO LIE

S. 112

An act relating to the practice of optometry.

PENDING ACTION:  Second reading of the bill.

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)

Karen Handy Luneau of St. Albans – Member of the Vermont State Colleges Board of Trustees – By Sen. Collins for the Committee on Education.  (5/5)

David E. Luce of Waterbury Center – Member of the Community High School of Vermont Board – By Sen. Doyle for the Committee on Education.  (5/5)

Walter E. Freed of Dorset – Member of the Liquor Control Board – By Sen. Dunne for the Committee on Economic Development, Housing and General Affairs.  (5/6)

Ugo Sartorelli of Barre – Member of the State Police Advisory Commission – By Sen. Doyle for the Committee on Government Operations.

Patrick Flood of East Calais – Commissioner of the Department of Aging and Independent Living – By Sen. White for the Committee on Health and Welfare.  (5/18)

James Morse of Charlotte – Commissioner of the Department of Children and Families – By Sen. Flanagan.  (5/18)

Paul Jarris, M.D. of Shelburne – Commissioner of the Department of Health – By Sen. Leddy for the Committee on Health and Welfare.  (5/18)

Heather Shouldice of East Calais – Member of the Capitol Complex Commission- By Sen. Scott for the Committee on Institutions.  (5/31)

REPORTS ON FILE

Pursuant to the provisions of 2 V.S.A. §20(c), one (1) copy of the following reports is on file in the office of the Secretary of the Senate:

122.   Department of Public Service Biennial Report.  (May 2005).



Published by:

The Vermont General Assembly
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Montpelier, Vermont


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