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House Calendar

TUESDAY, FEBRUARY 12, 2008

36th DAY OF ADJOURNED SESSION

House Convenes at 10:00 A M

TABLE OF CONTENTS

                                                                                                               Page No.

ACTION CALENDAR

Action Postponed Until Tuesday, February 12, 2008

Pending Action: Second Reading of the bill

H. 458  Digital Corporate Transactions.......................................................... 254

Rep. Kitzmiller for Commerce

NOTICE CALENDAR

Favorable with Amendment

S. 209  VT Energy Efficiency and Affordability Act......................................... 273

          Rep. Dostis for Natural Resources and Energy

          Rep. Smith for Ways and Means........................................................... 312

          Rep. Keenan for Appropriations........................................................... 313

 

S. 278  Relating to Financing Campaigns........................................................ 313

     Rep. Sweaney for Government Operations

S. 355  Debt Financing for Vermont Housing Finance Agency......................... 326

     Rep. McCormack for General, Housing and Military Affairs

Favorable

J.R.S. 49  Collection of U S Census data in Vermont..................................... 326

     Rep. Evans of Essex for Government Operations

Senate Proposal of Amendment

H. 93  Beer Producers’ Interest in Retail Liquor Licenses............................... 326

 

 

 


 

ORDERS OF THE DAY

ACTION CALENDAR

Action Postponed Until Tuesday, February 12, 2008

Pending Action: Second Reading

H. 458

     An act relating to digital corporate transactions.

Rep. Kitzmiller of Montpelier, for the Committee on Commerce, recommends the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  11 V.S.A. § 3001 is amended to read:

§ 3001.  DEFINITIONS

As used in this chapter:

* * *

(15)  “Operating agreement” means the agreement in writing any form of description of membership rights and obligations under section 3003 of this title, stored or depicted in any tangible or electronic medium, which is agreed to by the members, including amendments to the agreement.

* * *

(19)  “Signed” includes any symbol or electronic schema that may be prescribed by the secretary of state that is executed or adopted by a person with the present intention to authenticate a record.

* * *

(23)  “Document” means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.    

(24)  “Writing” means written communications, including letters, faxes, e-mails, or other electronic formats that may be prescribed by the secretary of state.

(25)  “Delivery” means surface mail or methods of electronic transmission the secretary of state may prescribe.

(26)  “Meeting” means any structured communications conducted by participants in person or through the use of electronic or telecommunications medium permitting simultaneous or sequentially structured communications for the purpose of reaching a collective agreement.

Sec. 2.  11 V.S.A. § 3026(f) is added to read:

(f)  An original copy may consist of an electronic communication received by the secretary of state’s office, endorsement may consist of an attached electronic record, and the delivery of a duplicate may be done electronically.

Sec. 3.  11 V.S.A. § 3058(c) is amended to read:

(c)  A company may maintain its records in other than written form if such form is capable of conversion into written form within a reasonable time or into an electronic form that may be prescribed by the secretary of state.

Sec. 4.  11A V.S.A. § 1.20 is amended to read:

§ 1.20.  FILING REQUIREMENTS

* * *

(d)  The document must be typewritten or printed or, if electronically transmitted, it must be in a format that can be retrieved or reproduced in typewritten or printed form or in an electronic format prescribed by the secretary of state.

* * *

(h)  If the secretary of state has prescribed a mandatory form or electronic format for the document under section 1.21 of this title, the document must be in or on the prescribed form.

* * *

(j)(1)  Any of the terms of a plan or filed documents may be made dependent on facts ascertainable outside the plan or filed documents as follows:

(A)  The manner in which the facts operate on the terms of the plan or filed document must be clearly and expressly set forth in the plan or filed document.

(B)  The facts may include without limitation actions or events within the control of, or determinations made by, a part to the plan or filing the filed document or a representative of a party to the plan or filing the filed document. 

(2)  As used in this section:

(A)  “Filed document” means a document filed with the secretary of state under any provision of this title, except chapter 15 or section 16.22 of this title.

(B)  “Plan” means a plan of merger or share exchange.

Sec. 5.  11A V.S.A. § 1.21(a) is amended to read:

(a)  The secretary of state may prescribe the form or electronic format of and furnish on request forms or specifications for formats for:

(1)  articles of incorporation. such form shall note the information required under subsection 2.02(a) of this title, together with a summary of such information or provisions as are permitted by this title;

(2)  an application for a certificate of good standing;

(3)  a foreign corporation’s application for a certificate of authority to transact business in this state;

(4)  a foreign corporation’s application for a certificate of withdrawal; and

(5)  the annual report.

Sec. 6.  11A V.S.A. § 1.23(a) is amended to read:

§ 1.23.  EFFECTIVE TIME AND DATE OF DOCUMENT

(a)  Except as provided in subsection (b) of this section, section subsection 1.24(c) of this title, and section 2.03 of this title, a document accepted for filing is effective at the time of filing on the date it is filed, as evidenced by the secretary of state’s date and time endorsement on the original document:

(1)  at the date and time of filing, as evidenced by such means as the secretary of state may use for the purpose of recording the date and time of filing; or

(2)  at the time specified in the document as its effective time on the date it is filed.

Sec. 7.  11A V.S.A § 1.24(a) is amended to read:

(a)  A domestic or foreign corporation may correct a document filed by the secretary of state if the document:

(1)  is incomplete;

(2)  contains an incorrect statement; or

(3)  was defectively executed, attested, sealed, verified, or acknowledged; or

(4)  the electronic transmission of which was defective.

Sec. 8.  11A V.S.A. § 1.25(b) is amended to read:

(b)  The secretary of state files a document by stamping or otherwise endorsing recording it as “Filed” together with his or her name and official title and on the date and time of receipt, on both the original and the document copy document and on the record of the receipt for the filing fee.  After filing a document, except as provided in sections 5.03 and 15.10 of this title, the secretary of state shall deliver a copy of the document copy, with the and filing fee receipt (or acknowledgement of receipt if no fee is required) attached, to the domestic or foreign corporation or its representative.

Sec. 9.  11A V.S.A. § 1.27 is amended to read:

§ 1.27.  EVIDENTIARY EFFECT OF COPY OF FILED DOCUMENT

(a)  A certificate attached to a copy of a document filed by the secretary of state, bearing his or her signature (which may be in facsimile) and the seal of this state, is conclusive evidence that the original document is on file with the secretary of state.

(b)  A certificate by the secretary of state that a diligent search has failed to locate documents claimed to be filed with the secretary of state shall be taken and received in all courts, public offices, and official bodies as prima facie evidence of the absence of those documents in the files of the secretary of state.

(c)  The secretary of state’s filing of the articles of incorporation is conclusive proof that the incorporators satisfied all conditions precedent to incorporation except in a proceeding by the state to cancel or revoke the incorporation or involuntarily dissolve the corporation

A certificate from the secretary of state delivered with a copy of a document filed by the secretary of state is conclusive evidence that the document is on file with the secretary of state.

Sec. 10.  11A V.S.A. § 1.40 is amended to read:

§ 1.40.  DEFINITIONS

 * * *

(5)  “Deliver” includes mail or “delivery” means any method of delivery used in conventional commercial practice, including delivery by hand, mail, commercial delivery, and electronic transmission.

* * *

(25)  “Electronic transmission” or “electronically transmitted” means a process of communication not directly involving the physical transfer of paper that is suitable for the retention, retrieval, and reproduction of information by the recipient.

(26)  “Meeting” means any structured communications conducted by participants in person or through the use of electronic or telecommunications medium permitting simultaneous or sequentially structured communications for the purpose of reaching a collective agreement.

(27)  “Sign” or “signature” includes any manual, facsimile, conformed, or electronic signature.

Sec. 11.  11A V.S.A. § 141(b) and (c) are amended to read:

(b)  Notice may be communicated in person; by telephone, voice mail, telegraph, teletype, facsimile, or other form of wire or, wireless, or electronic communication; or by mail or private carrier or other method of delivery.  If these forms of personal notice are impracticable, notice may be communicated by a newspaper of general circulation in the area where published; or by radio, television, or other form of public broadcast communication.

(c)  Notice to shareholders.  Written notice by a domestic or foreign corporation to its shareholder, if in a comprehensible form, is effective when: 

(1)  mailed first class postpaid and correctly addressed to the shareholder’s address as shown in the corporation’s current record of shareholders; or 

(2)  electronically transmitted to the shareholder in a manner authorized by the shareholder.

Sec. 12.  11A V.S.A. § 6.01 is amended to read:

§ 6.01.  AUTHORIZED SHARES

* * *

(d)  The description of the designations, preferences, limitations, and relative rights of share classes in subsection (c) of this section is not exhaustive  Terms of shares may be made dependent upon facts objectively ascertainable outside the articles of incorporation in accordance with subsection 1.20(k) of this title.

(e)  Any of the terms of shares may vary among holders of the same class or series so long as such variations are expressly set forth in the articles of incorporation.

(f)  The description of the designations, preferences, limitations, and relative rights of share classes in subsection (c) of this section is not exhaustive.

Sec. 13.  11A V.S.A. § 6.21 is amended to read:

§ 6.21.  ISSUANCE OF SHARES

* * *

(b)  The board of directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the corporation, including cash, promissory notes, services performed, contracts for services performed, or other securities of the corporation.  Future services shall not constitute payment or part payment for shares of a corporation.

* * *

(e)  The corporation may place in escrow shares issued for a contract for future services or benefits or a promissory note, or make other arrangements to restrict the transfer of the shares, and may credit distributions in respect of the shares against their purchase price, until the services are performed, the note is paid, or the benefits are received.  If the services are not performed, the note is not paid, or the benefits are not received, the shares escrowed or restricted and the distributions credited may be cancelled in whole or part. 

Sec. 14.  11A V.S.A. § 6.24 is amended to read:

§ 6.24.  SHARE OPTIONS

A corporation may issue rights, options, or warrants for the purchase of shares of the corporation.  The board of directors shall determine the terms upon which the rights, options, or warrants are issued, their form and content, and the consideration for which the shares are to be issued.  The provisions of sections 8.60 through 8.63 of this title apply in accordance with their terms in the case of transactions involving the issuance of rights, options, or warrants for the purchase of shares to directors.  Any transactions involving the issuance of options for the purchase of shares to directors, as such, shall be subject to the approval of the shareholders.

(a)  A corporation may issue rights, options, or warrants for the purchase of shares or other securities of the corporation.  The board of directors shall determine:

(1)  the terms upon which the rights, options, or warrants are issued; and

(2)  the terms, including the consideration for which the shares or other securities are to be issued. 

(b)  The authorization by the board of directors for the corporation to issue such rights, options, or warrants constitutes authorization of the issuance of the shares or other securities for which the rights, options, or warrants are exercisable. 

(c)  The terms and conditions of such rights, options, or warrants, including those outstanding on the effective date of this section, may include, without limitation, restrictions or conditions that: 

(1)  preclude or limit the exercise, transfer, or receipt of such rights, options, or warrants by any person or persons owning or offering to acquire a specified number or percentage of the outstanding shares or other securities of the corporation or by any transferee or transferees of any such person or persons; or

(2)  invalidate or void such rights, options, or warrants held by any such person or persons or any such transferee or transferees.

Sec. 15.  11A V.S.A. § 7.01 is amended to read:

§ 7.01.  ANNUAL MEETING

(a)  A corporation shall hold a meeting of shareholders annually at a time stated in or fixed in accordance with the bylaws.

(b)  Annual shareholders’ meetings shall be held in this state, unless permitted in the bylaws of the corporation to be held out of this state.  Annual meetings shall be held at the place stated in or fixed in accordance with the bylaws.  If no place is stated in or fixed in accordance with the bylaws, annual meetings shall be held at the corporation’s principal office.  An annual meeting may be conducted by means of any telecommunications mechanism, including video-conference telecommunication.

(c)  The failure to hold an annual meeting at the time stated in or fixed in accordance with a corporation’s bylaws does not affect the validity of any corporate action, and shall result not in a forfeiture or dissolution of the corporation

Annual shareholders’ meetings shall be held in this state, unless permitted in the bylaws of the corporation to be held outside this state.  Annual meetings shall be held at the place stated in or fixed in accordance with the bylaws.  If no place is stated in or fixed in accordance with the bylaws, annual meetings shall be held at the corporation’s principal office.  An annual meeting may be conducted by means of any electronic or telecommunications mechanism, including video-conference telecommunication. The failure to hold an annual meeting at the time stated or fixed in accordance with a corporation’s bylaws does not affect the validity of any corporate action.

Sec. 16.  11A V.S.A. § 7.02(c) is amended to read:

(c)  Special shareholders’ meetings shall be held in this state, unless permitted in the bylaws of the corporation to be held out of this state.  Meetings shall be held at the place stated in or fixed in accordance with the bylaws.  If no place is stated in or fixed in accordance with the bylaws, annual meetings shall be held at the corporation’s principal office.  A special meeting may be conducted by means of any electronic or telecommunications mechanism, including video-conference telecommunication.

Sec. 17.  11A V.S.A. § 7.04(a) is amended to read:

(a)  Unless the articles of incorporation preclude the taking of action required or permitted by this title without a shareholders’ meeting, action required or permitted by this title to be taken at a shareholders’ meeting may be taken without a meeting if the action is taken by all the shareholders entitled to vote on the action.  Each action must be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered to the corporation for inclusion in the minutes or filed with the corporate records.  For purposes of this section, consent evidenced by electronic communications or an electronic record is written consent.

Sec. 18.  11A V.S.A. § 7.32 is added to read:

§ 7.32.  SHAREHOLDER AGREEMENTS

(a)  An agreement among the shareholders of a corporation that complies with this section is effective among the shareholders and the corporation even though it is inconsistent with one or more other provisions of this title in that it:

(1)  eliminates the board of directors or restricts the discretion or powers of the board of directors; 

(2)  governs the authorization or making of distributions whether or not in proportion to ownership of shares, subject to the limitations in section 6.40 of this title; 

(3)  establishes who shall be directors or officers of the corporation, or

their terms of office or manner of selection or removal;

(4)  governs, in general or in regard to specific matters, the exercise or division of voting power by or between the shareholders and directors or by or among any of them, including the use of weighted voting rights or director proxies;

(5)  establishes the terms and conditions of any agreement for the transfer or use of property or the provision of services between the corporation and any shareholder, director, officer, or employee of the corporation or among any of them; 

(6)  transfers to one or more shareholders or other persons all or part of the authority to exercise the corporate powers or to manage the business and affairs of the corporation, including the resolution of any issue about which there exists a deadlock among directors or shareholders; 

(7)  requires dissolution of the corporation at the request of one or more of the shareholders or upon the occurrence of a specified event; or 

(8)  otherwise governs the exercise of the corporate powers or the management of the business and affairs of the corporation or the relationship among the shareholders, the directors, and the corporation, or among any of them, and is not contrary to public policy.

(b)  An agreement authorized by this section shall be: 

(1)  set forth:

(A)  in the articles of incorporation or bylaws and approved by all persons who are shareholders at the time of the agreement; or

(B)  in a written agreement that is signed by all persons who are shareholders at the time of the agreement and is made known to the corporation; 

(2)  subject to amendment only by the holders of a majority of each class of the corporation’s issued and outstanding  capital stock, with each class voting as a separate group, unless the agreement provides otherwise; and

(3)  valid for 10 years, unless the agreement provides otherwise.

(c)  The existence of an agreement authorized by this section shall be noted conspicuously on the front or back of each certificate for outstanding shares or on the information statement required by subsection 6.26(b) of this title.  If at the time of the agreement the corporation has shares outstanding represented by certificates, the corporation shall recall the outstanding certificates and issue substitute certificates that comply with this subsection.  The failure to note the existence of the agreement on the certificate or information statement shall not affect the validity of the agreement or any action taken pursuant to it.  Any purchaser of shares who, at the time of purchase, did not have knowledge of the existence of the agreement shall be entitled to rescission of the purchase.  A purchaser shall be deemed to have knowledge of the existence of the agreement if its existence is noted on the certificate or information statement for the shares in compliance with this subsection and, if the shares are not represented by a certificate, the information statement is delivered to the purchaser at or prior to the time of the purchase of the shares.  An action to enforce the right of rescission authorized by this subsection must be commenced within the earlier of 90 days after discovery of the existence of the agreement or two years after the time of the purchase of the shares. 

(d)  An agreement authorized by this section shall cease to be effective when the corporation becomes a public corporation.  If the agreement ceases to be effective for any reason, the board of directors may, if the agreement is contained or referred to in the corporation’s articles of incorporation or bylaws, adopt an amendment to the articles of incorporation or bylaws, without shareholder action, to delete the agreement and any references to it. 

(e)  An agreement authorized by this section that limits the discretion or powers of the board of directors shall relieve the directors of, and impose upon the person or persons in whom such discretion or powers are vested, liability for acts or omissions imposed by law on directors to the extent that the discretion or powers of the directors are limited by the agreement. 

(f)  The existence or performance of an agreement authorized by this section shall not be a ground for imposing personal liability on any shareholder for the acts or debts of the corporation, even if the agreement or its performance treats the corporation as if it were a partnership or results in failure to observe the corporate formalities otherwise applicable to the matters governed by the agreement. 

(g)  Incorporators or subscribers for shares may act as shareholders with respect to an agreement authorized by this section if no shares have been issued when the agreement is made.

Sec. 18.  11A V.S.A. § 8.03(a) amended to read:

(a)  A board of directors of a corporation which is not a close corporation dispensing with a board of directors pursuant to section 20.08 of this title must consist of three one or more individuals, with the number specified in or fixed in accordance with the articles of incorporation or bylaws.  If the number of shareholders in any corporation is less than three, the The number of directors may be as few as the number of shareholders increased or decreased from time to time by amendment to, or in the manner provided in, the articles of incorporation or the bylaws.

Sec. 19.  11A V.S.A. § 8.20 is amended to read:

§ 8.20.  MEETINGS

(a)  The board of directors may hold regular or special meetings, as defined in subdivision 1.40(26) of this title, in or out of outside this state.

(b)  The board of directors may permit any or all directors to participate in a regular or special meeting by, or conduct the meeting through the use of, any means of communication, including an electronic, telecommunications, and video- or audio‑conferencing conference telephone call, by which all directors participating may simultaneously hear communicate with each other during the meeting.  A director participating in a meeting by this means is deemed to be present in person at the meeting.

Sec. 20.  11A V.S.A. § 8.40 is amended to read:

§ 8.40.  REQUIRED OFFICERS

(a)  A corporation has the officers described in its bylaws or appointed by the board of directors in accordance with the bylaws, provided that a corporation shall have a president and a secretary.  Any two or more offices may be held by the same person, except the offices of president and secretary, unless the corporation is a professional corporation organized under chapter 3 or 4 of Title 11.

(b)  A duly appointed The board of directors may elect individuals to fill one or more offices of the corporations.  An officer may appoint one or more officers or assistant officers if authorized by the bylaws or the board of directors.

(c)  The bylaws or the board of directors shall delegate assign to one of the officers responsibility for preparing the minutes of the directors’ and shareholders’ meetings and for authenticating and maintaining the records of the corporation required to be kept under subsections 16.01(a) and 16.10(e) of this title.

* * *

 (e)  An individual who holds more than one office may execute, acknowledge or verify in more than one capacity any document required to be executed, acknowledged or verified by the holders of two or more officers.

Sec. 21.  11A V.S.A. § 8.60 is amended to read:

§ 8.60.  DEFINITIONS

For purposes of this subchapter:

(1)  “Conflicting interest” with respect to a corporation means the interest a director of the corporation has respecting a transaction effected or proposed to be effected by the corporation (or by a subsidiary of the corporation or any other entity in which the corporation has a controlling interest) if

(A)  whether or not the transaction is brought before the board of directors of the corporation for action, the director knows at the time of commitment that he or she or a related person is a party to the transaction or has a beneficial financial interest in or so closely linked to the transaction and of such financial significance to the director or a related person that the interest would reasonably be expected to exert an influence on the director’s judgment if he or she were called upon to vote on the transaction; or

(B)  the transaction is brought (or is of such character and significance to the corporation that it would in the normal course be brought) before the board of directors of the corporation for action, and the director knows at the time of commitment that any of the following persons is either a party to the transaction or has a beneficial financial interest in or so closely linked to the transaction and of such financial significance to the person that the interest would reasonably be expected to exert an influence on the director’s judgment if he or she were called upon to vote on the transaction:

(i)  an entity (other than the corporation) of which the director is a director, general partner, agent, or employee;

(ii)  a person that controls one or more of the entities specified in subdivision (i) of this subdivision or an entity that is controlled by, or is under common control with, one or more of the entities specified in subdivision (i); or

(iii)  an individual who is a general partner, principal, or employer of the director.

(2)  “Director’s conflicting interest transaction” with respect to a corporation means a transaction effected or proposed to be effected by the corporation (or by a subsidiary of the corporation or any other entity in which the corporation has a controlling interest) respecting which a director of the corporation has a conflicting interest.

(3)  “Related person” of a director means (A) the spouse (or a parent or sibling thereof) of the director, or a child, grandchild, sibling, parent (or spouse of any thereof) of the director, or an individual having the same home as the director, or a trust or estate of which an individual specified in this subdivision (A) is a substantial beneficiary; or (B) a trust, estate, incompetent, conservatee, or minor of which the director is a fiduciary.

(4)  “Required disclosure” means disclosure by the director who has a conflicting interest of (A) the existence and nature of his or her conflicting interest, and (B) all facts known to him or her respecting the subject matter of the transaction that an ordinarily prudent person would reasonably believe to be material to a judgment about whether or not to proceed with the transaction.

(5)  “Time of commitment” respecting a transaction means the time when the transaction is consummated or, if made pursuant to contract, the time when the corporation (or its subsidiary or the entity in which it has a controlling interest) becomes contractually obligated so that its unilateral withdrawal from the transaction would entail significant loss, liability, or other damage.

(1)  “Control” including the term “controlled by” means:

(A)  having the power, directly or indirectly, to elect or remove a majority of the members of the board of directors or other governing body of an entity whether through the ownership of voting shares or interests, by contract, or otherwise; or

(B)  being subject to a majority of the risk of loss from the entity’s activities or entitled to receive a majority of the entity’s residual returns.

(2)  “Director’s conflicting interest transaction” means a transaction effected or proposed to be effected by the corporation or by an entity controlled by the corporation that at the relevant time the director:

(A)  was a party to; or

(B)  had knowledge of and a material financial interest known to the director; or

(C)  knew that a related person was a party or had a material financial interest. 

(3)  “Fair to the corporation” means, for purposes of subdivision 8.61(b)(3) of this title, that the transaction as a whole was beneficial to the corporation, taking into appropriate account whether it was:

(A)  fair in terms of the director’s dealings with the corporation; and

(B)  comparable to what might have been obtainable in an arm’s length transaction, given the consideration paid or received by the corporation. 

(4)  “Material financial interest” means a financial interest in a transaction that would reasonably be expected to impair the objectivity of the director’s judgment when participating in action on the authorization of the transaction. 

(5)  “Related person” means: 

(A)  the director’s spouse;

(B)  a child, stepchild, grandchild, parent, stepparent, grandparent, sibling, step sibling, half sibling, aunt, uncle, niece, or nephew (or spouse of any thereof) of the director or of the director’s spouse; 

(C)  an individual living in the same home as the director;

(D)  an entity, other than the corporation or an entity controlled by the corporation, controlled by the director or any person specified in this subdivision; 

(E)  a domestic or foreign:

(i)  business or nonprofit corporation (other than the corporation or an entity controlled by the corporation) of which the director is a director;

(ii)  unincorporated entity of which the director is a general partner or a member of the governing body; or

(iii)  individual, trust, or estate for whom or of which the director is a trustee, guardian, personal representative, or like fiduciary; or

(F)  a person that is, or an entity that is controlled by, an employer of the director.

(6)  “Relevant time” means:

(A)  the time at which the directors’ action respecting the transaction is taken in compliance with section 8.62 of this title; or

(B)  if the transaction is not brought before the board of directors of the corporation or its committee for action under section 8.62 of this title, at the time the corporation, or an entity controlled by the corporation, becomes legally obligated to consummate the transaction. 

(7)  “Required disclosure” means disclosure of:

(A)  the existence and nature of the director’s conflicting interest; and

(B)  all facts known to the director respecting the subject matter of the transaction that a director free of such conflicting interest would reasonably believe to be material in deciding whether to proceed with the transaction.

Sec. 22.  11A V.S.A. § 8.61 is amended to read:

§ 8.61.  JUDICIAL ACTION

(a)  A transaction effected or proposed to be effected by a corporation (or by a subsidiary of the corporation or any other entity in which the corporation has a controlling interest) that is not a director’s conflicting interest transaction may not be enjoined, set aside, or give rise to an award of damages or other sanctions, in a proceeding by a shareholder or by or in the right of the corporation, because a director of the corporation, or any person with whom or which he or she has a personal, economic, or other association, has an interest in the transaction.

(b)  A director’s conflicting interest transaction may not be enjoined, set aside, or give rise to an award of damages or other sanctions, in a proceeding by a shareholder or by or in the right of the corporation, because the director, or any person with whom or which he or she has a personal, economic, or other association, has an interest in the transaction, if:

(1)  directors’ action respecting the transaction was at any time taken in compliance with section 8.62 of this subchapter;

(2)  shareholders’ action respecting the transaction was at any time taken in compliance with section 8.63 of this subchapter; or

(3)  the transaction, judged according to the circumstances at the time of commitment, is established to have been fair to the corporation.

(a)  A transaction effected or proposed to be effected by the corporation, or by an entity controlled by the corporation may not be the subject of equitable relief, or give rise to an award of damages or other sanctions against a director of the corporation, in a proceeding by a shareholder or by or in the right of the corporation, on the ground that the director has an interest respecting the transaction, if it is not a director’s conflicting interest transaction. 

(b)  A director’s conflicting interest transaction may not be the subject of equitable relief, or give rise to an award of damages or other sanctions against a director of the corporation, in a proceeding by a shareholder, or by or in the right of the corporation, on the ground that the director has an interest respecting the transaction, if:

(1)  the directors’ action respecting the transaction was taken in compliance with section 8.62 of this title at any time; or 

(2)  the shareholders’ action respecting the transaction was taken in compliance with section 8.63 of this title at any time; or 

(3)  the transaction, judged according to the circumstances at the relevant time, is established to have been fair to the corporation.

Sec. 23.  11A V.S.A. § 8.62 is amended to read:

§ 8.62.  DIRECTORS’ ACTION

(a)  Directors’ action respecting a transaction is effective for purposes of section 8.61(b)(1) of this subchapter if the transaction received the affirmative vote of a majority (but no fewer than two) of those qualified directors on the board of directors or on a duly empowered committee of the board who voted on the transaction after either required disclosure to them (to the extent the information was not known by them) or compliance with subsection (b) of this section; provided that action by a committee is so effective only if:

(1)  all its members are qualified directors; and

(2)  its members are either all the qualified directors on the board or are appointed by the affirmative vote of a majority of the qualified directors on the board.

(b)  If a director has a conflicting interest respecting a transaction, but neither he nor she nor a related person of the director specified in section 8.60(3) of this subchapter is a party to the transaction, and if the director has a duty under law or professional canon, or a duty of confidentiality to another person, respecting information relating to the transaction such that the director may not make the disclosure described in section 8.60(4), then disclosure is sufficient for purposes of subsection (a) of this section if the director (1) discloses to the directors voting on the transaction the existence and nature of his or her conflicting interest and informs them of the character and limitations imposed by that duty before their vote on the transaction, and (2) plays no part, directly or indirectly, in their deliberations or vote.

(c)  A majority (but no fewer than two) of all the qualified directors on the board of directors, or on the committee, constitutes a quorum for purposes of action that complies with this section. Directors’ action that otherwise complies with this section is not affected by the presence or vote of a director who is not a qualified director.

(d)  For purposes of this section, “qualified director” means, with respect to a director’s conflicting interest transaction, any director who does not have either (1) a conflicting interest respecting the transaction, or (2) a familial, financial, professional, or employment relationship with a second director who does have a conflicting interest respecting the transaction, which relationship would, in the circumstances, reasonably be expected to exert an influence on the first director’s judgment when voting on the transaction.

(a)  Directors’ action respecting a director’s conflicting interest transaction is effective for purposes of subdivision 8.61(b)(1) of this title if the transaction has been authorized by the affirmative vote of a majority, but no fewer than two of the qualified directors who voted on the transaction after required disclosure by the conflicted director of information not already known by such qualified directors, or after modified disclosure in compliance with subsection (b) of this section, provided that:

(1)  the qualified directors have deliberated and voted outside the

presence of and without the participation by any other director; and

(2)  where the action has been taken by a committee, all members of the committee were qualified directors, and either:

(A)  the committee was composed of all the qualified directors on the board of directors; or

(B)  the members of the committee were appointed by the affirmative vote of a majority of the qualified directors on the board. 

(b)  Notwithstanding subsection (a) of this section, when a transaction is a director’s conflicting interest transaction only because a related person described in subdivisions 8.60(5)(E) and (F) of this title is a party to or has a material financial interest in the transaction, the conflicted director is not obligated to make required disclosure to the extent that the director reasonably believes that doing so would violate a duty imposed under law, a legally enforceable obligation of confidentiality, or a professional ethics rule, provided that the conflicted director discloses to the qualified directors voting on the transaction:

(1)  all information required to be disclosed that is not so violative;

(2)  the existence and nature of the director’s conflicting interest; and

(3)  the nature of the conflicted director’s duty not to disclose the confidential information.

(c)  A majority, but no fewer than two, of all the qualified directors on the board of directors or on the committee constitutes a quorum for purposes of action that complies with this section. 

(d)  Where directors’ action under this section does not satisfy a quorum or voting requirement applicable to the authorization of the transaction by reason of the articles of incorporation, the bylaws, or a provision of law, independent action to satisfy those authorization requirements must be taken by the board of directors or a committee, in which action directors who are not qualified directors may participate.

Sec. 24.  11A V.S.A. § 8.63 is amended to read:

§ 8.63.  SHAREHOLDERS’ ACTION

(a)  Shareholders’ action respecting a transaction is effective for purposes of section 8.61(b)(2) of this subchapter if a majority of the votes entitled to be cast by the holders of all qualified shares was cast in favor of the transaction after (1) notice to shareholders describing the director’s conflicting interest transaction, (2) provision of the information referred to in subsection (d) of this section, and (3) required disclosure to the shareholders who voted on the transaction (to the extent the information was not known by them).

(b)  For purposes of this section, “qualified shares” mean any shares entitled to vote with respect to the director’s conflicting interest transaction except shares that, to the knowledge, before the vote, of the secretary (or other officer or agent of the corporation authorized to tabulate votes), are beneficially owned (or the voting of which is controlled) by a director who has a conflicting interest respecting the transaction or by a related person of the director, or both.

(c)  A majority of the votes entitled to be cast by the holders of all qualified shares constitutes a quorum for purposes of action that complies with this section. Subject to the provisions of subsections (d) and (e) of this section, shareholders’ action that otherwise complies with this section is not affected by the presence of holders, or the voting, of shares that are not qualified shares.

(d)  For purposes of compliance with subsection (a) of this section, a director who has a conflicting interest respecting the transaction shall, before the shareholders’ vote, inform the secretary (or other officer or agent of the corporation authorized to tabulate votes) of the number, and the identity of persons holding or controlling the vote, of all shares that the director knows are beneficially owned (or the voting of which is controlled) by the director or by a related person of the director, or both.

(e)  If a shareholders’ vote does not comply with subsection (a) of this section solely because of a failure of a director to comply with subsection (d), and if the director establishes that his or her failure did not determine and was not intended by him or her to influence the outcome of the vote, the court may, with or without further proceedings respecting section 8.61(b)(3) of this subchapter, take such action respecting the transaction and the director, and give such effect, if any, to the shareholders’ vote, as it considers appropriate in the circumstances.

(a)  Shareholders’ action respecting a director’s conflicting interest

transaction is effective for purposes of subdivision 8.61(b)(2) of this title if a majority of the votes cast by the holders of all qualified shares is in favor of the transaction after:

(1)  notice to shareholders describing the action to be taken respecting the transaction;

(2)  provision to the corporation of the information referred to in subsection (b) of this section; and

(3)  communication of the information that is the subject of required disclosure to the shareholders entitled to vote on the transaction, to the extent the information is not known by them.

(b)  A director who has a conflicting interest respecting the transaction shall, before the shareholders’ vote, inform the secretary or other officer or agent of the corporation authorized to tabulate votes, in writing, of the number of shares that the director knows are not qualified shares under subsection (c) of this section and the identity of the holders of those shares.  

(c)  For purposes of this section:

(1)  “Holder” means and “held by” refers to shares held by both a record shareholder, as defined in subdivision 13.01(7) of this title, and a beneficial shareholder, as defined in subdivision 13.01(2) of this title;

(2)  “Qualified shares” means all shares entitled to be voted with respect to the transaction except for shares that the secretary or other officer or agent of the corporation authorized to tabulate votes either knows, or under subsection (b) of this section is notified, are held by:

(A)  a director who has a conflicting interest respecting the transaction; or

(B)  a related person of the director, excluding a person described in subdivision 8.60(5)(F) of this title.

(d)  A majority of the votes entitled to be cast by the holders of all qualified shares constitutes a quorum for purposes of compliance with this section.  Subject to the provisions of subsection (e) of this section, shareholders’ action that otherwise complies with this section is not affected by the presence of holders, or by the voting, of shares that are not qualified shares. 

(e)  If a shareholders’ vote does not comply with subsection (a) of this section solely because of a director’s failure to comply with subsection (b) of this section, and if the director establishes that the failure was not intended to influence and did not in fact determine the outcome of the vote, the court may take such action respecting the transaction and the director, and may give such effect, if any, to the shareholders’ vote, as the court considers appropriate in the circumstances. 

(f)  Where shareholders’ action under this section does not satisfy a quorum or voting requirement applicable to the authorization of the transaction by reason of the articles of incorporation, the bylaws, or a provision of law, independent action to satisfy those authorization requirements must be taken by the shareholders, in which action shares that are not qualified shares may participate.

Sec. 25.  11A V.S.A. § 12.02(a) is amended to read:

(a)  A corporation may sell, lease, exchange, or otherwise dispose of all, or substantially all, of its property (with or without the good will), otherwise than in the usual and regular course of business, on the terms and conditions and for the consideration determined by the corporation’s board of directors, if the board of directors proposes and its shareholders approve the proposed transaction A sale, lease, exchange, or other disposition of assets, other than a disposition described in subdivision 12.01 of this title, requires approval of the corporation’s shareholders if the disposition would leave the corporation without a significant continuing business activity.  If a corporation retains a business activity that represented at least 25 percent of the total assets at the end of the most recently completed fiscal year, and 25 percent of either income from continuing operations before taxes or revenues from continuing operations for that fiscal year, in each case of the corporation and its subsidiaries on a consolidated basis, the corporation will conclusively be deemed to have retained a significant continuing business activity.

Sec. 26.  11A V.S.A. § 16.01(d) and (e) are amended to read:

(d)  A corporation shall maintain its records in written form or in another form, including electronic form, capable of conversion into written form within a reasonable time.

(e)  A corporation shall keep a copy of the following records at its principal office (or, if none in this state, then the registered office):

* * *

(5)  all written or electronic communications to shareholders generally within the past three years, including the financial statements furnished for the past three years under section 16.20 of this title;

* * *

(Committee vote: 10-0-1)

NOTICE CALENDAR

Favorable with Amendment

S. 209

An act relating to the Vermont energy efficiency and affordability act.

Rep. Dostis of Waterbury, for the Committee on Natural resources and Energy, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  DESIGNATION OF ACT

This act shall be referred to as “the Vermont energy efficiency and affordability act.”

Sec. 2.  LEGISLATIVE FINDINGS

The general assembly finds that:

(1)  Global climate change, which is threatening our environment and perhaps ultimately our existence, has been caused in part by an energy policy that is largely dependent on the burning of fossil fuels.

(2)  In order to reduce greenhouse gas emissions and environmental degradation, it is essential that we reduce or eliminate our dependency on fossil fuels by significantly improving energy efficiency and shifting to nonpolluting benign forms of energy such as wind, sun, and water power.

(3)  In order for Vermont to meet the greenhouse gas reduction goals set by the conference of the New England governors and Eastern Canadian premiers’ climate change action plan, Vermont needs to provide effective weatherization services, new funding strategies, green building practices, and installation of renewable energy systems.

(4)  The “Vermont energy efficiency potential study for non‑regulated fuels” recently completed by the department of public service indicates that Vermont has cost‑effective potential energy savings of $486 million over the next ten years with 63 percent of those savings from building shell improvements. 

(5)  Although workforce development in the field of green building, renewable energy, and energy efficiency is an essential component of the battle to combat global climate change, there are few trained applicants to fill the new well‑paying jobs being created in this field.

* * * Agriculture Development Funds * * *

Sec. 3.  6 V.S.A. § 4710(g)(3) is amended to read:

(3)  Assistance from the agricultural economic development special account shall be available for in order to produce agricultural energy, harvest biomass, convert biomass into energy, or enable installation and usage of wind, solar, or other technology that relies on a resource that is being consumed at a harvest rate at or below its natural regeneration rate pursuant to 30 V.S.A. § 8002(2), including:

(A)  Business and technical assistance for research and planning to aid a farmer or a group of farmers in developing business enterprises that harvest biomass, convert biomass to energy, or produce biofuel;

(B)  Implementation Cost‑effective implementation assistance to leverage other sources of capital to assist a farmer or group of farmers in purchasing equipment, technology, or other assistance to produce agricultural energy, harvest biomass, or convert biomass into energy; and

* * *

* * * Act 250 Definition of Farming * * *

Sec. 4.  10 V.S.A. § 6001(22) is amended to read:

(22)  “Farming” means:

(A)  the cultivation or other use of land for growing food, fiber, Christmas trees, maple sap, or horticultural and orchard crops; or

(B)  the raising, feeding, or management of livestock, poultry, fish, or bees; or

(C)  the operation of greenhouses; or

(D)  the production of maple syrup; or

(E)  the on‑site storage, preparation and sale of agricultural products principally produced on the farm; or

(F)  the on‑site storage, preparation, production, and sale of fuel or power from agricultural products or wastes principally produced on the farm; or

(G)  the raising, feeding, or management of four or more equines owned or boarded by the farmer, including training, showing, and providing instruction and lessons in riding, training, and the management of equines.

* * * Renewable Energy Goal * * *

Sec. 5.  10 V.S.A. § 579 is added to read:

§ 579.  25 BY 25 STATE GOAL

(a)  It is a goal of the state, by the year 2025, to produce 25 percent of the energy consumed within the state through the use of renewable energy sources, particularly from Vermont’s farms and forests.

(b)  By no later than January 15, 2009, the secretary of agriculture, food and markets, in consultation with the commissioner of public service and the commissioner of forests, parks and recreation, shall present to the committees on agriculture and natural resources and energy of the general assembly a plan for attaining this goal.  Plan updates shall be presented no less frequently than every three years thereafter, and a progress report shall be due annually on January 15.

(c)  By no later than January 15, 2009, the department of public service shall present to the legislative committees on natural resources and energy an updated comprehensive energy plan which shall give due consideration to the public engagement process required under 30 V.S.A. § 254 and under Sec. 2 of No. 208 of the Acts of the 2005 Adj. Sess. (2006).  By that time, the department of public service shall incorporate plans adopted under this section into the state comprehensive energy plan adopted under 30 V.S.A. § 202b.

* * * Building Efficiency Goals * * *

Sec. 6.  10 V.S.A. § 581 is added to read:

§ 581.  BUILDING EFFICIENCY GOALS

It shall be goals of the state:

(1)  To improve substantially the energy fitness of at least 20 percent of the state’s housing stock by 2017 (more than 60,000 housing units), and 25 percent of the state’s housing stock by 2020 (approximately 80,000 housing units).

(2)  To reduce annual fuel needs and fuel bills by an average of 25 percent in the housing units served.

(3)  To reduce total fossil fuel consumption across all buildings by an additional one-half percent each year, leading to a total reduction of six percent annually by 2017 and 10 percent annually by 2025.

(4)  To save Vermont families and businesses a total of $1.5 billion on their fuel bills over the lifetimes of the improvements and measures installed between 2008 and 2017.

* * * Clean Energy Development Fund * * *

Sec. 7.  10 V.S.A. § 6523(d)(6) is added to read:

(6)  The sum of $20,000.00 shall be transferred annually from the clean energy development fund to the general fund to support the cost of the solar energy income tax credits.

     * * *  Residential Building Energy Standards (RBES) * * *

Sec. 8.  21 V.S.A. § 266(c) is amended to read:

(c)  Revision and interpretation of energy standards.  On or about January 1, 1999, and at least every three years thereafter, the The commissioner of public service shall amend and update the RBES, by means of administrative rules adopted in accordance with 3 V.S.A. chapter 25.  The commissioner shall ensure that appropriate revisions are made promptly after the issuance of updated standards for residential construction under the international energy conservation code (IECC).  The department of public service shall provide technical assistance and expert advice to the commissioner in the interpretation of the RBES and in the formulation of specific proposals for amending the RBES.  At least a year prior to final adoption of each required revision of the RBES, the department of public service shall convene an advisory committee to include one or more mortgage lenders, builders, building designers, utility representatives, and other persons with experience and expertise, such as consumer advocates and energy conservation experts.  The advisory committee may provide the commissioner with additional recommendations for revision of the RBES.

* * * Commercial Building Energy Standards * * *

Sec. 9.  21 V.S.A. § 268 is amended to read:

§ 268.  COMMERCIAL BUILDING ENERGY STANDARDS

(a)  Definitions.  For purposes of this subchapter, “commercial buildings” means all buildings that are not residential buildings as defined in subdivision 266(a)(2) of this title or farm structures as defined in 24 V.S.A. § 4413.

(1)  The following commercial buildings, or portions of those buildings, separated from the remainder of the building by thermal envelope assemblies complying with this section shall be exempt from the building thermal envelope provisions of the standards:

(A)  Those that do not contain conditioned space.

(B)  Those with a peak design rate of energy usage less than an amount specified in the commercial building energy standards (CBES) adopted under subsection (b) of this section.

(2)  These standards shall not apply to equipment or portions of building energy systems that use energy primarily to provide for industrial, or manufacturing, or commercial processes.

(b)  Adoption of commercial building energy standards.  Commercial building construction with respect to which no state or any local building permit application or application for construction plan approval by the commissioner of public safety pursuant to 20 V.S.A. chapter 173 has been submitted on or after January 1, 2007 shall be designed and constructed in substantial compliance with the standards contained in the 2005 Vermont Guidelines for Energy Efficient Commercial Construction, as those standards may be amended by administrative rule adopted by the commissioner of public service.

(c)  Revision and interpretation of energy standards.  On or about January 1, 2009, and at least every three years thereafter, the commissioner of public service shall amend and update the CBES by means of administrative rules adopted in accordance with 3 V.S.A. chapter 25.  The commissioner shall ensure that appropriate revisions are made promptly after the issuance of updated standards for commercial construction under the international energy conservation code (IECC).    At least a year prior to final adoption of each required revision of the CBES, the department of public service shall convene an advisory committee to include one or more mortgage lenders,; builders,; building designers,; architects; civil, mechanical, and electrical engineers; utility representatives,; and other persons with experience and expertise, such as consumer advocates and energy conservation experts.  The advisory committee may provide the commissioner of public service with additional recommendations for revision of the CBES.

(1)  Any amendments to the CBES shall be:

(A)  Consistent with duly adopted state energy policy, as specified in 30 V.S.A. § 202a.

(B)  Evaluated relative to their technical applicability and reliability.

(2)  Each time the CBES are amended by the commissioner of public service, the amended CBES shall become effective upon a date specified in the adopted rule, a date that shall not be less than three months after the date of adoption.  Persons submitting an application for any state or local permit authorizing commercial construction, or an application for construction plan approval by the commissioner of public safety pursuant to 20 V.S.A. chapter 173, before the effective date of the amended CBES shall have the option of complying with the applicable provisions of the earlier or the amended CBES.  After the effective date of the original or the amended CBES, any person submitting such an application for any state or local permit authorizing commercial construction in an area subject to the CBES shall comply with the most recent version of the CBES.

(3)  The advisory committee convened under this subsection, in preparing for the CBES updates, shall advise the department of public service with respect to the coordination of the CBES amendments with existing and proposed demand‑side management programs offered in the state.

(4)  The commissioner of public service is authorized to adopt rules interpreting and implementing the CBES.

(5)  The commissioner of public service may grant written variances or exemptions from the CBES or rules adopted under this section where strict compliance would entail practical difficulty or unnecessary hardship, or is otherwise found unwarranted, provided that:

(A)  Any such variance or exemption shall be consistent with state energy policy, as specified in 30 V.S.A. § 202a.

(B)  Any petitioner for such a variance or exemption can demonstrate that the methods, means, or practices proposed to be taken in lieu of compliance with the rule or rules provide, in the opinion of the commissioner, equal energy efficiency to that attained by compliance with the rule or rules.

(C)  A copy of any such variance or exemption shall be recorded by the petitioner in the land records of the city or town in which the building is located.

(D)  A record of each variance or exemption shall be maintained by the commissioner, together with the certifications received by the commissioner.

(d)  Certification requirement.  Commercial

(1)  The design of commercial buildings shall be certified by the primary designer as compliant with CBES in accordance with this subsection, except as compliance is excused by a variance or exemption issued under subdivision (c)(5) of this sectionA certification may be issued by a builder, a licensed professional engineer, or a licensed architect  If applicable law requires that the primary designer be a licensed professional engineer, licensed architect, or other licensed professional, a member of a pertinent licensed profession shall issue this certification.  If one or more licensed professional engineers or licensed architects is involved in the design of the project, one of these licensees shall issue this certificate.  If certification is not issued by a licensed professional engineer or a licensed architect is not involved in designing the project, it certification shall be issued by the builder.  Any certification shall be accompanied by an affidavit and shall certify that the designer acted in accordance with the designer’s professional duty of care in designing the building, and that the commercial construction meets building was designed in substantial compliance with the requirements of the CBES.  The department of public service will develop and make available to the public a certificate that lists key features requirements of the CBES, sets forth certifying language in accordance with this subdivision, and requires disclosure of persons relied upon by the primary designer who have contracted to indemnify the primary designer for damages arising out of that reliance.  Any person certifying under this subdivision shall use this certificate or one substantially like it to certify compliance with CBES satisfy these certification obligations.  Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas.  The certificate shall certify that the building has been constructed in compliance with the requirements of the CBES.  The person certifying under this subsection shall provide a copy of each certificate to the department of public service and shall assure that a certificate is recorded and indexed in the town land records.  A builder may contract with a licensed professional engineer or a licensed architect to issue certification and to indemnify the builder from any liability to the owner of the commercial construction caused by noncompliance with the CBES.  In certifying under this subsection, the certifying person may reasonably rely on one or more supporting affidavits received from other persons that contributed to the design affirming that the portions of the design produced by them were properly certifiable under this subsection.  The certifying person may contract for indemnification from those on which the person relies pursuant to this subdivision (1) against damages arising out of that reliance.  This indemnification shall not limit any rights of action of an aggrieved party.

(2)  The construction of a commercial building shall be certified as compliant with CBES in accordance with this subsection, except as compliance is excused by a variance or exemption issued under subdivision (c)(5) of this section.  This certification shall be issued by the general contractor, construction manager, or other party having primary responsibility for coordinating the construction of the subject building, or in the absence of such a person, by the owner of the building.  Any certification shall be accompanied by an affidavit and shall certify that the subject commercial building was constructed in accordance with the ordinary standard of care applicable to the participating construction trades, and that the subject commercial building was constructed substantially in accordance with the construction documents including the plans and specifications certified under subdivision (1) of this subsection for that building.  The department of public service will develop and make available to the public a certificate that sets forth certifying language in accordance with this subdivision, and that requires disclosure of persons who have been relied upon by the person with primary responsibility for coordinating the construction of the building and who have contracted to indemnify that person for damages arising out of that reliance.  The person certifying under this subdivision shall use that certificate or one substantially like it to satisfy these certification obligations.  Certification shall be issued by completing and signing a certificate and permanently affixing it to the outside of the heating or cooling equipment, to the electrical service panel located inside the building, or in a visible location in the vicinity of one of these three areas.  In certifying under this subdivision, the certifying person may reasonably rely on one or more supporting affidavits received from subcontractors or others engaged in the construction of the subject commercial building affirming that the portions of the building constructed by them were properly certifiable under this subdivision.  The certifying person may contract for indemnification from those on which the person relies pursuant to this subdivision (2) against damages arising out of that reliance. This indemnification shall not limit any rights of action of an aggrieved party.

(3)  Any person certifying under this subsection shall provide a copy of the person’s certificate and any accompanying affidavit to the department of public service.

(4)  A certificate issued pursuant to subdivision (1) of this subsection and a certificate issued pursuant to subdivision (2) of this subsection shall be conditions precedent to issuance by the commissioner of public safety (or a municipal official acting under 20 V.S.A. § 2736) of any final occupancy permit required by the rules of the commissioner of public safety for use or occupancy of a commercial building that is also a public building as defined in 20 V.S.A. § 2730(a).

(e)  Action Private right of action for damages against a certifier.

(1)  Except as otherwise provided in this subsection, a person aggrieved by noncompliance with this section another person’s breach of that other person’s representations contained in a certification or supporting affidavit issued or received as provided under subsection (d) of this section, within ten years after the earlier of completion of construction or occupancy of the affected commercial building or portion of that building, may bring a civil action in superior court against a person who has the an obligation of certifying compliance under subsection (d) of this section alleging breach of the representations contained in that person’s certification.  This action may seek injunctive relief, damages arising from the aggrieved party’s reliance on the accuracy of those representations, court costs, and reasonable attorneys’ fees in an amount to be determined by the court.  As used in this subdivision, “damages” means:

(A)  includes costs incidental to increased energy consumption; and

(B)  labor, materials, and other expenses associated with bringing the structure into compliance with CBES in effect on the date construction was commenced.

(2)  A person’s failure to affix the certification as required by this section shall not be an affirmative defense in such an action against the person.

(3)  The rights and remedies created by this section shall not be construed to limit any rights and remedies otherwise provided by law.

(4)  The right of action established in this subsection may not be waived by contract or other agreement.

(5)  It shall be a defense to an action under this subsection that either at the time of completion or at any time thereafter, the commercial building or portion of building covered by a certificate under subsection (d) of this section, as actually constructed, met or exceeded the overall performance standards established in the CBES in effect on the date construction was commenced.

(f)  Violation of section State or local enforcement.  Any person who falsely certifies knowingly makes a false certification under subsection (d) of this section, or any builder party who fails to certify under subsection (d) of this section when required to do so, shall be subject to a civil penalty of not more than $250.00 per day, up to $10,000.00 for each year the violation continuesEach violation shall constitute a separate offense, and each day that the violation continues shall constitute a separate offense.

(g)  Title validity not affected.  A defect in marketable title shall not be created by a failure to record a variance or exemption pursuant to subdivision (c)(5) of this section, by a failure to issue certification or a certificate, as required under subsection (d) of this section, or by a failure under that subsection to:  affix a certificate; or provide a copy of a certificate to the department of public service; or record and index a certificate in the town records.

* * * Smart Metering * * *

Sec. 10.  SMART METERING INVESTIGATION

(a)  The public service board shall continue its investigations of opportunities for Vermont electric utilities cost‑effectively to install advanced “smart” metering equipment capable of sending two‑way signals and sufficient to support advanced time‑of‑use pricing during periods of critical peaks or hourly differentiated time‑of‑use pricing. 

(b)  The scope of the investigation shall include the following:

(1)  The current status of implementing either advanced time‑of‑use rate designs or advanced metering by Vermont utilities.

(2)  Analysis of experience from other state jurisdictions and individual utility experience in planning and implementing programs that promote advanced time‑of‑use rate designs or advanced metering.

(3)  Opportunities for exploring ways to design pilot programs and share experience among Vermont utilities with the deployment of advanced meters and rate designs.

(4)  Analysis of all costs and benefits of installing advanced metering equipment, giving due consideration to the circumstances that differentiate Vermont utilities.

(5)  Analysis of opportunities for reducing rates in the short and long term or mitigating rate impacts of investments in advanced metering and ancillary equipment through advanced time‑of‑use rate designs enabled by these investments.

(6)  Analysis of constraints or barriers to implementing this subsection, or opportunities presented by further deferring plans or commitments toward advanced metering equipment or rates.

(7)  Analysis of all supporting and ancillary equipment, equipment standards, and efficiency programs necessary to ensure that customers are adequately and effectively empowered to use and respond cost‑effectively to price signals made possible through advanced metering equipment.

(c)  After investigation, in utility territories where the board concludes it appropriate and cost‑effective, the board shall require each Vermont utility to file plans for investment and deployment of appropriate technologies and plans and strategies for implementing advanced pricing with a goal of ensuring that all ratepayer classes have an opportunity to receive and participate effectively in advanced time‑of‑use pricing plans.

(d)  By December 31, 2008, the board shall issue a final report and plan for implementation. 

* * * Fuel Efficiency Fund * * *

Sec. 11.  30 V.S.A. § 203a is added to read:

§ 203a.  FUEL EFFICIENCY FUND

(a)  Fuel efficiency fund.  There is established the fuel efficiency fund to be administered by a fund administrator appointed by the board.  Balances in the fund shall be ratepayer funds, shall be used to support the activities authorized in this subdivision, and shall be carried forward and remain in the fund at the end of each fiscal year. These monies shall not be available to meet the general obligations of the state.  Interest earned shall remain in the fund.  The fund shall contain such sums as appropriated by the general assembly or as otherwise provided by law, in addition to:

(1)  net revenues above costs associated with payments from the New England Independent System Operator (ISO‑NE) for capacity savings resulting from the activities of an energy efficiency utility designated under subdivision 209(d)(2) of this title;

(2)  revenues from the sale of credits under the RGGI cap and trade program established under section 255 of this title;

(b)  Use of the fund.  The fuel efficiency fund shall be used to support the delivery of energy efficiency services to Vermont heating and process fuel consumers and to carry out cost‑effective efficiency measures and reductions in greenhouse gas emissions from those sectors.  These energy efficiency services shall be delivered by the service provider or providers selected by the public service department under section 235 of this title to perform these functions.

(c)  Report.  On or before January 15, 2010, and annually thereafter, the public service department shall report to the legislature on the expenditure of funds from the fuel efficiency fund to meet the public’s needs for energy efficiency services.

(d)  Department costs.  Up to five percent of amounts allocated to the public service department from the fund may be used for administrative costs directly related to the fuel efficiency fund.

* * * Efficiency Entity * * *

Sec. 12.  30 V.S.A. § 209(d) and (e) are amended to read:

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

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

(3)  In addition to its existing authority, the board may establish by order or rule a volumetric charge to customers for the support of energy efficiency programs that meet the requirements of section 218c of this title.  The charge shall be known as the energy efficiency charge, shall be shown separately on each customer’s bill, and shall be paid to a fund administrator appointed by the board and deposited into an electric efficiency fund.  When such a charge is shown, notice as to how to obtain information about energy efficiency programs approved under this section shall be provided in a manner directed by the board.  This notice shall include, at a minimum, a toll free telephone number, and to the extent feasible shall be on the customer’s bill and near the energy efficiency charge.  Balances in the electric efficiency fund shall be ratepayer funds, shall be used to support the activities authorized in this subdivision, and shall be carried forward and remain in the fund at the end of each fiscal year.  These monies shall not be available to meet the general obligations of the state.  Interest earned shall remain in the fund.  The board will annually provide the legislature with a report detailing the revenues collected and the expenditures made for energy efficiency programs under this section.

(4)  The charge established by the board pursuant to subdivision (3) of this subsection shall be in an amount determined by the board by rule or order that is consistent with the principles of least cost integrated planning as defined in section 218c of this title.  As circumstances and programs evolve, the amount of the charge shall be reviewed for unrealized energy efficiency potential and shall be adjusted as necessary in order to realize all reasonably available, cost‑effective energy efficiency savings.  In setting the amount of the charge and its allocation, the board shall determine an appropriate balance among the following objectives; provided, however, that particular emphasis shall be accorded to the first four of these objectives: reducing the size of future power purchases; reducing the generation of greenhouse gases; limiting the need to upgrade the state’s transmission and distribution infrastructure; minimizing the costs of electricity; providing efficiency and conservation as a part of a comprehensive resource supply strategy; providing the opportunity for all Vermonters to participate in efficiency and conservation programs; and the value of targeting efficiency and conservation efforts to locations, markets or customers where they may provide the greatest value.  The board, by rule or order, shall establish a process by which a customer may apply to the board for an exemption from some or all of the charges assessed under this subdivision. The board shall establish criteria by which these applications shall be measured.  Any such exemption shall extend for a period of time not to exceed one year.  In addition, the board may authorize exemptions only if, at a minimum, a customer demonstrates that, during the preceding year, it implemented an extraordinary amount of cost‑effective energy efficiency at the customer’s own expense or incurred extraordinary costs on those measures and the customer did not and will not receive reimbursement for those measures from the entity designated by the board under this section who pays an average annual energy efficiency charge of at least $5,000.00 may apply to the board to self‑administer energy efficiency through the use of an energy savings account which shall contain a percentage of the customer’s energy efficiency charge payments as determined by the board.  The remaining portion of the charge shall be used for systemwide energy benefits.  The board shall establish criteria for approval of these applications.

(5) Appointment of an entity under subdivision (2) of this subsection may be by contract or by an order of appointment.  An appointment, whether by order of appointment or by contract, may only be issued after notice and opportunity for hearing.  An order of appointment shall be for a limited duration not to exceed 12 years, although an entity may be reappointed by order or contract.  An order of appointment may include any conditions and requirements that the board deems appropriate to promote the public good.  For good cause, after notice and opportunity for hearing, the board may amend or revoke an order of appointment.

(6) Any entity appointed by order of appointment under subdivisions (2) and (5) of this subsection that is not an electric or gas utility already regulated under this title shall not be considered to be a company as defined under section 201 of this title, but shall be subject to the provisions of sections 18, 19, 20, 21, 30, 31, 32, 205, 206, 207, 208, 209(a), 219, 221, and 231(b) of this title, to the same extent as a company as defined under section 201 of this title.  The board and the department of public service shall have jurisdiction under those sections over the entity, its directors, receivers, trustees, lessees or other persons or companies owning or operating the entity and of all plants, equipment, and property of that entity used in or about the business carried on by it in this state as covered and included in this section.  This jurisdiction shall be exercised by the board and the department so far as may be necessary to enable them to perform the duties and exercise the powers conferred upon them by law. The board and the department each may, when they deem the public good requires, examine the plants, equipment, and property of any entity appointed by order of appointment under subdivisions (2) and (5) of this subsection.

(e)  The board shall:

(1)  Ensure that all retail consumers, regardless of retail electricity or, gas, or heating or process fuel provider, will have an opportunity to participate in and benefit from a comprehensive set of cost‑effective energy efficiency programs and initiatives designed to overcome barriers to participation.

(2)  Require that continued or improved efficiencies be made in the production, delivery, and use of energy efficiency services, including the use of compensation mechanisms for any energy efficiency entity appointed under subdivision (d)(2) of this section that are based upon verified savings in energy usage and demand, and other performance targets specified by the board.  The linkage between compensation and verified savings in energy usage and demand (and other performance targets) shall be reviewed and adjusted not less than triennially by the board.

(3)  Build on the energy efficiency expertise and capabilities that have developed or may develop in the state.

(4)  Promote program initiatives and market strategies that address the needs of persons or businesses facing the most significant barriers to participation.

(5)  Promote coordinated program delivery, including coordination with low income weatherization programs, other efficiency programs, and utility programs.

(6)  Consider innovative approaches to delivering energy efficiency, including strategies to encourage third party financing and customer contributions to the cost of efficiency measures.

(7)  Provide a reasonably stable multiyear budget and planning cycle and in order to promote program improvement, program stability, enhanced access to capital and personnel, improved integration of program designs with the budgets of regulated companies providing energy services, and maturation of programs and delivery resources.    

(8)  Approve programs, measures, and delivery mechanisms that reasonably reflect current and projected market conditions, technological options, and environmental benefits.

(9)  Provide for delivery of these programs as rapidly as possible, taking into consideration the need for these services, and cost‑effective delivery mechanisms.

(10)  Provide for the independent evaluation of programs delivered under subsection (d) of this section.

(11)  Require that any entity approved appointed by the board under subsection (d) of this section deliver board‑approved programs in an effective, efficient, timely, and competent manner and meet standards that are consistent with those in section 218c of this title, the board’s orders in public service board docket 5270, and any relevant board orders in subsequent energy efficiency proceedings.

(12)  Require verification, on or before January 1, 2003, and every three years thereafter, by an independent auditor of the reported energy and capacity savings and cost‑effectiveness of programs delivered by any entity appointed by the board to deliver energy efficiency programs under subdivision (d)(2) of this section.

(13)  Ensure that any energy efficiency program approved by the board shall be reasonable and cost‑effective.

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

(15)  Ensure that the energy efficiency programs implemented under this section are designed to make continuous and proportional progress toward attaining the overall state building efficiency goals established by 10 V.S.A. § 581, by promoting all forms of energy end‑use efficiency and comprehensive sustainable building design.

* * * Conservation Rates * * *

Sec. 13.  30 V.S.A. § 218(b) is amended to read:

(b)  The department of public service shall propose, and the board through the establishment of rates of return, rates, tolls, charges, or schedules shall encourage the implementation by electric and gas utilities of energy‑efficiency and load management measures which will be cost‑effective for the utilities and their customers on a life cycle cost basis.  The board shall approve rate designs to encourage the efficient use of natural gas and electricity, including consideration of the creation of an inclining block rate structure for residential rate customers with an initial block of low‑cost power available to all residences. 

(1)  To implement the requirements of this subsection, the public service board shall continue its investigation of the following:

(A)  the parameters for residential inclining block rate designs;

(B)  alternative rate designs, such as critical peak pricing programs or more widespread use of time‑of‑day rates, that would encourage more efficient use of electricity;

(C)  the possible inclusion of exemptions from otherwise applicable inclining block rates or rate designs to encourage efficiency for situations in which special health needs or another extraordinary situation presents such a significant demand for electricity that the board determines use of those rates would cause undue financial hardship for the customer;

(2)  By December 31, 2008, the board shall issue a report and plan for implementation based upon the results of its investigation.  The plan shall require each retail company to upgrade its rates as necessary to implement  new rate designs appropriate to encourage efficient energy use, which shall include residential inclining block rates, if the board determines that those rates would be appropriate, by a specified date, or as part of its next rate‑related appearance before the board, or according to a timetable otherwise specified by the board.  In implementing these rate designs, the board shall consider the appropriateness of phasing in the rate design changes to allow large users of energy a reasonable opportunity to employ methods of conservation and energy efficiency in advance of the full effect of the changes.

* * * Net Metering * * *

Sec. 14.  30 V.S.A. § 219a is amended to read:

§ 219a.  SELF‑GENERATION AND NET METERING

(a)  As used in this section:

(1)  “Customer” means a retail electric consumer who uses a net metering system.

(2)  “Net metering” means measuring the difference between the electricity supplied to a customer and the electricity fed back by a net metering system during the customer’s billing period:

(A)  using a single, nondemand meter or such other meter that would otherwise be applicable to the customer’s usage but for the use of net metering; or

(B)  on farm or group systems, using multiple meters as specified in this chapter.  The calculation will be made by converting all meters to a nondemand, nontime‑of‑day meter, and equalizing them to the tariffed kilowatt‑hour rate.

(3)  “Net metering system” means a facility for generation of electricity that:

(A)  is of no more than 15 250 kilowatts (AC) capacity, or is a farm system;

* * *

(E)(i)  employs a renewable energy source as defined in subdivision 8002(2) of this title; or

(ii)  is a qualified micro‑combined heat and power system of 20 kilowatts or fewer that meets the definition of combined heat and power in 10 V.S.A. § 6523(b) and may use any fuel source that meets air quality standards.

(4)  “Farm system” means a facility of no more than 150 250 kilowatts (AC) output capacity, except as provided in subdivision (k)(5) of this section, that generates electric energy on a farm operated by a person principally engaged in the business of farming, as that term is defined in Regulation 1.175‑3 of the Internal Revenue Code of 1986, from the anaerobic digestion of agricultural products, byproducts, or wastes, or other renewable sources as defined in subdivision (3)(E) of this subsection, intended to offset the meters designated under subdivision (g)(1)(A) of this section on the farm or has entered into a contract as specified in subsection (k) of this section.

(b)  A customer shall pay the same rates, fees, or other payments and be subject to the same conditions and requirements as all other purchasers from the electric company in the same rate‑class, except as provided for in this section, and except for appropriate and necessary conditions approved by the board for the safety and reliability of the electric distribution system.

* * *

(f)  Consistent with the other provisions of this title, electric energy measurement for net metering farm or group net metering systems shall be calculated in the following manner:

(1)  Net metering customers that are farm or group net metering systems may credit on‑site generation against all meters designated to the farm system or group net metering system under subdivision (g)(1)(A) of this section.

(2)  Electric energy measurement for farm or group net metering systems shall be calculated by subtracting total usage of all meters included in the farm or group net metering system from total generation by the farm or group net metering system.  If the electricity generated by the farm or group net metering system is less than the total usage of all meters included in the farm or group net metering system during the billing period, the farm or group net metering system shall be credited for any accumulated kilowatt‑hour credit and then billed for the net electricity supplied by the electric company, in accordance with the procedures in subsection (g) of this section.

(3)  If electricity generated by the farm or group net metering system exceeds the electricity supplied by the electric company:

(A)  The farm or group net metering system shall be billed for the appropriate charges for each meter for that month, in accordance with subsection (b) of this section.

(B)  Excess kilowatt‑hours generated during the billing period shall be added to the accumulated balance with this kilowatt‑hour credit appearing on the bill for the following billing period.

(C)  Any accumulated kilowatt‑hour credits shall be used within 12 months or shall revert to the electric company without any compensation to the farm or group net metering system.  Power reverting to the electric company under this subdivision (3) shall be considered SPEED resources under section 8005 of this title.

(g)(1)  In addition to any other requirements of section 248 of this title and this section and board rules thereunder, before a net metering farm or group net metering system including more than one meter may be formed and served by an electric company, the proposed net metering farm or group net metering system shall file with the board, with copies to the department and the serving electric company, the following information:

(A)  the meters to be included in the farm or group net metering system, which shall be associated with the farm buildings and residences owned or occupied by the person operating the farm or group net metering system, or the person’s family or farm employees, or other members of the group, identified by account number and location;

(B)  a method procedure for adding and removing meters included in the farm or group net metering system;

(C)  a designated person responsible for all communications from the farm or group net metering system to the serving electric company, for receiving and paying bills for any service provided by the serving electric company for the farm or group net metering system, and for receiving any other communications regarding the farm or group net metering system net metering; and

(D)  a binding process for the resolution of any disputes within the farm or group net metering system relating to net metering that does not rely on the serving electric company, the board, or the department.

(2)  The farm or group net metering system shall, at all times, maintain a written designation to the serving electric company of a person who shall be the sole person authorized to receive and pay bills for any service provided by the serving electric company, and for receiving to receive any other communications regarding the farm system, the group net metering system, or net metering.

(3)  The serving utility shall implement appropriate changes to the farm system or group net metering system within 30 days after receiving written notification from the designated person.  However, written notification of a change in the person designated under subdivision (2) of this subsection shall be effective upon receipt by the serving utility.  The serving utility shall not be liable for action based on such notification, but shall make any necessary corrections and bill adjustments to implement revised notifications.

(4)  Pursuant to subsection 231(a) of this title, after such notice and opportunity for hearing as the board may require, the board may revoke a certificate of public good issued to a farm or group net metering system.

(5)  A group net metering system may consist only of customers that are located within the service area of the same electric company.  Various buildings owned by a municipality may constitute a group net metering system.  If it determines that it would promote the general good, the board shall permit a noncontiguous group of net metering customers to comprise a group net metering system.

(h)(1)  An electric company:

(A)  Shall make net metering available to any customer using a net metering system, group net metering system, or farm system on a first‑come, first‑served basis until the cumulative output capacity of net metering systems equals 1.0 2.0 percent of the distribution company’s peak demand during 1996; or the peak demand during the most recent full calendar year, whichever is greater.  The board may raise the 1.0 2.0 percent cap.  In determining whether to raise the cap, the board shall consider the following:

(i)  the costs and benefits of net metering systems already connected to the system; and

(ii)  the potential costs and benefits of exceeding the cap, including potential short and long‑term impacts on rates, distribution system costs and benefits, reliability and diversification costs and benefits;

(B)  Shall allow net metering systems to be interconnected using a kilowatt‑hour meter capable of registering the flow of electricity in two directions or such other comparably equipped meter that would otherwise be applicable to the customer’s usage but for the use of net metering;

(C)  May, at its own expense, and with the written consent of the customer, install one or more additional meters to monitor the flow of electricity in each direction;

(D)  Shall Except as otherwise provided in this section, shall charge the customer a minimum monthly fee that is the same as for other customers of the electric distribution company in the same rate class, but shall not charge the customer any additional standby, capacity, interconnection, or other fee or charge;

(E)  May require a customer to comply with generation interconnection, safety, and reliability requirements, as determined by the public service board by rule or order, and may charge reasonable fees for interconnection, establishment, special metering, meter reading, accounting, account correcting, and account maintenance of net metering arrangements of greater than 15 kilowatt (AC) capacity;

(F)  May charge, if the capacity of the distribution system is insufficient for the designed generation, subject to determination by the board, a reasonable fee to cover the cost of electric company improvements necessary to distribute power;

(G)  May require that all meters included within a farm or group net metering system be read on the same billing cycle;

(H)  May book and defer, with carrying costs, additional incremental costs, to the extent that such costs are not recovered through charges, authorized in subdivisions (D), (E), and (F) of this subdivision (1), directly related to implementing net metering of greater than 15 kilowatt (AC) capacity;

(I)  Shall receive from a farm system, which is designed to produce less energy than the total annual load of the meters identified in subdivision (g)(1)(A) of this section, any tradeable renewable credits for which the farm  system is eligible.  All other farm systems shall retain any tradeable renewable credits for which the farm is eligible;

(2)  All such requirements shall be pursuant to and governed by a tariff approved by the board and any applicable board rule, which tariffs and rules shall be designed in a manner reasonably likely to facilitate net metering.

* * *

(j)  Notwithstanding the provisions of this section that define a net metering system as being of no more than 15 kilowatts (AC) capacity, the board may allow net metering for up to ten systems per year for customers that produce more than 15 kilowatts (AC) capacity, but do not produce more than 150 kilowatts of power and are not farm systems.

(k)  Notwithstanding the provisions of subsections (f) and (g) of this section, an electric company may contract to purchase all or a portion of the output products from a farm or group net metering system, provided:

(1)  the farm or group net metering system obtains a certificate of public good under the terms of subsections (c) and (d) of this section;

(2)  any contracted power shall be subject to the limitations set forth in subdivision (h)(1) of this section;

(3)  any contract shall be subject to interconnection and metering requirements in subdivisions (h)(1)(C) and (i)(2) and (3) of this section;

(4)  any contract may permit all or a portion of the tradeable renewable energy credits for which the farm system is eligible to be transferred to the electric company;

(5)  the output capacity of a system may exceed 150 250 kilowatts, provided:

(A)  the contract assigns the amount of power to be net metered;

(B)  the net metered amount does not exceed 150 250 kilowatts; and

(C)  only the amount assigned to net metering is assessed to the cap provided in subdivision (h)(1)(A) of this section.

(l)  With regard to an application under section 248 of this title for construction of a single net metered wind turbine that is less than 150 feet in height, there shall be a rebuttable presumption that there is no undue adverse effect on aesthetics if:

(1)(A)  the turbine would not occupy a significant portion of or appear in the approximate center of distant vistas or scenic focal points when viewed from one or more identified public use areas that have direct views to the project and in which natural scenery is an important part of the experience; and

(B)  the turbine would not occupy a significant portion of or appear in the approximate center of distant views or scenic focal points when viewed from indoor primary use areas with direct views to the project and from which natural scenery is an important part of the experience or when viewed from existing outdoor primary use areas of neighboring residences, from which areas, natural scenery is an important part of the experience; or

(2)  with respect to all such identified public use areas and neighboring residential primary use areas for which the turbine would occupy a significant portion of or appear in the approximate center of distant views or scenic focal points, the turbine would be located at least 1000 feet from each area.

* * * Heating Efficiency Program * * *

Sec. 15.  30 V.S.A. § 235 is added to read:

§ 235.  HEATING AND PROCESS FUEL EFFICIENCY PROGRAM

(a) After consultation with fuel dealers, any appointed efficiency entity, financial institutions, the board, representatives of the weatherization program, and other stakeholders, the department of public service shall propose, develop, solicit and monitor any combination of energy efficiency and conservation programs, measures, and compensation mechanisms to provide fuel efficiency services on a statewide basis for Vermont heating or process fuel consumers.  The department shall select one or more service providers as needed and pursuant to a competitive bidding process to implement those programs, measures, or compensation mechanisms by means of performance based contracts that are based upon verified savings in energy usage and demand, and other performance targets.  Those programs, measures, and compensation mechanisms shall include fuel efficiency services that:

(1)  produce whole building and process heat efficiency, regardless of the fuel type used;

(2)  facilitate appropriate fuel switching; and

(3)  promote coordination, to the fullest practical extent, with the electric efficiency programs established and administered pursuant to this chapter, as well as with low income weatherization programs and any utility energy efficiency programs.

(b)  Prior to the department of public service entering a contract with service providers under this section and after such notice and hearings as it may require, the public service board shall review the programs, measures, and compensation mechanisms selected by the department to determine whether these programs, measures, and compensation mechanisms promote the public good.  The board may alter or impose conditions on any combination of these programs, measures, or compensation mechanisms as it deems necessary to promote the public good. If the department thereafter changes the programs, measures, or compensation mechanisms, it shall request review under this section by the board prior to implementing those changes.

(c)  Funding for the program established under this section shall be provided from the fuel efficiency fund established under section 203a of this title.

(d)  The department, subject to the oversight of the board, shall:

(1)  Ensure that all retail consumers, regardless of retail electricity, gas, or heating or process fuel provider, will have an opportunity to participate in and benefit from a comprehensive set of cost‑effective energy efficiency programs and initiatives designed to overcome barriers to participation.

(2)  Require that continued or improved efficiencies be made in the production, delivery, and use of energy efficiency services, including the use of compensation mechanisms that are based upon verified savings in energy usage and demand, and other performance targets specified by the board.  The linkage between compensation and verified savings in energy usage and demand (and other performance targets) shall be reviewed and adjusted not less than triennially by the board.

(3)  Build on the energy efficiency expertise and capabilities that have developed or may develop in the state.

(4)  Promote program initiatives and market strategies that address the needs of persons or businesses facing the most significant barriers to participation.

(5)  Promote coordinated program delivery, including coordination with low income weatherization programs, other efficiency programs, and utility programs.

(6)  Consider innovative approaches to delivering energy efficiency, including strategies to encourage third party financing and customer contributions to the cost of efficiency measures.

(7)  Provide a reasonably stable multiyear budget and planning cycle in order to promote program improvement, program stability, enhanced access to capital and personnel, improved integration of program designs with the budgets of regulated companies providing energy services, and maturation of programs and delivery resources.   

(8)  Develop and approve programs, measures, and delivery mechanisms that reasonably reflect current and projected market conditions, technological options, and environmental benefits.

(9)  Provide for delivery of these programs as rapidly as possible, taking into consideration the need for these services, and cost‑effective delivery mechanisms.

(10)  Provide for the independent evaluation of programs delivered under this section.

(11)  Require that any service provider under this section deliver programs in an effective, efficient, timely, and competent manner and meet standards that are consistent with those in section 218c of this title, the board’s orders in public service board docket 5270, and any relevant board orders in subsequent energy efficiency proceedings.

(12)  Require verification, on or before January 1, 2011, and every three years thereafter, by an independent auditor of the reported energy and capacity savings and cost‑effectiveness of programs delivered by any entity selected to be a service provider under this section.

(13)  Ensure that any energy efficiency program implemented under this section shall be reasonable and cost‑effective.

(14)  Consider the impact of programs delivered under this section on the amount of fuel used, fuel prices, and fuel bills.

(15)  Ensure that the energy efficiency programs implemented under this section are designed to make continuous and proportional progress toward attaining the overall state building efficiency goals established by 10 V.S.A. § 581, by promoting all forms of energy end‑use efficiency and comprehensive sustainable building design.

(e)  Any disputes under this section shall be resolved by the board.

Sec. 16.  SELECTION OF SERVICE PROVIDERS 

The department of public service shall proceed with all deliberate speed to implement the provisions of 30 V.S.A. § 235.  It shall be a goal to issue RFP’s by no later than the end of October, 2008.  Initial service providers shall be selected no later than April 1, 2009.

* * * Temporary Meteorological Stations * * *

Sec. 17.  30 V.S.A. § 246 is added to read:

§ 246.  TEMPORARY SITING OF METEOROLOGICAL STATIONS

(a)  For purposes of this section, a “meteorological station” consists of one temporary tower, which may include guy wires, and attached instrumentation to collect and record wind speed, wind direction, and atmospheric conditions.

(b)  The public service board shall establish by rule or order standards and procedures governing application for, and issuance or revocation of, a certificate of public good for the temporary installation of one or more meteorological stations under the provisions of section 248 of this title.  A meteorological station shall be deemed to promote the public good of the state if it is in compliance with the criteria of this section and the board rules or orders.  An applicant for a certificate of public good for a meteorological station shall be exempt from the requirements of subsection 202(f) of this title.

(c)  In developing rules or orders, the board:

(1)  Shall develop a simple application form and shall require that completed applications be filed with the board, the department of public service, the agency of natural resources, and the municipality in which the meteorological station is proposed to be located.

(2)  Shall require that if no objections are filed within 30 days of the board’s receipt of a complete application and the board determines that the applicant has met all of the requirements of section 248 of this title, the certificate of public good shall be issued for a period that the board finds reasonable, but in no event for more than five years.  Upon request of an applicant, the board may renew a certificate of public good.  Upon expiration of the certificate, the meteorological station and all associated structures and material shall be removed, and the site shall be restored substantially to its preconstruction condition.

(3)  May waive the requirements of section 248 of this title that are not applicable to meteorological stations, including criteria that are generally applicable to public service companies as defined in this title.  The board shall not waive review regarding whether construction will have an undue adverse effect on esthetics, historic sites, air and water purity, the natural environment, and the public health and safety.

(4)  Shall seek to simplify the application and review process, as appropriate, in conformance with this section.

(d)  A proposal for decision shall be issued within five months of when the board receives a completed application for a certificate of public good for the temporary installation of one or more meteorological stations under the provisions of section 248 of this title.

* * * Regional Greenhouse Gas Initiative (RGGI) * * *

Sec. 18.  30 V.S.A. § 255 is amended to read:

§ 255.  REGIONAL COORDINATION TO REDUCE GREENHOUSE

     GASES

(a)  Legislative findings.  The general assembly finds:

(1)  There is a growing scientific consensus that the increased anthropogenic emissions of greenhouse gases are enhancing the natural greenhouse effect, resulting in changes in the earth’s climate.

(2)  Climate change poses serious potential risks to human health and terrestrial and aquatic ecosystems globally, regionally, and in Vermont.

(3)  A carbon constraint on fossil fuel-fired electricity generation and the development of a CO2 allowance trading mechanism will create a strong incentive for the creation and deployment of more efficient fuel-burning technologies, renewable resources, and end-use efficiency resources and will lead to lower dependence on imported fossil fuels.

(4)  Absent federal action, a number of states are taking actions to work regionally to reduce power sector carbon emissions.

(5)  Vermont has joined with at least six other states to design the Regional Greenhouse Gas Initiative (RGGI), and, in 2005, Vermont’s governor signed a memorandum of understanding (MOU) signaling Vermont’s intention to develop rules and programs to participate in RGGI.

(6)  It is crucial to manage Vermont’s implementation of RGGI and its consumption of fossil fuels for residential and commercial heating, and industrial processes, so as to maximize the state’s contribution to lowering carbon emissions while:

(A)  minimizing impacts on electric system reliability and unnecessary costs to Vermont power energy consumers;

(B)  minimizing the costs and the emissions resulting from the use of petroleum-based fuels for space heating and process heating for residential, commercial, and industrial purposes.

(7)  The accelerated deployment of low-cost process, thermal and electrical energy efficiency and, the strategic use of low- and zero-carbon generation, and the selective use of switching fuel sources are the best means to achieve these goals.

(8)  It is crucial that funds made available from operation of a regional carbon credits cap and trade system be devoted to the benefit of Vermont power energy consumers through investments in a strategic portfolio of energy efficiency, weatherization, and low-carbon generation resources.

(b)  Cap and trade program creation.

(1)  The agency of natural resources and the public service board shall, through appropriate rules and orders, establish a carbon cap and trade program that will limit and then reduce the total carbon emissions released by major electric generating stations that provide electric power to Vermont utilities and end-use customers. 

(2)  Vermont rules and orders establishing a carbon cap and trade program shall be designed so as to permit the holders of carbon credits to trade them in a regional market proposed to be established through the RGGI.

(c)  Allocation of tradable carbon credits.

(1)  The secretary of natural resources, by rule, shall establish a set of annual carbon budgets for emissions associated with the electric power sector in Vermont consistent with the 2005 RGGI MOU, including any amendments to that MOU, and on a reciprocal basis with the other states participating in the RGGI process.

(2)  In order to provide the maximum long-term benefit to Vermont electric consumers, particularly benefits that will result from accelerated and sustained investments in energy efficiency and other low-cost,

low-carbon power system, building envelope, and other investments, the public service board, by rule or order, shall establish a process to allocate 100 percent of the Vermont statewide budget of tradable power sector carbon credits and the proceeds from the sale of those credits through allocation to one or more trustees acting on behalf of consumers in accordance with the following principles.  To the extent feasible, the allocation plan shall accomplish the following goals:

(A)  minimize windfall financial gains to power generators as a result of the operation of the cap and trade program, considering both the costs that generators may incur to participate in the program and any power revenue increases they are likely to receive as a result of changes in regional power markets;

(B)  employ an administrative structure that will enable program managers to perform any combination of holding, banking, and selling carbon credits in regional, national, and international carbon credit markets in a financially responsible and market-sensitive fashion, and provide funds to defray the reasonable costs of the program trustee or trustees and Vermont’s pro-rata share of the costs of the RGGI regional organization;

(C)  optimize the revenues received from the management and sale of carbon credits for the benefit of Vermont electric customers energy consumers and the Vermont economy;

(D)  minimize any incentives from operation of the cap and trade program for Vermont utilities to increase the overall carbon emissions associated with serving their customers;

(E)  build upon existing regulatory and administrative structures and programs that lower power and heating costs, improve efficiency, and lower the state’s carbon profile of the state’s power supply while minimizing adverse impacts on electric system reliability and unnecessary costs to Vermont power energy consumers, and minimizing the costs and the emissions resulting from the use of petroleum-based fuels for space heating and process heating for residential, commercial, and industrial purposes;

(F)  ensure that carbon credits allocated under this program and revenues associated with their sale remain power system public assets managed for the benefit of electric the state’s consumers, particularly benefits that will result from accelerated and sustained investments in energy efficiency and other low-cost, low-carbon power, or heating system or building envelope investments;

(G)  where practicable, support efforts recommended by the agency of natural resources or the department of public service to stimulate or support investment in the development of innovative power sector carbon emissions abatement technologies that have significant carbon reduction potential.

(d)  Appointment of consumer trustees.  The public service board, by rule, order, or competitive solicitation, may appoint one or more consumer trustees to receive, hold, bank, and sell tradable carbon credits created under this program.  Trustees may include Vermont electric distribution utilities, the fiscal agent collecting and disbursing funds to support the statewide efficiency utility, or a financial institution or other entity with the expertise and financial resources to manage a portfolio of carbon credits for the long-term benefit of Vermont energy consumers.  Proceeds from the sale of carbon credits shall be deposited into the fuel efficiency fund established under section 203a of this title.

(e)  Reports.  By January 15 of each year, commencing in 2007, the department of public service in consultation with the agency of natural resources and the public service board shall provide to the house and senate committees on natural resources and energy, the senate committee on finance, and the house committee on commerce a report detailing the implementation and operation of RGGI and the revenues collected and the expenditures made under this section, together with recommended principles to be followed in the allocation of funds.

* * * Renewable Energy Pricing and Portfolio Standards * * *

Sec. 19.  30 V.S.A. § 8002(4) is amended to read:

(4)  “New renewable energy” means renewable energy produced by a generating resource coming into service after December 31, 2004.  This may include the additional energy from an existing renewable facility retrofitted with advanced technologies or otherwise operated, modified, or expanded to increase the kwh output of the facility in excess of an historical baseline established by calculating the average output of that facility for the 10‑year period that ended December 31, 2004.  If the production of new renewable energy through retrofitting changes in operations, modification or expansion involves combustion of the resource, the system also must result in an incrementally higher level of energy conversion efficiency or significantly reduced emissions.  For the purposes of this chapter, renewable energy refers to either “existing renewable energy” or “new renewable energy.”

Sec. 20.  30 V.S.A. § 8003 is amended to read:

§ 8003.  RENEWABLE ENERGY PRICING

(a)  Upon petition of an electric company subject to this title, upon request of the department of public service, or on its own initiative, the public service board may approve one or more renewable pricing programs for one or more electric utilities; provided, however, in the case of a municipal plant or department formed under local charter or chapter 79 of this title, or an electric cooperative formed under chapter 81 of this title, any renewable pricing program approved by the board shall also be approved by a majority of the voters of a municipality or cooperative voting upon the question at a duly warned annual or special meeting held for that purpose.  Unless the board finds good cause to exempt a utility, by no later than July 1, 2009, each electric utility, municipal department formed under local charter or chapter 79 of this title, and each electric cooperative formed under chapter 81 of this title shall implement a renewable energy pricing program under this section for its customers, or shall offer customers the option of making a voluntary contribution to the Vermont clean energy development fund established under 10 V.S.A. § 6523.  Such renewable energy pricing programs may include, but are not limited to, tariffs, standard special contracts, or other arrangements whose purpose is to increase the company’s reliance on, or the customer’s support of, renewable sources of energy or the type and quantity of renewable energy resources available.

* * *

(f)  Renewable pricing programs offered by a company shall be available to such customer classes as the board may determine.

(g)  The board shall consider the following factors in deciding whether and upon what conditions to approve a proposed renewable energy pricing program:

(1)  minimization of marketing and administrative expenses;

(2)  auditing or certification of sources of energy or tradeable renewable energy credits;

(3)  marketing and promotion plans;

(4)  effectiveness of the program in meeting the goals of promoting renewable energy generation and public understanding of renewable energy sources in Vermont;

(5)  retention by the program of renewable energy production incentives, tax incentives and other incentives earned or otherwise obtained by energy resources acquired pursuant to or as part of a renewable energy pricing program approved under this section to reduce the cost of any premiums paid under this section; and

(6)  costs imposed on nonparticipating customers arising on account of the implementation of the voluntary renewable energy pricing program.

Sec. 21.  30 V.S.A. § 8004(e) is amended to read:

(e)  In lieu of, or in addition to purchasing tradeable renewable energy credits to satisfy the portfolio requirements of this section, a retail electricity provider in this state may pay to a renewable energy fund established by the public service board the Vermont clean energy development fund established under 10 V.S.A. § 6523 an amount per kilowatt hour as established by the board.  As an alternative, the board may require any proportion of this amount to be paid to the energy conservation fund established under subsection 209(d) of this title.

* * * SPEED Program * * *

Sec. 22.  30 V.S.A. § 8005 is amended to read:

§ 8005.  SUSTAINABLY PRICED ENERGY ENTERPRISE 

              DEVELOPMENT (SPEED) PROGRAM

* * *

(b)  The SPEED program shall be established, by rule, order, or contract, by the public service board by January 1, 2007.  As part of the SPEED program, the public service board may, and in the case of subdivisions (2) and (3) of this subsection shall:

* * *

(2)  allow the developer of a facility that is one megawatt or less, and is a qualifying SPEED resource or a nonqualifying SPEED resource, to sell that power under a long term contract that is established at a specified margin below the hourly spot market price determined by the board to be adequate to promote SPEED resource development while remaining consistent with the principles of least‑cost energy services under section 218c of this title.  For purposes of this section, a long‑term contract should be 15 years or greater unless the board finds good cause for a shorter term;

(3)  encourage Vermont’s retail electricity providers to secure long‑term contracts, at stable prices, for renewable energy that are anticipated to be below the long‑term market price, over the lives of the projects qualifying SPEED resources.  The board shall create a standard contract price, or a set of maximum and minimum provisions, or both, for qualifying SPEED resources over 1 MW of capacity.  In setting a standard contract price for a qualifying SPEED resource, the board shall consider the goal of developing qualified SPEED resources, least cost provision of energy service under section 218c of this title, and the impact on electric rates.  The board may create a competitive bid process through which to select a portion of those contracts;

* * *

(d)(1)  The public service board shall meet on or before January 1, 2012, and open a proceeding, and issue findings determining to determine the total amount of qualifying SPEED resources that have come into service or are projected to come into service during the period of time between January 1, 2005 and January 1, 2013 been supplied to Vermont retail electricity providers or have been issued a certificate of public good.  If the board finds that the amount of qualifying SPEED resources coming into service during that time or having been issued a certificate of public good after January 1, 2005 and before July 1, 2012 equals or exceeds total statewide growth in electric energy usage retail sales during the period of time between January 1, 2005 and January 1, 2012 that time, and in addition, at least five percent of the 2005 total statewide electric retail sales is provided by qualified SPEED resources or would be provided by qualified SPEED resources that have been issued a certificate of public good, or if it finds that the amount of qualifying SPEED resources equals or exceeds 10 percent of total statewide electric energy usage retail sales for calendar year 2005, the portfolio standards established under this chapter shall not be in force.  The board shall make its determination by July 1, 2012 January 1, 2013.  If the board finds that the goal established has not been met, one year after the board’s determination the portfolio standards established under subsection 8004(b) of this title shall take effect.

(2)  A state goal is to assure that 20 percent of total statewide electric retail sales before July 1, 2017 shall be generated by speed resources.  The public service board shall report to the house and senate committees on natural resources and energy and to the joint energy committee by December 31, 2011 with regard to the state’s progress in meeting this goal.  In addition, the board shall report to the house and senate committees on natural resources and energy and to the joint energy committee by December 31, 2013 with regard to the state’s progress in meeting this goal and, if necessary, shall include any appropriate recommendations for measures that will make attaining the goal more likely.

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

* * *

* * * Municipal Tax Exemptions * * *

Sec. 23.  32 V.S.A. § 3845 is amended to read:

§ 3845.  Alternate energy sources

* * *

(b)  For the purposes of this section alternate energy sources includes any plant, structure or facility used for the generation of electricity or production of energy used on the premises for private, domestic or agricultural purposes, no part of which may be for sale or exchange to the public.  The term shall include, but not be limited to grist mills, windmills, facilities for the collection of solar energy or the conversion of organic matter to methane, net metering systems regulated by the public service board under 30 V.S.A. § 219a, and all component parts thereof including land upon which the facility is located, not to exceed one‑half acre.

* * * Wind‑Powered Electric Generating Facilities * * *

Sec. 24.  32 V.S.A. § 5401(10)(J) is added to read:

(10)  “Nonresidential property” means all property except:

* * *

(J)  Buildings and fixtures subject to the tax on wind-powered electric generating facilities under section 5402c of this title.

Sec. 25.  32 V.S.A. § 5402c is added to read:

§ 5402c.  WIND‑POWERED ELECTRIC GENERATING FACILITIES TAX

(a)  A facility certified by the commissioner of public service as a facility which produces electrical energy for resale, generated solely from wind power, which has an installed capacity of at least five megawatts, which was placed in service after January 1, 2007, and which holds a valid certificate of public good issued under 30 V.S.A. § 248, shall be assessed an alternative education property tax on its buildings and fixtures used directly and exclusively in the generation of electrical energy from wind power.

(b)  The tax shall be imposed at a rate per kWh of electrical energy produced by the certified facility, as determined by the public service department for the six months ending April 30 and the six months ending October 31 each year.  The rate of the tax shall be $0.003.

(c)  In no case shall the tax imposed for any six‑month period be less than an amount equal to the rate per kWh imposed by this subsection multiplied by the number of kWh that would be generated if the facility operated at a 15 percent capacity factor.

(d)  The tax imposed by this section shall be paid to the commissioner of taxes by the person or entity then owning or operating the certified facility, by December 1 for the period ending October 31 and by June 1 for the period ending April 30, for deposit into the education fund.  A person or entity failing to make returns or pay the tax imposed by this section within the time required shall be subject to and governed by the provisions of sections 3202 and 3203 and subchapters 8 and 9 of chapter 151 of this title.

(e)  Unless buildings and fixtures are subject to tax under this section, they shall remain subject to taxation under section 5402 of this title.  Buildings and fixtures subject to the education property tax under this section shall not be taken into account in determining the common level of appraisal for the municipality.

Sec. 26.  MUNICIPAL PROPERTY TAXES UNAFFECTED

Application of alternative education property tax to a wind-powered electric generating facility under 32 V.S.A. § 5402c shall have no effect upon the assessment of municipal taxes upon that facility by any municipality in this state.

* * * Business Energy Credit * * *

Sec. 27.  32 V.S.A. § 5822(c)(1)(B) and (d) are amended to read:

(c)  The amount of tax determined under subsection (a) of this section shall be:

(1)  increased by 24 percent of the taxpayer’s federal tax liability for the taxable year for the following:

* * *

(B)  recapture of federal investment tax credit and increased by 76 percent of the Vermont‑property portion of the business solar energy investment tax credit component of the federal investment tax credit recapture for the taxable year;

(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:  elderly and permanently totally disabled credit, investment tax credit, and child care and dependent care credits.  A taxpayer shall also be entitled to a credit against the tax imposed under this section of 76 percent of the Vermont‑property portion of the business solar energy investment tax credit component of the federal investment tax credit allowed against the taxpayer’s federal income tax for the taxable year under Section 48 of the Internal Revenue Code.

Sec. 28.  32 V.S.A. § 5930z is added to read:

§ 5930z.  Pass‑Through of Federal Energy Credit for

               Corporations

(a)  A taxpayer of this state shall be eligible for a credit against the tax imposed under section 5832 of this title in an amount equal to 100 percent of the Vermont‑property portion of the business solar energy investment tax credit component of the federal investment tax credit allowed against the taxpayer’s federal income tax for the taxable year under Section 48 of the Internal Revenue Code.

(b)  Any taxpayer who has received a credit under subsection (a) of this section in any prior year shall increase its corporate income tax under this chapter by the amount of the Vermont‑property portion of the business solar energy investment tax credit component of the federal investment tax credit recapture for the taxable year.

Sec. 29.  EFFECTIVE DATE OF BUSINESS ENERGY TAX CREDITS

Secs. 27 and 28 of this act (business energy tax credits) shall apply to taxable year 2009 and after.

* * * Weatherization * * *

Sec. 30.  33  V.S.A. § 2501(c) is amended to read:

(c) All balances in the fund at the end of any fiscal year shall be carried forward and remain part of the fund. Interest earned by the fund shall be deposited into the fund. Disbursements from the fund shall be made by the state treasurer on warrants drawn by the commissioner of finance and management.  Disbursements may be made from the fund only to support the programs established by this chapter or otherwise as authorized by this chapter.

Sec. 31.  33 V.S.A. § 2502 is amended to read:

§ 2502.  HOME WEATHERIZATION ASSISTANCE PROGRAM

(a)  The director of the state office of economic opportunity shall administer a home weatherization assistance program under such rules, regulations, funding and funding requirements as may be imposed by federal law.

(b)  In addition, the director shall supplement, or supplant, any federal program with a state home weatherization assistance program providing:.

(1)  The state program shall provide an enhanced weatherization assistance amount exceeding the federal per unit limit allowing amounts up to an average of $3,000.00 $6,000.00 per unit pursuant to rules adopted by the director allocating additional per unit amounts allocated on a cost-effective basis.  In units where costs exceed the allowable average by more than 25 percent, prior approval of the director of the state economic opportunity office shall be required before work commences.  This amount shall be adjusted annually by increasing the last year's amount by the lesser of

(A)  the percentage increase in the Consumer Price Index for the previous year; or

(B)  three percent;.

(2)  The state program shall provide amounts for low income customers utilizing any high operating cost fuel, to convert to another fuel source under rules adopted by the director based on the cost effectiveness of the converted facility over the life cycle of the equipment.

(3)  The director, in collaboration with the weatherization service providers and other stakeholders, shall develop the state program so that it will include:

(A)  Facilitating the development and implementation of a statewide common energy-audit tool or tools that work well on all Vermont housing, including multi-family buildings.

(B)  With regard to multifamily buildings, requiring either of the following requirements to be met:

(i)  at least 25 percent or more of the tenants in the building are eligible for the weatherization program; or

(ii)  at least 50 percent of the units are weatherization affordable, and at least one tenant of the building has applied for the weatherization program and has been determined to be eligible.  For purposes of this subdivision, “weatherization affordable” means a unit having a rent that is established at less than 30 percent of the income level established by computing 60 percent of the area median income level or 60 percent of the state median income level, whichever is higher, for the relevant household size.  Relevant household size means the number of bedrooms in the unit, plus one.

(C)  Establishing program eligibility levels at 60 percent of the area median income, or 60 percent of the state median income, whichever is higher.

(D)  Eliminating the lien requirements on weatherized rental properties, so long as the landlord executes an appropriate contract which may have a term that exceeds one year.

(E)  Generally, allowing flexibility to accommodate special circumstances in which greater energy savings can be realized or health and safety problems may be alleviated.

* * *

Sec. 32.  33 V.S.A. § 2503(h) is amended to read:

(h)  No tax under this section shall be imposed for any quarter ending after June 30, 2008 2011.  Monies from the escrow account shall be issued for rebates pursuant to subsection (g) of this section until March 1, 2009 2012.

Sec. 33.  REPORT ON HEATING FUEL GROSS RECEIPTS TAX

By January 15, 2011, the joint energy committee shall make recommendations to the committees on appropriations, ways and means, finance, and natural resources and energy regarding continuing or increasing the amount of the tax established under 33 V.S.A. § 2503, as determined by the degree of success of the state by that time in meeting the building efficiency goals of the state, as established in 10 V.S.A. § 581.

* * * Biodiesel * * *

Sec. 34.  USE OF BIODIESEL IN STATE OFFICE BUILDINGS, STATE 

               GARAGES, AND THE STATE VEHICLE FLEET

(a)  Definitions.  As used in this section:

(1)  “Biodiesel blend” means a blend of biodiesel fuel and petroleum diesel fuel or petroleum heating fuel that contains at least two percent biodiesel fuel by volume.

(2)  “Biodiesel fuel” means a renewable, biodegradable, mono alkyl ester combustible liquid fuel derived from vegetable 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 Fuel.

(b)  On or before January 15, 2009, the department of buildings and general services, department of public service, and agency of transportation jointly shall submit a report to the house and senate committees on institutions, the house and senate committees on natural resources and energy, the house and senate committees on transportation, the house and senate committees on agriculture, the house committee on commerce, the house committee on ways and means, and the senate committee on finance with recommendations on increasing the use of biodiesel blends in state office buildings, state garages, and in the state transportation fleet. 

(1)  The portion of the report prepared by the department of buildings and general services shall contain:

(A)  A summary of the current use of biodiesel blends in state office buildings.

(B)  Recommendations on how to increase the use of biodiesel blends in all state office buildings, wherever feasible, to at least five percent biodiesel (B5) by December 31, 2009, and to at least 10 percent biodiesel (B10) by 2012.

(C)  A summary of any obstacles to increasing biodiesel use in state buildings.

(D)  A proposed work plan to increase biodiesel use.

(2)  The portion of the report prepared by the department of public service shall contain:

(A)  A summary of the biodiesel fuel production capacity, storage facilities, and distribution facilities currently available in Vermont.

(B)  Recommendations for increasing biodiesel fuel production, storage facilities, and distribution facilities.

(C)  A summary of current information on the performance of biodiesel blends for use as heating fuel and as a motor vehicle fuel.

(D)  A summary of the national and regional quality assurance and quality control measures in use for blending biodiesel fuel.

(E)  A proposed work plan to increase biodiesel use.

(3)  The portion of the report prepared by the agency of transportation shall contain:

(A)  A summary of the current use of biodiesel blends in state garages and the state transportation fleet.

(B)  Recommendations on how to increase the use of biodiesel blends in state garages and in the state transportation fleet, wherever feasible, to at least five percent biodiesel (B5) by December 31, 2009, and to at least 10 percent biodiesel (B10) by 2012.

(C)  A summary of any obstacles to increasing biodiesel use in state garages and the state transportation fleet.

(D)  A proposed work plan to increase biodiesel use.

(c)  The department of public service, with representatives of the department of buildings and general services and the agency of transportation present, shall conduct at least one public hearing to review the draft report and to solicit comments prior to finalizing the report.

Sec. 35.  STUDY ON PUBLIC POWER AUTHORITY

By no later than January 15, 2009, the department of public service shall report to the committees on commerce, finance, and natural resources and energy, with the results of a study detailing the benefits and disadvantages of creating a public power authority with tools necessary to enable it to establish a  substantial public power presence in the state, when to do so would be in the public interest.

Sec. 36.  REPORT ON VALUATION OF NET METERED SYSTEMS

By December 1, 2008, the department of taxes shall develop and publish guidelines in the form of a technical bulletin for the property valuation of net metered systems.

Sec. 37.  NATURAL RESOURCES BOARD RULEMAKING ON CONSERVATION FLOW STANDARDS

(a)  The natural resources board shall, in a process separate from the planned revision to the Vermont water quality standards, evaluate the need to amend by rule the conservation flow standards for the water quality review of proposed hydroelectric facilities.  In conducting its evaluation, the natural resources board, by no later than June 1, 2008, shall convene a public stakeholder process of interested parties to review existing and proposed conservation flow standards and to issue recommendations regarding the need to amend the conservation flow standards.  As part of its evaluation of the conservation flow standards, the natural resources board shall consider whether the following flow standards may be used for reviewing the water quality impact of new hydroelectric generation projects in the state, including water withdrawals, diversions, existing impoundments, and the construction of appurtenant facilities related to a project:

(1)  A 7Q10 conservation flow;

(2)  The statewide median flow for August as the aquatic base flow;

(3)  The statewide February median flow;

(4)  Site specific flow standards; and

(5)  Any other flows deemed appropriate by the board.

(b)  After the stakeholder group issues its recommendations as required under subsection (a) of this section, the natural resources board may adopt rules amending the conservation flow standards used by the agency of natural resources to conduct water quality review of proposed hydroelectric facilities. Any amendment to the conservation flow standards shall assure the protection of water quality, including water quantity, necessary to sustain aquatic communities, aquatic habitat, and stream functions.  This section shall not be construed to prohibit the natural resources board from addressing or amending conservation flow standards for hydroelectric facilities during the triennial review of the Vermont water quality standards.

Sec. 38.  AGENCY OF NATURAL RESOURCES REPORT ON FISH STUDY METHODOLOGY

On or before January 15, 2009, the agency of natural resources shall report to the house committee on fish, wildlife and water resources and the senate committee on natural resources and energy with an estimate of the cost of producing a fish study methodology for the state of Vermont, other than the U.S. Geological Survey’s instream flow incremental methodology protocols, provided that such a methodology is feasible and adequately addresses flow needs and the protection of aquatic habitat while also providing applicants for agency permits and certification with a reliable and agency accepted method for conducting fish studies.

(Committee vote: 11-0-0)

Rep. Smith of Morristown, for the Committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Natural Resources and Energy and when further amend as follows:

First:  In Sec. 24, in 32 V.S.A. § 5401(10)(J), by striking subdivision (J) and inserting a new subdivision (J) to read:

     (J)  Buildings and fixtures of wind-powered electric generating facilities taxed under section 5402c of this title.

and in Sec. 25, in 32 V.S.A. § 5402c(e), by striking “Unless buildings and fixtures are subject to tax” and inserting in lieu thereof “Unless buildings and fixtures are taxed

Second:  In Sec. 25, in 32 V.S.A. § 5402c(c), by striking “15 percent capacity factor” and inserting in lieu thereof “15 percent nameplate capacity

Third:  By striking Sec. 29 and inserting a new Sec. 29 to read:

Sec. 29.  EFFECTIVE DATE OF BUSINESS ENERGY TAX CREDITS AND TRANSITION RULE

Secs. 27 and 28 of this act (business energy tax credits) shall apply to carry‑through and recapture of federal credits related to taxable years 2009 and after.

Fourth:  In Sec. 6, in 10 V.S.A. § 581, by adding subdivision (5) to read:

(5)  To increase weatherization services to low income Vermonters by expanding the number of units weatherized, or the scope of services provided, or both, as revenue becomes available in the home weatherization assistance trust fund.

Fifth: In Sec. 31, in 33 V.S.A. § 2502(b)(3), by striking subdivision (D) and inserting in lieu thereof the following:

(D)  Eliminating the lien requirement on weatherized rental properties, so long as the landlord executes a rent stabilization agreement which has a term of at least one year.

Sixth: In Sec. 31, in 33 V.S.A. § 2502(b)(3), by adding subdivision (F) to read:

(F)  Increasing the number of low income homes weatherized each year, or the scope of services provided, or both, to reflect increased revenues in the home weatherization assistance trust fund.

Seventh:  By striking Sec. 33 and inserting a new Sec. 33 to read:

Sec. 33.  REPORT ON HEATING FUEL GROSS RECEIPTS TAX

By January 15, 2011, the joint energy committee shall:      

(1)  With the assistance of the department of taxes, the department of motor vehicles, and the joint fiscal office, review the efficiency of the gross receipts tax and other taxes on fuels, including payment and reporting requirements.

(2)  Study the advisability of continuing or increasing the amount of the tax established under 33 V.S.A. § 2503, as appropriate, given the degree of success of the state by that time in meeting the building efficiency goals of the state established in 10 V.S.A. § 581.

(3)  Report its findings and recommendations with regard to subdivisions (1) and (2) of this section to the house and senate committees on appropriations and on natural resources and energy, the house committee on ways and means, and the senate committee on finance.

(Committee vote: 9-1-1)

Rep. Keenan of St. Albans City, for the Committee on Appropriations, recommends the bill ought to pass in concurrence when amended as recommended by the Committee on Natural Resources and Energy  and when further amended by the Committee Ways and Means.

(Committee vote: 11-0-0)

(For text see Senate Journal July 11, 2007, P. 1778 )

S. 278

An act relating to financing campaigns.

Rep. Sweaney of Windsor, for the Committee on Government Operations, recommends that the House propose to the Senate that the bill be amended by striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Large campaign contributions reduce public confidence in the electoral process and increase the risk and the appearance that candidates and elected officials will not act in the best interests of all Vermont citizens.

(2)  Some candidates and elected officials, particularly when time is limited, respond and give access to contributors who make large contributions in preference to those who make small or no contributions.

(3)  In Vermont, contributions greater than the amounts specified in this act are considered by the general assembly, candidates, and elected officials to be large contributions.

(4)  In Vermont, contributions in the amounts permitted in this act adequately allow contributors to express their opinions, levels of support, and affiliations with respect to candidates, political committees, and political parties.

(5)  In Vermont, candidates can raise sufficient monies to fund effective campaigns from contributions no larger than the amounts specified in this act.

(6)  In Vermont, lower contribution limits have not prevented challengers from maintaining robust and competitive campaigns.

(7)  Limiting large contributions will encourage direct and small group contact between candidates and the electorate and will encourage the personal involvement of a larger number of citizens in campaigns, both of which are crucial to public confidence and the robust debate of issues.

(8)  In Vermont, campaign expenditures by persons who are not candidates have been increasing and public confidence is eroded when unidentified expenditures are made, particularly during the final days of a campaign.

(9)  Identification of persons who publish political advertisements and electioneering communications assists in enforcement of the campaign finance limitations established by this act.

(10)  Aggregate contributions limitations are necessary to limit the influence of a single source, political committee, or political party in an election.

(11)  There is an extensive record supporting the need for the regulation of campaign finance in Vermont that was compiled during the consideration of No. 64 of the Acts of 1997, and that was considered by the courts during the litigation of Landell v. Sorrell, 118 F.Supp. 459 (D.Vt. 2000), aff’d in part and vacated in part, 382 F.3d 91 (2d Cir. 2004), rev’d and remanded sub nom. Randall v. Sorrell, 126 S. Ct. 2479 (2006) ), and during the General Assembly’s consideration of S.164 during the 2007 legislative session.

(12)  This act is necessary in order to implement more fully the provisions of Article 8 of Chapter I of the Constitution of the State of Vermont, which declares “That all elections ought to be free and without corruption, and that all voters, having a sufficient, evident, common interest with, and attachment to the community, have a right to elect officers, and be elected into office, agreeably to the regulations made in this constitution.”

Sec. 2.  17 V.S.A. § 2801 is amended to read:

§ 2801.  DEFINITIONS

As used in this chapter:

(1)  “Candidate” means an individual who has taken affirmative action to become a candidate for state, county, local, or legislative office in a primary, special, general, or local election.  An affirmative action shall include one or more of the following:

(A)  accepting contributions or making expenditures totaling $500.00 or more; or

(B)  filing the requisite petition for nomination under this title or being nominated by primary or caucus; or

(C)  announcing that he or she seeks an elected position as a state, county, or local officer or a position as representative or senator in the general assembly.

(2)  “Clearly identified,” with respect to a candidate, means that:

(A)  The name of the candidate appears;

(B)  A photograph or drawing of the candidate appears; or

(C)  The identity of the candidate is apparent by unambiguous reference.

(3)  “Contribution” means a payment, distribution, advance, deposit, loan, or gift of money or anything of value, paid or promised to be paid to a person for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates in any election, but shall not include services provided without compensation by individuals volunteering their time on behalf of a candidate, political committee or political party.  For purposes of this chapter, “contribution” shall not include a personal loan from a lending institution any of the following:

(A)  a personal loan of money to a candidate from a lending institution made in the ordinary course of business;

(B)  services provided without compensation by individuals volunteering their time on behalf of a candidate, political committee, or political party;

(C)  unreimbursed travel expenses paid for by an individual who volunteers personal services to a candidate, if the cumulative amount of these expenses does not exceed $1,000.00 per election;

(D)  unreimbursed campaign‑related travel expenses paid for by the candidate or the candidate’s spouse or civil union partner;

(E)  the payment by a political party of the costs of preparation, display, or mailing or other distribution of a party candidate listing;

(F)  documents, in printed or electronic form, including party platforms, single copies of issue papers, information pertaining to the requirements of this title, lists of registered voters and voter identification information, created, obtained, or maintained by a political party for the general purpose of party building and provided to a candidate who is a member of that party or to another political party;

(G)  compensation paid by a political party to its employees whose job responsibilities are not for the specific and exclusive benefit of a single candidate in any election;

(H)  campaign training sessions provided to three or more candidates;

(I)  costs paid for by a political party in connection with a campaign event at which three or more candidates are present;

(J)  the use of offices, telephones, computers, and similar equipment;

(K)  activity or communication designed to encourage individuals to register to vote or to vote if that activity or communication does not mention or depict a clearly identified candidate;

(L)  compensation paid by a political party to its employees or consultants for the purpose of providing assistance to another political party.

(3)(4)  “Expenditure” means a payment, disbursement, distribution, advance, deposit, loan, or gift of money or anything of value, paid or promised to be paid, for the purpose of influencing an election, advocating a position on a public question, or supporting or opposing one or more candidates.  For the purposes of this chapter, “expenditure” shall not include any of the following:

(A)  a personal loan of money to a candidate from a lending institution made in the ordinary course of business;

(B)  services provided without compensation by individuals volunteering their time on behalf of a candidate, political committee, or political party;

(C)  unreimbursed travel expenses paid for by an individual who volunteers personal services to a candidate, if the cumulative amount of these expenses does not exceed $1,000.00 per election;

(D)  unreimbursed campaign‑related travel expenses paid for by the candidate or the candidate’s spouse or civil union partner.

(5)  “Party candidate listing” means any communication by a political party that:

(A)  lists the names of at least three candidates for election to public office;

(B)  is distributed through public advertising such as broadcast stations, cable television, newspapers and similar media, or through direct mail, telephone, electronic mail, publicly accessible sites on the internet or personal delivery;

(C)  treats all candidates in the communication in a substantially similar manner; and

(D)  is limited to:

(i)  the identification of each candidate, with which pictures may be used;

(ii)  the offices sought;

(iii)  the offices currently held by the candidates;

(iv)  the party affiliation of the candidates and a brief statement about the party or the candidates’ positions, philosophy, goals, accomplishments, or biographies;

(v)  encouragement to vote for the candidates identified; and

(vi)  information about voting, such as voting hours and locations.

(4)(6)  “Political committee” or “political action committee” means any formal or informal committee of two or more individuals, or a corporation, labor organization, public interest group, or other entity, not including a political party, which receives contributions of more than $500.00 and makes expenditures of more than $500.00 in any one calendar year for the purpose of supporting or opposing one or more candidates, influencing an election, or advocating a position on a public question in any election or affecting the outcome of an election.

(5)(7)  “Political party” means a political party organized under chapter 45 of this title or and any committee established, financed, maintained, or controlled by the party, including any subsidiary, branch, or local unit thereof and including national or regional affiliates of the party and shall be considered a single, unified political party.  The national affiliate of the political party shall be considered a separate political party.

(6)(8)  “Single source” means an individual, partnership, corporation, association, labor organization, or any other organization or group of persons which is not a political committee or political party.

(7)(9)  “Election” means the procedure whereby the voters of this state or any of its political subdivisions select or caucus selects a person to be a candidate for public office or fill a public office, or to act on public questions including voting on constitutional amendments.  Each primary, general, special, run‑off, or local election shall constitute a separate election.

(8)(10)  “Public question” means an issue that is before the voters for a binding decision.

(9)(11)  “Two‑year general election cycle” means the 24‑month period that begins 38 days after a general election. Expenditures related to a previous campaign and contributions to retire a debt of a previous campaign shall be attributed to the earlier campaign cycle.

(10)(12)  “Full name” means an individual’s full first name, middle name or initial, if any, and full legal last name, making the identity of the person who made the contribution apparent by unambiguous reference.

(11)(13)  “Telephone bank” means more than 500 telephone calls of an identical or substantially similar nature that are made to the general public within any 30‑day period.

Sec. 3.  17 V.S.A. § 2801a is amended to read:

§ 2801a.  EXCEPTIONS

The definitions of “contribution,” “expenditure,” and “electioneering communication” shall not apply to:

(1)  any news story, commentary, or editorial distributed through the facilities of any broadcasting station, newspaper, magazine, or other periodical publication which has not been paid for, or such facilities are not owned or controlled, by any political party, committee, or candidate; and

(2)  any communication distributed through a public access television station if the communication complies with the laws and rules governing the station, and all candidates in the race have an equal opportunity to promote their candidacies through the station.

Sec. 4.  17 V.S.A. § 2805 is amended to read:

§ 2805.  LIMITATIONS OF CONTRIBUTIONS

(a)  A candidate for state representative or local office shall not accept contributions totaling more than $200.00 $250.00 from a single source, or political committee or political party in for any two‑year general election cycle.

(b)  A candidate for state senator or county office shall not accept contributions totaling more than $300.00 $500.00 from a single source, or political committee or political party in for any two‑year general election cycle.

(c)  A candidate for the office of governor, lieutenant governor, secretary of state, state treasurer, auditor of accounts, or attorney general shall not accept contributions totaling more than $400.00 $1,000.00 from a single source, or political committee or political party in for any two‑year general election cycle.  A political committee, other than a political committee of a candidate, or a political party shall not accept contributions totaling more than $2,000.00 from a single source, political committee or political party in any two‑year general election cycle.

(b)(d)  A single source, political committee or political party shall not contribute more to a candidate, political committee or political party than the candidate, political committee or political party is permitted to accept under subsection (a) of this section than $20,000.00 to all candidates in any two‑year general election cycle.  A single source shall not contribute more than $20,000.00 to all political committees and political parties in any two‑year general election cycle.

(c)(e)  A candidate, political party or political committee shall not accept, from a political party contributions totaling more than the following amounts in any two‑year general election cycle, more than 25 percent of total contributions from contributors who are not residents of the state of Vermont or from political committees or parties not organized in the state of Vermont:

(1)  For the office of governor, $30,000.00;

(2)  For the office of lieutenant governor, $10,000.00;

(3)  For the office of secretary of state, state treasurer, auditor of accounts, or attorney general, $5,000.00;

(4)  For the office of state senator or county office, $2,000.00;

(5)  For the office of state representative or local office, $1,000.00.

(f)  A single source, political committee, or political party shall not contribute more to a candidate, political committee, or political party than the candidate, political committee, or political party is permitted to accept under subsections (a) through (d) and (f) of this section.

(d)(g)  A candidate shall not accept a monetary contribution in excess of $50.00 unless made by check, credit or debit card, or other electronic transfer.

(e)(h)  A candidate, political party, or political committee shall not knowingly accept a contribution which is not directly from the contributor, but was transferred to the contributor by another person for the purpose of transferring the same to the candidate, or otherwise circumventing the provisions of this chapter.  It shall be a violation of this chapter for a person to make a contribution with the explicit or implicit understanding that the contribution will be transferred in violation of this subsection.

(f)(i)  This section shall not be interpreted to limit the amount a candidate or his or her immediate family may contribute to his or her own campaign.  For purposes of this subsection, “immediate family” means individuals related to the candidate in the first, second or third degree of consanguinity a candidate’s spouse or civil union partner, parent, grandparent, child, grandchild, sister, brother, stepparent, stepgrandparent, stepchild, stepgrandchild, stepsister, stepbrother, mother‑in‑law, father‑in‑law, brother‑in‑law, sister‑in‑law, son‑in‑law, daughter‑in‑law, legal guardian, or former legal guardian.

(g)(j)  The limitations on contributions established by this section shall not apply to contributions made for the purpose of advocating a position on a public question, including a constitutional amendment.

(h)(k)  For purposes of this section, the term “candidate” includes the candidate’s political committee.

(l)  The contribution limitations contained in this section shall be adjusted for inflation by increasing them based on the Consumer Price Index.  Increases shall be rounded up to the nearest $10.00.  Increases shall be effective for the first two‑year general election cycle beginning after the general election held in 2008.  On or before July 1, 2009, the secretary of state shall calculate and publish the amount of each limitation that will apply to the election cycle in which July 1, 2009 falls.  On July 1 of each subsequent odd‑numbered year, the secretary shall publish the amount of each limitation for the election cycle in which that publication falls.

(m)  Contributions accepted by candidates shall be treated as follows:

(1)  A candidate who accepts a contribution prior to the date of the primary election may designate the contribution, or portion of the contribution, as either a primary or general election contribution.  Once designated, a general election contribution accepted prior to the primary election shall be accounted for separately.

(2)  A contribution accepted by a candidate after the date of the primary election shall be a general election contribution.  A candidate may designate a contribution, or portion of the contribution, accepted after the date of the primary election as a primary election contribution only for the purpose of retiring debt incurred for the primary election.

(3)  Contributions that were accepted prior to the primary election may be used for the general election if all debt incurred for the primary election has been retired.

(4)  Expenditures related to a previous two-year general election cycle and contributions to retire a debt of a previous two-year general election cycle shall be attributed to the earlier two-year general election cycle.

(n)  The limitations on contributions set forth in subsection (a), (b), (c), or (d) of this section shall be doubled for independent candidates prior to the date of a primary election.

(o)  A candidate accepts a contribution when the contribution is deposited in the candidate’s campaign account.

Sec. 5.  17 V.S.A. § 2805b is added to read:

§ 2805b.  LIMITATIONS ON CONTRIBUTIONS; POLITICAL

                COMMITTEES; POLITICAL PARTIES

(a)  In any two-year general election cycle:

(1)  A political committee, other than a political committee of a candidate, shall not accept contributions totaling more than $2,000.00 from a single source, political committee, or political party.

(2)  A political party shall not accept contributions totaling more than $2,000.00 from a single source or political committee.

(3)  A political party shall not accept contributions totaling more than $30,000.00 from another political party.

(b)  The contribution limitations contained in this section shall be adjusted for inflation by increasing them based on the Consumer Price Index.  Increases shall be rounded up to the nearest $10.00.  Increases shall be effective for the first two‑year general election cycle beginning after the general election held in 2008.  On or before July 1, 2009, the secretary of state shall calculate and publish the amount of each limitation that will apply to the election cycle in which July 1, 2009 falls.  On July 1 of each subsequent odd‑numbered year, the secretary shall publish the amount of each limitation for the election cycle in which that publication falls.

(c)  In any two-year general election cycle:

(1)  A single source, political committee, or political party shall not contribute more than $2,000.00 to a political committee, other than a political committee of a candidate.

(2)  A single source or political committee shall not contribute more than $2,000.00 to a political party.

(3)  A political party shall not contribute more than $30,000.00 to another political party.

(d)  The limitations on contributions established by this section shall not apply to contributions made for the purpose of advocating a position on a public question, including a constitutional amendment.

Sec. 6.  17 V.S.A. § 2809 is amended to read:

§ 2809.  ACCOUNTABILITY FOR RELATED COORDINATED

              EXPENDITURES

(a)  A related coordinated campaign expenditure made on a candidate’s behalf shall be considered a contribution to the candidate on whose behalf it was made.

(b)  A related coordinated campaign expenditure made on a candidate’s behalf shall be considered an expenditure by the candidate on whose behalf it was made.  However, if the expenditure did not exceed $50.00, the expenditure shall not be considered an expenditure by the candidate on whose behalf it was made.

(c)  For the purposes of this section, a “related coordinated campaign expenditure made on the candidate’s behalf” means any expenditure intended to promote the election of a specific candidate or group of candidates, or the defeat of an opposing candidate or group of candidates, if intentionally facilitated by, solicited by or approved by the candidate or the candidate’s political committee made by a single source, political committee, or political party in cooperation, consultation or concert with, or at the request or suggestion of, a candidate, a candidate’s political committee or an agent, unless otherwise exempt under subdivision 2801(3) or (4) or section 2801a of this title.

(d)  An expenditure made by a political party or by a political committee that recruits or endorses candidates, that primarily benefits six or fewer candidates who are associated with the political party or political committee making the expenditure, is presumed to be a related expenditure made on behalf of those candidates.  An expenditure made by a political party or by a political committee that recruits or endorses candidates, that substantially benefits more than six candidates and facilitates party or political committee functions, voter turnout, platform promotion or organizational capacity shall not be presumed to be a related expenditure made on a candidate’s behalf.  In addition, an expenditure shall not be considered a “related campaign expenditure made on the candidate’s behalf” if all of the following apply:

(1)  The expenditures were made in connection with a campaign event whose purpose was to provide a group of voters with the opportunity to meet the candidate personally.

(2)  The expenditures were made only for refreshments and related supplies that were consumed at that event.

(3)  The amount of the expenditures for the event was less than $100.00.

For the purposes of this section, a “coordinated campaign expenditure made on the candidate’s behalf” does not mean:

(1)  the cost of invitations and postage and of food and beverages voluntarily provided by an individual to provide an opportunity for a group of voters to meet a candidate, if the cumulative value of these activities by the individual on behalf of any candidate does not exceed $500.00 per election;

(2)  the sale of any food or beverage by a vendor at a charge less than the normal comparable charge, for use at a campaign event providing an opportunity for a group of voters to meet a candidate, if the charge to the candidate is at least equal to the cost of the food or beverages to the vendor and if the cumulative value of the food or beverages does not exceed $500.00 per election; or

(3)  amounts expended by a membership organization in compiling and disseminating a nonpartisan voter guide that includes reports of votes on legislation by, or answers to written questions directed to, all or substantially all of the candidates seeking election to the general assembly or to statewide office, about the candidate’s position on issues of concern to the organization, if all of the following apply:

(A)  the organization was not created for the major purpose of influencing elections;

(B)  the organization identifies itself as the sponsor of the communication, and accepts no funding from a candidate, political committee, or political party to defray the costs of the voter guide;

(C)  the voter guide does not contain a phrase such as “vote for,” “re‑elect,” “support,” “cast your ballot for,” “(name of candidate) for Senate,” “(name of candidate) in (year),” “vote against,” “defeat,” or “reject,” or  otherwise is susceptible of no reasonable interpretation other than as an appeal to vote for or against a candidate or candidates;

(D)  the voter guide does not contain photographs or messages provided by a candidate or his or her political committee or agents other than responses to a general questionnaire submitted to all candidates.

* * *

Sec. 7.  17 V.S.A. § 2891 is amended to read:

§ 2891.  DEFINITIONS

As used in this chapter, “electioneering communication”:

(1)  means any communication, including communications published in any newspaper or periodical or broadcast on radio or television or over any public address system, placed on any billboards, outdoor facilities, buttons or printed material attached to motor vehicles, window displays, posters, cards, pamphlets, leaflets, flyers, or other circulars, or in any direct mailing, robotic phone calls, or mass e-mails that refers to a clearly identified candidate for office and that promotes or supports a candidate for that office, or attacks or opposes a candidate for that office, regardless of whether the communication expressly advocates a vote for or against a candidate. 

(2)  does not mean disseminating a nonpartisan voter guide that qualifies as an exemption from the definition of “coordinated campaign expenditure made on the candidate’s behalf” under subdivision 2809(d)(3) of this title.

Sec. 8.  17 V.S.A. § 2893(b) is amended to read:

(b)  In addition to any other reports required to be filed under this chapter, a person who makes expenditures for any one mass media activity totaling $500.00 or more within 30 days of a primary or general election shall, for each activity, file a mass media report with the secretary of state and send a copy copies, by a verifiable method of sending, of the mass media report and the complete mass media activity in the same format as distributed to the public to each candidate whose name or likeness is included in the activity within 24 hours of the expenditure or activity, whichever occurs first at the same time as the release of the information contained in the mass media activity to the public.  For the purposes of this section, a person shall be treated as having made an expenditure if the person has executed a contract to make the expenditure.  The report shall identify the person who made the expenditure with the name of the candidate involved in the activity and any other information relating to the expenditure that is required to be disclosed under the provisions of subsections 2803(a) and (b) of this title.

Sec. 9.  EVALUATION OF 2008 PRIMARY AND GENERAL ELECTIONS

The house and senate committees on government operations shall evaluate the 2008 primary and general elections to determine whether the major provisions of this act are accomplishing their intended purposes.

Sec. 10.  SECRETARY OF STATE;

(a)  The secretary of state shall recommend a plan for improving and upgrading:

(1)  the ability of candidates to file and report electronically information required by chapter 55 of Title 17; and

(2)  internet access by the public of information required to be reported under chapter 55 of Title 17.

(b)  The secretary of state shall submit a report of the recommendations required by subsection (a) of this section to the general assembly by February 16, 2009 that shall include cost estimates of the recommendations.

Sec. 11.  REPEAL

17 V.S.A. § 2805a (campaign expenditure limitations) is repealed.

Sec. 12.  EFFECTIVE DATE

This act shall take effect upon passage.

(Committee vote: 9-0-2)

(For text see Senate Journal 1/17/2008, page 50 )

 

 

 

S. 355

An act relating to debt financing for the Vermont housing finance agency..

Rep. McCormack of Rutland City, for the Committee on General, Housing and Military Affairs, recommends that the House propose to the Senate that the bill be amended as follows:

by adding a new section, to be Sec. 2, to read: 

Sec. 2.  10 V.S.A. § 639(a) is amended to read:

(a)  On or before the last day of January in each year the agency shall submit a report of its activities for the preceding fiscal year to the governor and to the general assembly, specifically the committees in the house and senate with jurisdiction over housing.  Each report shall set forth a complete operating and financial statement covering its operations during the year, including the agency’s present and projected economic health, amount of indebtedness, a statement of the amounts received from funds generated by interest from real estate escrow and trust accounts established pursuant to 26 V.S.A. § 2214(c), a list and description of the programs to which IORTA funds were provided and the amounts distributed to each county.  The agency shall cause an audit of its books and accounts to be made at least once in each year by certified public accountants; the cost shall be considered an expense of the agency and a copy shall be filed with the state treasurer.

and by renumbering the existing Sec. 2 (Effective date) to be Sec. 3

(Committee vote: 8-0-0)

(No Senate Amendments)

Favorable

J. R. S. 49

Joint resolution relating to the collection of United States data in Vermont.

Rep. Evans of Essex, for the Committee on Government Operations, recommends the resolution ought to be adopted in concurrence.

(Committee vote: 10-0-1)

Senate Proposal of Amendment

H. 93

     An act relating to beer producers’ interest in retail liquor licenses.

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

Sec. 1.  7 V.S.A. § 230(a) is amended to read:

(a)  Except as provided in subdivision 2(15) of this title a bottler, manufacturer, or rectifier, bottler licensed in Vermont or in another state, a certificate of approval holder, or wholesale dealer shall not have any financial interest in the business of a first, second, or third class license, and a first, second, or third class licensee may not have any financial interest in the business of a bottler, manufacturer, or rectifier, bottler licensed in Vermont or in another state, a certificate of approval holder, or wholesale dealer.  However, a manufacturer of malt beverages may have a financial interest in the business of a first or second class license, and a first or second class licensee may have a financial interest in the business of a manufacturer of malt beverages, provided a first or second class licensee does not purchase, possess, or sell the malt beverages produced by a manufacturer with which there is any financial interest.  However, a certificate of approval holder for malt beverages or a certificate of approval holder for vinous beverages who is a manufacturer or rectifier may own a licensed retail business so long as the ownership is total and unconditional and has the prior approval of the Liquor Control Board.  All licenses or permits granted under this title shall be conspicuously displayed on the premises for which the license or permit is granted.  Any manufacturer of malt beverages that has a financial interest in a first or second class licensee and any first or second class licensee that has a financial interest in a manufacturer of malt beverages, as permitted under this section, shall provide to the department of liquor control and the applicable wholesale dealer written notification of that financial interest and the licensees involved.  A wholesale dealer shall not be in violation of this section for delivering malt beverages to a first or second class licensee that is prohibited from purchasing, possessing, or selling those malt beverages under this section.

Sec. 2.   EFFECTIVE DATE

This bill shall take effect on passage.

(For House amendments see House Journal 2/23/2007, page 239)

 

JOINT ASSEMBLY

Thursday, February 21, 2008 - 10:30 A.M. - House Chamber - Election of two (2) trustees for the Vermont State Colleges Corporation.

Candidates for the positions of trustee must notify the Secretary of State in writing not later than Thursday, February 14, 2008, by 5:00 P.M. pursuant to the provisions of 2  V.S.A. §12(b).  Otherwise their names will not appear on the ballots for these positions.

The following rules shall apply to the conduct of these elections:

First:  All nominations for these offices will be presented in alphabetical order prior to voting.

Second:  There will be only one nominating speech of not more than three (3) minutes and not more than two seconding speeches of not more than one (1) minute each for each nominee.

 

Public Hearings on Fiscal Year 2009 State budget

 

Wednesday, February 20, 1:30-4:30 p.m., Room 11 & Thursday, February 21, 1:30—3:30 p.m., Room 11– The House Appropriations Committee will hear from Vermont citizens, including representatives of advocacy groups and other organizations, on the subject of Fiscal Year 2009 appropriations.  Testimony will be scheduled in advance for 10-minute intervals.  To reserve a time slot, please call the Committee office at 802/828-2251.

 

 



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The Vermont General Assembly
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Montpelier, Vermont


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