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Journal of the House

________________

TUESDAY, APRIL 29, 2008

At ten o'clock in the forenoon the Speaker called the House to order.

Devotional Exercises

Devotional exercises were conducted by guests of Rep. Clarkson of Woodstock, The Renaissance Singing Group "Wrensong" .

Bill Referred to Committee on Appropriations

S. 358

Senate bill, entitled

An act relating to enhanced driver licenses;

Appearing on the Calendar, carrying an appropriation, under rule 35a, was referred to the committee on Appropriations.

Joint Resolution Placed on Calendar

The Speaker placed before the House the following resolution which was read and in the Speaker’s discretion, placed on the Calendar for action tomorrow under Rule 52.

J.R.H.  64

Joint resolution recognizing all Vermont firefighters, police officers, and emergency medical service (EMS) personnel for the professional level of service they provide to their communities

Offered by:  Representatives Turner of Milton, Acinapura of Brandon, Adams of Hartland, Ainsworth of Royalton, Allard of St. Albans Town, Bissonnette of Winooski, Bostic of St. Johnsbury, Canfield of Fair Haven, Devereux of Mount Holly, Errecart of Shelburne, Evans of Essex, Fallar of Tinmouth, Grenier of St. Johnsbury, Heath of Westford, Hosford of Waitsfield, Howrigan of Fairfield, Kilmartin of Newport City, Koch of Barre Town, Krawczyk of Bennington, Larocque of Barnet, LaVoie of Swanton, Marcotte of Coventry, Martin of Wolcott, McAllister of Highgate, McDonald of Berlin, McNeil of Rutland Town, Moran of Wardsboro, Myers of Essex, Orr of Charlotte, Oxholm of Vergennes, Shand of Weathersfield, Valliere of Barre City and Zenie of Colchester

Whereas, all volunteer firefighters, “paid–on call” firefighters, full-time firefighters, part-time and full-time police officers, and EMS personnel perform their duties in a professional manner, and

Whereas, firefighters, police officers, and EMS personnel are outstanding public servants who are committed to protecting life, property, and the environment in their communities throughout the state of Vermont, and

Whereas, recruiting, retaining, and protecting all firefighters, police officers, and EMS personnel are essential to the long-term well-being of the communities they serve, and

Whereas, Vermonters respect and deeply appreciate the efforts and sacrifices of firefighters, police officers, EMS personnel, and their families, now therefore be it

Resolved by the Senate and House of Representatives:

That the General Assembly recognizes the outstanding work of firefighters, police officers, and EMS personnel who work to protect life, property, and the environment throughout the state of Vermont, and be it further

Resolved:  That the secretary of state be directed to send a copy of this resolution to the Vermont State Firefighters Association, to the Vermont League of Cities and Towns, to the Professional Fire Fighters of Vermont, to the Vermont Police Chiefs Association, and to the Vermont Ambulance Association.

Committee of Conference Appointed

S. 114

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to enhancing mental health parity;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Fisher of Lincoln

   Rep. French of Randolph

               Rep. Morrissey of Bennington

Committee of Conference Appointed

S. 281

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to end-of-life care and pain management;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Frank of Underhill

   Rep. McAllister of Highgate

               Rep. Keenan of St. Albans City

Committee of Conference Appointed

S. 311

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to the use value appraisal program;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Deen of Westminster

   Rep. Clarkson of Woodstock

               Rep. Winters of Williamstown

Committee of Conference Appointed

S. 345

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to lowering the cost of workers’ compensation;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Kitzmiller of Montpelier

   Rep. Shand of Weathersfield

               Rep. Clerkin of Hartford

Committee of Conference Appointed

S. 357

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to domestic violence;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

  

   Rep. Grad of Moretown

   Rep. Sharpe of Bristol

               Rep. Acinapura of Brandon

Committee of Conference Appointed

S. 364

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear facility;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Dostis of Waterbury

   Rep. Edwards of Brattleboro

               Rep. Klein of East Montpelier

Message from the Senate No. 67

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

     I am directed to inform the House that the Senate has considered a bill originating in the House of the following title:

H. 885.  An act relating to developing consistent measurement standards for economic growth.

And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the House is requested.

The Senate has considered House proposal of amendment to Senate proposal of amendment to House bill of the following title:

H. 94.  An act relating to retail sales and taxing specialty beers.

And has concurred therein.

The Senate has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses upon House bills of the following titles:

H. 748.  An act relating to permitting students to possess and self-administer emergency medication.

H. 806.  An act relating to public water systems.

And has accepted and adopted the same on its part.

Third Reading; Bill Passed in Concurrence

S. 220

Senate bill, entitled

An act relating to the confidentiality of library patron records;

Was taken up, and pending third reading of the bill, Rep. Weston of Burlington moved to propose to the Senate to amend the bill as follows:

In Sec. 1, 22  V.S.A. § 172, by striking subdivision (b)(4)

Thereupon, Rep. Weston of Burlington, asked and was granted leave of the House to withdraw her amendment.

Pending third reading of the bill, Rep. Branagan of Georgia moved to propose to the Senate to amend the bill as follows:

In Sec. 1, 22 V.S.A. § 172(b)(4), by striking the numeral “16” and inserting in lieu thereof the numeral “18

Thereupon, Rep. Branagan of Georgia, asked and was granted leave of the House to withdraw her amendment.

Thereupon, the bill was read a third time and passed in concurrence.

Third Reading; Bill Passed in Concurrence

With Proposal of Amendment

S. 340

Senate bill, entitled

An act relating to mammography patient cost containment;

Was taken up, read the third time and passed in concurrence with proposals of amendment.

Senate Proposal of Amendment Concurred in

With a Further Amendment Thereto

H. 599

     The Senate proposed to the House to amend House bill, entitled

     An act relating to boating while intoxicated and driving while intoxicated;

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE INTENT

It is the intent of the general assembly in this act to address, among other issues, the Vermont supreme court’s decisions in State v. LaBounty, 2005 VT 124, and State v. Martin, 2007 VT 96.  In LaBounty, the court held that if more than one person was injured, an offender could be charged with only one count of grossly negligent operation of a motor vehicle with injury resulting.  Similarly, the court held in Martin that if more than one person was killed, an offender could be charged with only one count of boating while intoxicated with death resulting.  In this act, the general assembly responds to Martin and LaBounty by amending several motor vehicle statutes to permit an offender to be charged with a separate count of violating the statute for each person who was killed or injured as a result of the offense.

Sec. 2.  23 V.S.A. § 1091(b) is amended to read:

(b)  Grossly negligent operation.

(1)  A person who operates a motor vehicle on a public highway in a grossly negligent manner shall be guilty of grossly negligent operation.

(2)  The standard for a conviction for grossly negligent operation in violation of this subsection shall be gross negligence, examining whether the person engaged in conduct which involved a gross deviation from the care that a reasonable person would have exercised in that situation.

(3)  A person who violates this subsection shall be imprisoned not more than two years or fined not more than $5,000.00, or both.  If the person has previously been convicted of a violation of this section, the person shall be imprisoned not more than four years or fined not more than $10,000.00, or both.  If serious bodily injury as defined in section 1021 of Title 13 or death of any person other than the operator results, the person shall be imprisoned for not more than 15 years or fined not more than $15,000.00, or both.  If serious bodily injury or death results to more than one person other than the operator, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

Sec. 3.  23 V.S.A. § 1133 is amended to read:

§ 1133.  ATTEMPTING TO ELUDE A POLICE OFFICER

(a)  No operator of a motor vehicle shall fail to bring his or her vehicle to a stop when signaled to do so by an enforcement officer:

(1)  displaying insignia identifying him or her as such; or

(2)  operating a law enforcement vehicle sounding a siren and displaying a flashing blue or blue and white signal lamp.

(b)(1)  A person who violates subsection (a) of this section shall be imprisoned for not more than one year or fined not more than $1,000.00, or both.

(2)(A)  In the event that death or serious bodily injury to any person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator shall be imprisoned for not more than five years or fined not more than $3,000.00, or both.

(B)  If death or serious bodily injury to more than one person other than the operator is proximately caused by the operator’s knowing violation of subsection (a) of this section, the operator may be convicted of a separate violation of this subdivision for each decedent or person injured.

(c)  In a prosecution under this section, the operator may raise as an affirmative defense, to be proven by a preponderance of the evidence, that the operator brought his or her vehicle to a stop in a manner, time, and distance that was reasonable under the circumstances.

* * *

Sec. 4.  23 V.S.A. § 1201 is amended to read:

§ 1201.  OPERATING VEHICLE UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR OTHER SUBSTANCE; CRIMINAL REFUSAL

(a)  A person shall not operate, attempt to operate, or be in actual physical control of any vehicle on a highway:

(1)  when the person’s alcohol concentration is 0.08 or more, or 0.02 or more if the person is operating a school bus as defined in subdivision 4(34) of this title; or

(2)  when the person is under the influence of intoxicating liquor; or

(3)  when the person is under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of driving safely; or

(4)  when the person’s alcohol concentration is 0.04 or more if the person is operating a commercial motor vehicle as defined in subdivision 4103(4) of this title.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

* * *

Sec. 5.  23 V.S.A. § 1210 is amended to read:

§ 1210.  PENALTIES

* * *

(e)(1)  Death resulting.  If the death of any person results from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $10,000.00 or imprisoned not less than one year nor more than 15 years, or both.  The provisions of this subsection do not limit or restrict prosecutions for manslaughter.

(2)  If the death of more than one person results from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(f)(1)  Injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 1201 of this title, the person convicted of the violation shall be fined not more than $5,000.00, or imprisoned not less than one year nor more than 15 years, or both.

(2)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 1201 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured.

* * *

Sec. 6.  23 V.S.A. § 3317 is amended to read:

§ 3317.  PENALTIES

* * *

(d)  Boating while intoxicated; privilege suspension.  Any person who is convicted of violating section 3323 of this title shall have his or her privilege to operate a vessel, except a nonmotorized canoe and a nonmotorized rowboat, suspended for a period of one year and until the person complies with section 1209a of this title.

(e)  Boating while intoxicated; criminal penalty.  Any person who violates a provision of section 3323 of this title shall be imprisoned for not more than one year and subject to the following fines:

(1)  for a first offense, not less than $200.00 nor more than $750.00;

(2)  for a second or subsequent offense, not less than $250.00 nor more than $1,000.00.

(f)(1)(A)  Boating while intoxicated; death resulting.  If the death of any person results from the violation of section 3323 of this title, the person convicted shall, instead of any other penalty imposed in this section, be imprisoned not less than one year nor more than five 15 years or fined not more than $2,000.00 $10,000.00,or both; but the provisions of this section shall not be construed to limit or restrict prosecutions for manslaughter.

(B)  If the death of more than one person results from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each decedent.

(2)(A)  Boating while intoxicated; serious bodily injury resulting.  If serious bodily injury, as defined in 13 V.S.A. § 1021(2), results to any person other than the operator from a violation of section 3323 of this title, the person convicted of the violation shall be fined not more than $5,000.00 or imprisoned not more than 15 years, or both.

(B)  If serious bodily injury as defined in 13 V.S.A. § 1021(2) results to more than one person other than the operator from a violation of section 3323 of this title, the operator may be convicted of a separate violation of this subdivision for each person injured. 

* * *

Sec. 7.  23 V.S.A. § 3323 is amended to read:

§ 3323.  OPERATING UNDER THE INFLUENCE OF INTOXICATING LIQUOR OR DRUGS; B.W.I.

(a)  A person shall not operate, attempt to operate, or be in actual physical control of a vessel on the waters of this state while:

(1)  there is 0.08 percent or more by weight of alcohol in his or her blood, as shown by analysis of his or her breath or blood; or

(2)  under the influence of intoxicating liquor; or

(3)  under the influence of any other drug or under the combined influence of alcohol and any other drug to a degree which renders the person incapable of operating safely.

* * *

(e)  A person may not be convicted of more than one offense under violation of subsection (a) of this section arising out of the same incident.

Sec. 8.  9 V.S.A. chapter 82 is added to read:

CHAPTER 82.  SCRAP METAL PROCESSORS

§ 3021.  DEFINITIONS

As used in this chapter:

(1)  “Authorized scrap seller” means a licensed plumber, electrician, HVAC contractor, building or construction contractor, demolition contractor, construction and demolition debris contractor, public utility, transportation company, licensed peddler or broker, an industrial and manufacturing company; marine, automobile, or aircraft salvage and wrecking company, or a government entity.

(2)  “Ferrous scrap” means any scrap metal consisting primarily of iron, steel, or both, including large manufactured articles such as automobile bodies that may contain other substances to be removed and sorted during normal processing operations of scrap metal.

(3)  “Metal article” means any manufactured item consisting of metal that is usable for its originally intended purpose without processing, repair, or alteration, including railings, copper or aluminum wire, copper pipe and tubing, bronze cemetery plaques, urns, markers, plumbing fixtures, and cast‑iron radiators.

(4)  “Nonferrous scrap” means any scrap metal consisting primarily of metal other than iron or steel, and does not include aluminum beverage cans, post-consumer household items, items removed during building renovations or demolitions, or large manufactured items containing small quantities of nonferrous metals such as automobile bodies and appliances.

(5)  “Proprietary article” means any of the following:

(A)  Any metal article stamped, engraved, stenciled, or marked as being or having been the property of a governmental entity, public utility, or a  transportation, shipbuilding, ship repair, mining, or manufacturing company.

(B)  Any hard-drawn copper electrical conductor, cable, or wire greater than 0.375 inches in diameter, stranded or solid.

(C)  Any aluminum conductor, cable, or wire greater than 0.75 inches in diameter, stranded or solid.

(D)  Metal beer kegs.

(E)  Manhole covers.

               (F)  Catalytic converters.

(6)  “Scrap metal” means any manufactured item or article that contains metal.

(7)  “Scrap metal processor” means a person authorized to conduct a business that processes and manufactures scrap metal into prepared grades for sale as raw material to mills, foundries, and other manufacturing facilities.

§ 3022.  PURCHASE OF NONFERROUS SCRAP, METAL ARTICLES, AND PROPRIETARY ARTICLES

(a)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles directly from an authorized scrap metal seller or the seller’s authorized agent or employee.

(b)  A scrap metal processor may purchase nonferrous scrap, metal articles, and proprietary articles from a person who is not an authorized scrap metal seller or the seller’s authorized agent or employee, provided the scrap processor complies with all the following procedures:

(1)  At the time of sale, requires the seller to provide a current government-issued photographic identification that indicates the seller’s full name, current address, and date of birth, and records in a permanent ledger the identification information of the seller, the time and date of the transaction, the license number of the seller’s vehicle, and a description of the items received from the seller.  This information shall be retained for at least five years at the processor’s normal place of business or other readily accessible and secure location.  On request, this information shall be made available to any law enforcement official or authorized security agent of a governmental entity who provides official credentials at the scrap metal processor’s business location during regular business hours.

(2)  Requests documentation from the seller of the items offered for sale, such as a bill of sale, receipt, letter of authorization, or similar evidence that establishes that the seller lawfully owns the items to be sold.

(3)  After purchasing an item from a person who fails to provide documentation pursuant to subdivision (2) of this subsection, submits to the local law enforcement agency no later than the close of the following business day a report that describes the item and the seller’s identifying information required in subdivision (1) of this subsection, and holds the proprietary article for at least 15 days following purchase.

§ 3023.  PENALTIES

(a)  A scrap metal processor who violates any provision of this chapter for the first time may be assessed a civil penalty not to exceed $1,000.00 for each transaction.

(b)  A scrap metal processor who violates any provision of this chapter for a second or subsequent time shall be fined not more than $25,000.00 for each transaction.

Sec. 9.  4 V.S.A. § 1102(b) is amended to read:

(b)  The judicial bureau shall have jurisdiction of the following matters:

* * *

(14)  Violations of 9 V.S.A. § 3023(a), relating to the purchase and sale of scrap metal.

Pending the question, Shall the House concur in the Senate proposal of amendment? Rep. Jewett of Ripton moved to concur in the Senate proposal of amendment with a further amendment thereto, as follows:

     By striking Sec. 8 and Sec. 9 in their entirety and inserting in lieu thereof new Sec. 8, Sec. 9, and Sec. 10 to read as follows:

Sec. 8.  20 V.S.A. § 2358 is amended to read:

§ 2358.  MINIMUM TRAINING STANDARDS

(a)  Unless waived by the council under standards adopted by rule, and notwithstanding any statute or charter to the contrary, no person shall exercise law enforcement authority:

(1)  as a part-time law enforcement officer without completing a basic training course within a time prescribed by rule of the council; or

(2)  as a full-time law enforcement officer without either:

(A)  completing a basic training course in the time and manner prescribed by the council; or

(B)  having received, before July 1, 1968, permanent full-time appointment as a law enforcement officer, and completing a basic training course before July 1, 1982.

(3)  as a full or part-time law enforcement officer without completing annual in-service training requirements as prescribed by the council.

(b)  All programs required by this section shall be approved by the council. Completion of a program shall be established by a certificate to that effect signed by the executive director of the council.

(c)  For the purposes of this section:

(1)  “Law enforcement officer” means a member of the department of public safety who exercises law enforcement powers, a member of the state police, a municipal police officer, a constable who exercises law enforcement powers, a motor vehicle inspector, an employee of the department of liquor control who exercises law enforcement powers, an investigator employed by the secretary of state, board of medical practice investigators employed by the department of health, attorney general or a state’s attorney, a fish and game warden, a sheriff, or deputy sheriff who exercises law enforcement powers, or a railroad police officer commissioned pursuant to 30 V.S.A. chapter 45, subchapter 8.

(2)  “Full-time law enforcement officer” means a law enforcement officer with duties of a predictable and continuing nature which require more than 32 hours per week and more than 25 weeks per year.

(3)  “Part-time law enforcement officer” means a law enforcement officer who is not employed full time.

(d)  The council may determine whether a particular position is full time or part time.  Any requirements in this section shall be optional for any elected official.

Sec. 9.  24 V.S.A. § 1936a is amended to read:

§ 1936a.  CONSTABLES; POWERS AND QUALIFICATIONS

(a)  A town may vote at a special or annual town meeting:

(1)  to prohibit constables from exercising any law enforcement authority; or

(2)  to prohibit constables from exercising any law enforcement authority without having successfully completed a course of training under chapter 151 of Title 20.

* * *

Sec. 10.  EFFECTIVE DATE

Secs. 8 and 9 of this act shall take effect July 1, 2010.

Which was agreed to.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 112

Rep. Grad of Moretown, for the committee on Judiciary, to which had been referred Senate bill, entitled

An act relating to victims’ compensation;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

     By adding a new Sec. 5 to read as follows:

Sec. 5.  13  V.S.A. § 5353 is amended to read:

§ 5353. APPLICATION FOR COMPENSATION

(a) A victim or a dependent of a victim shall, upon application, be eligible for compensation if:

(1) a law enforcement official has filed a report concluding that a crime was committed which resulted in the injury or death of the victim; and

(2) the crime was committed in this state; or

(3) the victim is a Vermont resident, the state in which the crime occurred does not have an eligible crime victim's compensation program and the applicant would have been eligible for compensation under this chapter if the crime had been committed in this state; or

(4)  the victim is a Vermont resident who is injured or killed by an act of terrorism outside of the United Sates, to the extent that compensation is not otherwise available under federal law.

* * *

Rep. Acinapura of Brandon, for the committee on Appropriations, recommended the bill ought to pass in concurrence when amended as recommended by the committee on Judiciary.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and report of the committees on Judiciary and Appropriations agreed to and third reading ordered.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 244

Rep. Consejo of Sheldon, for the committee on Commerce, to which had been referred Senate bill, entitled

An act relating to self-storage facilities;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  SHORT TITLE

This act shall be known as the “Vermont Self-Storage Facility Act.”

Sec. 2.  9 V.S.A. chapter 98 is added to read:

CHAPTER 98.  STORAGE UNITS

§ 3950.  DEFINITIONS

For the purposes of this chapter, the following terms shall have the following meanings:

(1)  “Last known address” means that address provided by the occupant in the rental agreement or the address provided by the occupant in a subsequent written notice of a change of address.

(2)  “Occupant” means a person, successor, assignee, agent, or representative entitled to the use of storage space in a self-storage facility under a rental agreement to the exclusion of others.

(3)  “Owner” means the owner, operator, lessor, or sublessor of a

self-storage facility, an agent, or any other person authorized by the owner to manage the facility or to receive rent from an occupant under a rental agreement.

(4)  “Personal property” means movable property not affixed to land, and includes goods, merchandise, and household items.

(5)  “Rental agreement” means any written agreement that establishes or modifies the terms, conditions, rules, or any other provision concerning the use and occupancy of a self-storage facility.

(6)  “Self-storage facility” means any real property designed and used for the purpose of renting or leasing individual storage space to occupants who are to have access to such space for the purpose of storing and removing personal property.  A self-storage facility is not a “warehouse” as used in Article 7 of the Uniform Commercial Code (U.C.C.) as codified in Title 9A.  If an owner issues any warehouse receipt, bill of lading, or other document of title for the personal property stored, the owner and the occupant are subject to the U.C.C., and this act does not apply.

§ 3951.  RESIDENTIAL PURPOSES

(a)  No occupant shall use storage space at a self-storage facility for residential purposes.

(b)  No owner shall knowingly permit a storage space at a self-storage facility to be used for residential purposes.

§ 3952.  DISCLOSURES

(a)  A rental agreement shall contain the following:

(1)  The name and address of the owner and occupant.

(2)  The actual monthly occupancy charge, rent, or lease amount for the storage space provided, expressed in dollars.

(3)  An itemization of other charges imposed or which may be imposed in connection with the occupancy, a description of the charges, whether the charges are mandatory or optional, and the amount of each charge expressed in dollars.

(4)  A statement of whether property stored in the leased space is or is not insured by the owner against loss or damage and of the requirement that the occupant must provide his or her own insurance for any property stored.

(5)  A statement advising the occupant of the existence of the lien created by this chapter, that the property stored in the leased space may be sold to satisfy the lien, and that the owner shall not be liable for damage, loss, or alienation of items of sentimental nature or value.

(b)  The disclosures required under subdivisions (a)(4) and (a)(5) of this section shall be written in bold type and of a font size equal to or greater than the general text of the agreement.

§ 3953.  LIEN

The owner of a self-storage facility has a possessory lien upon all personal property located in a storage space at a self-storage facility for rent, labor, or other charges, present or future, in relation to the personal property, and for expenses relevant to its preservation or expenses reasonably incurred in its sale pursuant to this chapter.  The lien attaches as of the date the personal property is brought to or placed in a regular storage space at a self-storage facility in accordance with the provisions of a valid rental agreement.

§ 3954.  ENFORCEMENT OF LIEN

In the event of a default under the terms of a rental agreement, the lien created under this chapter may be enforced in accordance with the provisions of this section.

(1)  First notice of default.  No sooner than seven days after a default, the occupant shall be notified of the default by regular mail sent to his or her last known address.

(2)  Second notice of default.  No sooner than 14 days after mailing of the first notice, the occupant shall be notified of the default by certified mail sent to his or her last known address.  The second notice shall contain the following:

(A)  An itemized statement of the owner’s claim showing the sum due at the time of the notice and the date when the sum became due.

(B)  A brief and general description of the personal property subject to the lien.  There shall be no requirement to describe the specific contents of a storage space in a self-storage facility beyond stating that it is the contents of a specific storage space in a specific self-storage facility rented by a specific occupant.

(C)  A notice of denial of access to the personal property, if such denial is permitted under the terms of the rental agreement.

(D)  A demand for payment within a specified time not less than fifteen days after the mailing of the second notice of default.

(E)  A conspicuous statement that unless the claim is paid in full within the time stated in the notice, the personal property will be advertised for sale and sold according to law.

(3)  Advertisement.  After the expiration of the time given in the second notice under subdivision (2) of this section, an advertisement of the sale shall be published once a week for two consecutive weeks in a newspaper of general circulation where the self-storage facility is located.  The advertisement shall contain the following:

(A)  A brief and general description of the personal property as provided in subdivision (2)(B) of this section.

(B)  The address of the self-storage facility and the number, if any, of the space where the personal property is located and the name of the occupant.

(C)  The time, place, and manner of the sale.  If there is no newspaper of general circulation where the self-storage facility is located, the advertisement shall be posted at least 15 days before the date of the sale at the town hall where the self-storage facility is located in such fashion as the auction sales of real property are posted.

(D)  A sale or other disposition of goods as provided for in this chapter shall not be defeated or deemed not in compliance with this provisions of this chapter if the owner attempted, but was not able to obtain personal service on those persons entitled to notice or if the certified mail return receipt is not signed by the person to whom notice must be sent, unless the owner fails to publish in accordance with this section.

(4)  Notice to other lienholders.  Before the expiration of the time given in the second notice under subdivision (2) of this section, the owner shall determine whether the occupant owns any personal property subject to an active lien registered with the Vermont secretary of state.  If any such lien exists, the lienholder shall be notified by certified mail not less than 21 days prior to the sale of the property.  Such notice shall include the following:

(A)  A statement describing the property to be sold.  There shall be no requirement to describe the specific contents of a storage space in a self-storage facility beyond stating that it is the contents of a specific storage space in a specific self-storage facility rented by a specific occupant.

(B)  A statement of the lienholder’s rights under this chapter.

(C)  A statement of the time, place, and manner of the sale of the property.

(5)  Sale.  Upon fulfillment of the notification and advertisement requirements of this section, sale of the personal property shall be permitted, provided the following conditions are met:

(A)  The sale of the personal property shall take place not sooner than 15 days after the first publication under subdivision (3) of this section.

(B)  Any sale of the personal property under this chapter shall conform to the terms of all notifications required under this section.  If the sale will not or does not take place as provided for in the notifications, then subsequent notifications shall be made in the same manner as the original notifications had been made.

(C)  Any sale of the personal property shall be held at the self-storage facility, or at the nearest suitable place.

(D)  Any sale of the personal property shall be performed in a commercially reasonable manner, meaning the owner sells the goods in the usual manner in any recognized market therefor, at the price current in such market at the time of the sale; or otherwise sold in conformity with commercially reasonable practices among dealers in the type of goods sold; however, the sale of more goods than apparently necessary to ensure satisfaction of the obligation is not commercially reasonable unless necessary due to the nature of the goods being sold or the manner in which they are customarily sold.  The fact that a better price could have been obtained by sale at a different time or by a different method from that selected by the owner is not of itself sufficient to establish that the sale was not made in a commercially reasonable manner.

(E)  Any sale or disposition of a motor vehicle shall be performed pursuant to chapter 21 of Title 23 and any sale or disposition of a vessel, snowmobile, or all-terrain vehicle shall be performed pursuant to chapter 36 of Title 23.

(6)  Right of satisfaction.  Before any sale of personal property pursuant to this chapter, the occupant may pay the amount necessary to satisfy the lien in full and the reasonable expenses incurred under this section, and thereby redeem the personal property.  Upon receipt of such payment, the owner shall return the personal property, and thereafter the owner shall have no liability to any person with respect to such personal property.

(7)  Proceeds in excess of lien amount.  In the event of sale under this section, the owner may satisfy the owner’s lien from the proceeds of the sale, but shall hold the balance, if any, for delivery on demand to the occupant.  If the occupant does not claim the balance of the proceeds such funds shall be paid over without interest to the treasurer of the state of Vermont in accordance with Chapter 14 of Title 27.

(8)  Rights of other lienholders.  The holder of any perfected lien or security interest on personal property stored in the storage unit and registered with the Vermont secretary of state may take possession of its liened property at any time prior to sale or other disposition.

(9)  Rights of purchasers.  A purchaser in good faith of the personal property sold to satisfy a lien, as provided elsewhere in this chapter, takes the property free of any rights of persons against whom the lien was valid, despite noncompliance by the owner with the requirements of this chapter.

§ 3955.  SUPPLEMENTAL NATURE OF ACT

Nothing in this chapter shall be construed in any manner to impair or affect the right of parties to create liens by special contract or agreement, nor shall it in any manner affect or impair other liens arising at common law or in equity, or by any statute in this state.

§ 3956.  SAVINGS CLAUSE

This chapter shall only apply to self-storage rental agreements entered into, extended, or renewed after January 1, 2009.  Rental agreements providing for monthly rental payments but providing no specific termination date shall be subject to this act on the first monthly rental payment date following January 1, 2009.

§ 3957.  SEVERABILITY

If any provision of this act or the application thereof is held invalid, such invalidity shall not affect other provisions or applications of the act that can be given effect without the invalid provision or application, and to this end, the provisions of this act are declared to be severable.

Sec. 3.  EFFECTIVE DATE

This act shall take effect January 1, 2009.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and the recommendation of proposal of amendment agreed to and third reading ordered.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 246

Rep. Grad of Moretown, for the committee on Judiciary, to which had been referred Senate bill, entitled

An act relating to electronic access to criminal and family court records;              

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  12 V.S.A. § 5 is amended to read:

§ 5.  DISSEMINATION OF ELECTRONIC CASE RECORDS

(a)  The court shall not permit public access via the internet to criminal case records or family court case records.  The court may permit criminal justice agencies, as defined in 20 V.S.A. § 2056a, Internet access to criminal case records for criminal justice purposes, as defined in section 2056a.

(b)  This section shall not be construed to prohibit the court from providing electronic access to:

(1)  court schedules of the district or family court, or opinions of the district court; or

(2)  state agencies in accordance with data dissemination contracts entered into under Rule 6 of the Vermont Rules of Electronic Access to Court Records.

Sec. 2.  20 V.S.A. § 2056b is amended to read:

§ 2056b.  DISSEMINATION OF CRIMINAL HISTORY RECORDS TO PERSONS CONDUCTING RESEARCH

(a)  The Vermont criminal information center may provide Vermont criminal history records as defined in section 2056a of this title to bona fide persons conducting research related to the administration of criminal justice, subject to conditions approved by the commissioner of public safety to assure the confidentiality of the information and the privacy of individuals to whom the information relates.  Bulk criminal history data may only be provided in a format that excludes the subject’s name and any unique numbers that may reference the identity of the subject, except that the state identification number may be provided.  Researchers must sign a user agreement which specifies data security requirements and restrictions on use of identifying information.

(b)  No person shall confirm the existence or nonexistence of criminal history record information to any person who would not be eligible to receive the information pursuant to this subchapter other than the subject and properly designated employees of an organization who have a documented need to know the contents of the record.

(c)  A person who violates the provisions of this section with respect to unauthorized disclosure of confidential criminal history record information obtained from the center under the authority of this section shall be fined not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.

Sec. 3.  20 V.S.A. § 2056c is amended to read:

§ 2056c.  DISSEMINATION OF CRIMINAL HISTORY CONVICTION RECORDS TO EMPLOYERS THE PUBLIC

(a)  As used in this section:

(1)  “Applicant” means an individual seeking or being sought for employment, a volunteer position with an employer, or admission to a course of instruction offered by the Vermont criminal justice training council.

(2)  “Criminal conviction record” means the record of convictions in Vermont.

(3)  “Employer” means any individual, organization, or governmental body, including partnership, association, trustee, estate, corporation, joint stock company, insurance company, or legal representative, whether domestic or foreign, or the receiver, trustee in bankruptcy, trustee or successor thereof, and any common carrier by mail, motor, water, air, or express company or an authorized agent.  Authorized agent shall include a person who is licensed under chapter 59 of Title 26 to provide private investigative services.

(4)  “The center” means the Vermont criminal information center.

(b)(1)  An employer may obtain from the center a criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center.  The user’s agreement shall require the employer to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  The user’s agreement shall be signed and kept current by the employer.

(2)  An individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c may obtain from the center an out-of-state criminal conviction record for any applicant who has given written authorization on a release form provided by the center, provided that the employer has filed a user’s agreement with the center and complies with all other provisions of this section.

(c)(1)  The employer may obtain a criminal conviction record only:

(A)  after the applicant has been given an offer of employment conditioned on the record check;

(B)  after a volunteer has been offered a position conditioned on the record check.

(2)  The Vermont criminal justice training council may obtain a criminal conviction record only after an applicant has been accepted into a course of instruction offered by the Vermont criminal justice training council conditioned on the record check.

(3)  An organization that receives a criminal conviction record pursuant to this section shall provide a free copy of such record to the record subject within ten days of receipt of the record.

(4)  An organization entitled to receive a criminal conviction record pursuant to this section shall not require an applicant to obtain or submit personally a copy of his or her criminal conviction record for purposes of employment or acceptance into a course offered by the Vermont criminal justice training council.

(d)(1)  Employers shall be provided with informational material by the center prior to authorization to request criminal conviction records.  The materials shall address the following topics:

(A)  Requirements of the user agreement.

(B)  How to obtain criminal conviction records from the center.

(C)  How to interpret criminal conviction records.

(D)  How to obtain source documents summarized in the criminal conviction records.

(E)  Misuse of criminal conviction records.

(2)  Employers shall certify on the user agreement that they have read and understood the materials prior to receiving authorization to request records from the center.

(e)  The release form shall contain the applicant’s name, signature, date of birth, place of birth, and the signature as attested to by a notary public.  The release form shall state that the applicant has the right to appeal the findings to the center, pursuant to rules adopted by the commissioner of public safety.

(f)(1)  Except as otherwise authorized by this chapter, no person shall confirm the existence or nonexistence of criminal conviction record information or disclose the contents of a criminal conviction record without the record subject’s permission to any person other than the applicant and properly designated employees of the employer who have a documented need to know the contents of the record.

(2)  An employer who receives criminal conviction records pursuant to this section shall maintain a confidential log of all record requests as specified by the center.  The employer shall confidentially retain records relating to requests for criminal conviction records for a period of three years.  At the end of the retention period, if logs and records are to be destroyed, they shall be shredded.

(g)  A person who violates subsection (f) of this section shall be assessed a civil penalty of not more than $5,000.00.  Each unauthorized disclosure shall constitute a separate civil violation.  The office of the attorney general shall have authority to enforce this section.

(h)  The center shall provide notice of the penalty for unauthorized disclosure on a form accompanying any report of a criminal conviction record to an employer.  The notice shall include, in boldface print, the following statements:  THE REQUESTOR AGREES TO USE CRIMINAL CONVICTION RECORD INFORMATION RECEIVED FROM THE VERMONT CRIMINAL INFORMATION CENTER FOR THE PURPOSES INTENDED BY LAW.  THE REQUESTOR AGREES NOT TO DISCLOSE THE CONTENTS OF ANY CRIMINAL CONVICTION RECORD WITHOUT THE APPLICANT’S PERMISSION TO ANY PERSON OTHER THAN THE APPLICANT AND PROPERLY DESIGNATED EMPLOYEES WHO HAVE A DOCUMENTED NEED TO KNOW THE CONTENTS OF THE RECORD. A VIOLATION MAY RESULT IN A CIVIL PENALTY OF UP TO $5,000.00. EACH UNAUTHORIZED DISCLOSURE SHALL CONSTITUTE A SEPARATE CIVIL VIOLATION.

(i)  Nothing in this section shall create a statutory duty for an employer to perform a criminal conviction record check on every job applicant hired by the employer.  An employer’s failure to obtain a criminal conviction record on an employee who subsequently commits a criminal offense shall not be the sole factor in determining civil or criminal liability unless otherwise authorized by law.

(a)  As used in this section:

(1)  “The center” means the Vermont criminal information center.

(2)(A)  “Criminal conviction record” means the record of convictions in a Vermont district court.

(B)  Release of conviction records by the center pursuant to this section or pursuant to any other provision of state law which permits release of Vermont criminal records shall include only the charge for which the subject of the record was convicted, and shall not include docket numbers.

(b)  A person may obtain from the center a criminal conviction record for any purpose provided that the requestor has completed a user’s agreement with the center.  The user’s agreement shall prohibit the alteration of criminal records and shall require the requestor to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  

(c)  Criminal conviction records shall be disseminated to the public by the center under the following conditions:

(1)  Public access to criminal conviction records shall be provided by a secure Internet site or other alternatives approved by the center. 

(2)  A requestor who wishes to receive criminal conviction records from the center shall accept the terms of a user agreement with the center.  The user agreement shall specify the conditions under which record information is being released and specify guidelines for the proper interpretation and use of the information.

(3)  Prior to receiving criminal conviction records using the center’s Internet site a requestor shall establish a secure, online account with the center.  Issuance of the account is conditioned upon the requestor’s willingness to accept the terms of a user agreement with the center which specifies the conditions under which record information is being released and specifies guidelines for the proper interpretation and use of the information.

(4)  All queries shall be by name and date of birth of the subject.

(5)  Only “no record” responses and record responses which constitute an exact match to the query criteria shall be returned automatically online.  In the event that query criteria suggest a possible match, center staff will determine whether the query criteria match a record in the repository and shall return the result to the requestor.

(6)  An electronic log shall be kept of all transactions that shall indicate the name of the requestor, the date of the request, the purpose of the request, and the result of the request.  This log shall not be available to any person, other than center staff on a need-to-know basis, except pursuant to a court order.  

(7)  The center’s Internet site shall provide an electronic mechanism for users to notify the center of possible record errors.

(8)  The center’s Internet site shall provide links to center training information regarding best practices for the use of record checks as part of a complete background check process.

(9)  The center shall charge a fee of $20.00 for each criminal record check query pursuant to this section.

(10)  No person entitled to receive a criminal conviction record pursuant to this section shall require an applicant to obtain, submit personally, or pay for a copy of his or her criminal conviction record.

Sec. 4.  20 V.S.A. § 2063 is amended to read:

§ 2063.   CRIMINAL HISTORY RECORD FEES; CRIMINAL HISTORY RECORD CHECK FUND

(a)  Except as otherwise provided for in this section, the cost of each check for a criminal history record as defined in section 2056a of this title or a criminal conviction record as defined in section 2056c of this title based on name and date of birth shall be $10.00 $20.00.  Out-of-state criminal history record checks shall include any additional fees charged by the state from which the record is requested.

(b)  Requests made by criminal justice agencies for criminal justice purposes or other purposes authorized by state or federal law shall be exempt from all record check fees.  The following types of requests shall be exempt from the Vermont criminal record check fee:

(1)  Requests made by any individual, organization, or governmental body doing business in Vermont which has one or more individuals performing services for it within this state and which is a qualified entity that provides care or services to children, the elderly, or persons with disabilities as defined in 42 U.S.C. § 5119c.

(2)  Requests made by researchers approved by the Vermont criminal information center to conduct research related to the administration of criminal justice.  A fee, however, may be charged by the center which shall reflect the cost of generating the requested information.

(3)  Requests made by individuals to review their own record at the Vermont criminal information center; however, copies of the individual's record are not exempt from the record check fee.

(4)  Requests made by the Vermont state housing authority and other public housing authorities pursuant to 24 V.S.A § 4010(c).

(c)(1)  The criminal history record check fund is established and shall be managed by the commissioner of public safety in accordance with the provisions of subchapter 5 of chapter 7 of Title 32.  All The first $179,000.00 of fees paid under this section shall be placed in the fund and used for personnel and equipment related to the processing, maintenance, and dissemination of criminal history records.  The commissioner of finance and management may draw warrants for disbursements from this fund in anticipation of receipts.

(2)  After the first $179,000.00 of fees paid under this section shall be placed in the criminal history record check fund, all additional fees paid under this section shall go to the general fund.

(d)  The department of public safety shall have the authority, with the approval of the secretary of administration, to establish limited service positions as are necessary to provide criminal record checks in a timely manner, provided that there are sufficient funds in the criminal history record check fund to pay for the costs of these positions.

Sec. 5.  REPORT

On or before January 15, 2010, the joint fiscal office, in consultation with the judiciary and the Vermont crime information center, shall report to the senate and house committees on judiciary on the fiscal impacts of the records request fees established by this act.

Sec. 6.  REPEAL

20 V.S.A. § 2056g (dissemination of criminal history records to licensed private investigators) is repealed.

Rep. Sharpe of Bristol, for the committee on Ways and Means, recommends the bill ought to pass in concurrence when amended as recommended by the committee on Judiciary  and when further amended as follows:

First:  In Sec. 4, 20 V.S.A. § 2063(c)(1), after the word “paid” by inserting the words “each year

Second:  In Sec. 4, 20 V.S.A. § 2063(c), by striking subdivision (2) in its entirety and inserting in lieu thereof a new subdivision (2) to read as follows:

(2)  After the first $179,000.00 of fees paid each year under this section is placed in the criminal history record check fund, all additional fees paid during that year under this section shall go to the general fund.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and the report of the committees on Judiciary and Ways and Means agreed to and third reading ordered.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 297

Rep. Brennan of Colchester, for the committee on Transportation, to which had been referred Senate bill, entitled

An act relating to clarifying the definition of “Stiff Hitch” in the motor vehicle statutes;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  23 V.S.A. § 4(77) is amended to read:

§ 4.  DEFINITIONS

Except as may be otherwise provided herein, and unless the context otherwise requires in statutes relating to motor vehicles and enforcement of the law regulating vehicles, as provided in this title and part 5 of Title 20, the following definitions shall apply:

* * *

(77)  “Stiff hitch” shall mean a tow bar used by a self-propelled motor vehicle to tow another validly registered self-propelled motor vehicle while all the wheels of the towed vehicle remain in contact with the ground.  The towed vehicle shall not be required to be registered.

Rep. Sharpe of Bristol, for the committee on Ways and Means, reported the same without recommendation.

The bill, having appeared on the Calendar one day for notice, was taken up, read the second time and the report of the committees on Transportation and Ways and Means agreed to and third reading ordered.

Senate Proposal of Amendment Concurred in

H. 700

     The Senate proposed to the House to amend House bill, entitled

     An act relating to sale of bottles of wine at festivals;

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  7 V.S.A. § 2(27) is amended to read:

(27)  “Special events permit”:  a permit granted by the liquor control board permitting a person holding a manufacturer’s or rectifier’s license to attend an event open to the public, which has been approved by the local licensing authority, to sell by the glass or by unopened bottle the malt or vinous beverage manufactured or rectified by the license holder.  No more than 12 special events’ permits shall be issued to a holder of a manufacturer’s or rectifier’s license during a year.  The fee for the permit is as required by subdivision 231(13) of this title, and shall be paid to the department of liquor control.  Requests for a special events’ permit shall be submitted to the department of liquor control and received by the department at least 15 days prior to the date of the event.  Each manufacturer or rectifier planning to attend a single special event under this permit may be listed on a single permit. However each attendance at a special event shall count toward the manufacturer’s or rectifier’s 12 special event permit limitation.

     Which proposal of amendment was considered and concurred in.

Senate Proposal of Amendment Concurred in

H. 685

     The Senate proposed to the House to amend House bill, entitled

     An act relating to the enforcement of environmental laws;

     By striking out Sec. 9 in its entirety and inserting in lieu thereof the following:

Sec. 9.  10 V.S.A. § 8017 is amended to read:

§ 8017.  ANNUAL REPORT

The secretary and the attorney general shall report annually to the president pro tempore of the senate, the speaker of the house, the house committee on fish, wildlife and water resources, and the chairs of the senate and house committees on natural resources and energy.  The report shall be filed no later than January 15, on the enforcement actions taken under this chapter, and on the status of citizen complaints about environmental problems in the state.  The report shall describe, at a minimum, the number of violations, the actions taken, disposition of cases, the amount of penalties collected, and the cost of administering the enforcement program.

     Which proposal of amendment was considered and concurred in.

Senate Proposal of Amendment Concurred in

H. 112

     The Senate proposed to the House to amend House bill, entitled

     An act relating to protection of health care and public safety personnel from communicable disease;

First:  In Sec. 1, 18  V.S.A. § 1141, subsection (e), before the period, by adding the following: 

, and may be considered unprofessional conduct under applicable licensing, certification, and registration laws” 

Second:  in Sec. 2, 18 V.S.A. § 1001(k) by striking out the word “limited” and, following “chapter 21 of this title”, by inserting and such other information as the department of health determines to be necessary and appropriate

     Which proposal of amendment was considered and concurred in.

Senate Proposal of Amendment Concurred in

With a Further Amendment Thereto

H. 783

     The Senate proposed to the House to amend House bill, entitled

     An act relating to home improvement fraud;

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. § 2029 is amended to read:

§ 2029. HOME IMPROVEMENT FRAUD

(a) As used in this section, "home improvement" includes the fixing, replacing, remodeling, removing, renovation, alteration, conversion, improvement, demolition, or rehabilitation of or addition to any building or land, or any portion thereof, which is used or designed to be used as a residence or dwelling unit. Home improvement shall include the construction, replacement, installation, paving, or improvement of driveways, roofs, and sidewalks, and the limbing, pruning, and removal of trees or shrubbery and other improvements to structures or upon land that is adjacent to a dwelling house.

(b) A person commits the offense of home improvement fraud when he or she knowingly enters into a contract or agreement, written or oral, for $500.00 or more, with an owner for home improvement, or into several contracts or agreements for $2,500.00 or more in the aggregate, with more than one owner for home improvement, and he or she knowingly:

(1) promises performance that he or she does not intend to perform or knows will not be performed, in whole or in part;

(2) misrepresents a material fact relating to the terms of the contract or agreement or to the condition of any portion of the property involved;

(3) uses or employs any unfair or deceptive act or practice in order to induce, encourage, or solicit such person to enter into any contract or agreement or to modify the terms of the original contract or agreement; or

(4) when there is a declared state of emergency, charges for goods or services related to the emergency a price that exceeds two times the average price for the goods or services and the increase is not attributable to the additional costs incurred in connection with providing those goods or services.

(c) It shall be a permissive inference that the person acted knowingly under subdivision (b)(1) of this section if the person fails to perform the contract or agreement and, when the owner requests performance of the contract or agreement or a refund of payments made, the person fails to:

(1) return the payments or deliver the materials or make and comply with a reasonable written repayment plan for the return of the payments; or

(2) make and comply with a reasonable written plan for completion of the contract or agreement.

(d) A person convicted of home improvement fraud shall register with the department of labor office of attorney general. The court shall notify the department of labor office of attorney general of a conviction under this section. A person who is sentenced pursuant to subdivisions (e)(2), (3), or (4) of this section shall not engage in home improvement activities for compensation unless he or she has filed a surety bond or an irrevocable letter of credit with the department of labor in an amount of not less than $50,000.00. The department shall release the letter of credit at such time when:

(1) any claims against the person relating to home improvement fraud have been paid;

(2) there are no pending actions or claims against the person for home improvement fraud; and

(3) the person has not been engaged in home improvement activities for at least six years and has signed an affidavit attesting to such.

(e)(1) A person who violates subsection (b) of this section shall be imprisoned not more than two years or fined not more than $1,000.00, or both, if the loss to a single consumer is less than $1,000.00.

(2) A person who is convicted of a second or subsequent violation of subdivision (1) of this subsection shall be imprisoned not more than three years or fined not more than $5,000.00, or both.

(3) A person who violates subsection (b) of this section shall be imprisoned not more than three years or fined not more than $5,000.00, or both, if:

(A) the loss to a single consumer is $1,000.00 or more; or

(B) the loss to more than one consumer is $2,500.00 or more in the aggregate.

(4) A person who is convicted of a second or subsequent violation of subdivision (3) of this subsection shall be imprisoned not more than five years or fined not more than $10,000.00, or both.

(5) A person who violates subsection (d) or (f) of this section shall be imprisoned for not more than two years or fined not more than $1,000.00, or both.

(f)  A person who is sentenced pursuant to subdivision (e)(2), (3), or (4) of this section may engage in home improvement activities for compensation only if:

(1)  the work is for a company or individual engaged in home improvement activities, and the person first notifies the company or individual of the conviction and notifies the office of attorney general of the person’s current address and telephone number; the name, address, and telephone number of the company or individual for whom the person is going to work; and the date on which the person will start working for the company or individual; or

(2)  the person notifies the office of attorney general of the intent to engage in home improvement activities, and that the person has filed a surety bond or an irrevocable letter of credit with the office in an amount of not less than $50,000.00, and pays on a regular basis all fees associated with maintaining such bond or letter of credit.

(g)  The office of attorney general shall release the letter of credit at such time when:

(1)  any claims against the person relating to home improvement fraud have been paid;

(2)  there are no pending actions or claims against the person for home improvement fraud; and

(3)  the person has not been engaged in home improvement activities for at least six years and has signed an affidavit so attesting.

(h)  A person who is convicted of fraudulent acts related to home improvement shall be required to comply with subsections (d) and (f) of this section.

(i)  A person may be required to comply with subsections (d) and (f) of this section by an assurance of discontinuance, a consent decree, a civil judgment, or other court order.

Sec. 2.  9 V.S.A. § 4005a is added to read:

§ 4005a.  FUND HELD IN TRUST; COMMINGLING; NO EFFECT ON TITLE TO REAL PROPERTY

(a)  For the purposes of this section:

(1)  “Claim” means any valid claim for materials furnished or services rendered in the construction, repair, remodeling, improvement, or renovation of any building or structure for which the claimant has a lien or the right to claim a lien.

(2)  “Express trust” means funds that have been paid by an owner, for or in connection with services, labor, or materials used in an improvement of real property, which are to be held by a contractor or subcontractor, in express trust, for those services, labor, or materials.  Any such contractor or subcontractor who accepts money from any owner or contractor shall become the trustee of the express trust that is created pursuant to this section.  The amounts received by such contractor or subcontractor under or in connection with each building project shall be a separate trust and the contractor or subcontractor, or any successor or assign or both of such contractor or subcontractor that hold such trust funds, shall be a trustee thereof.  These funds are not required to be held in any separate account by a contractor or subcontractor.  Such trust shall be effective against and shall have priority over any unsecured interest of a party seeking payment from such contractor or subcontractor for claims other than those that are due and owing by reason of the specific building project for which the trust was created, whether such creditors are foreign attachment or other judicial lien creditors, a trustee in bankruptcy or similar creditors or representatives or creditors of the contractor or subcontractor.

(b)  Funds held in express trust are not required to be held in any separate account by a contractor or subcontractor.

(c)  No express trust shall be required for a federal, state, or municipal project.

(d)  The amount payable to any contractor or subcontractor under any contract for the construction, repair, remodeling, improvement, or renovation of any building or structure shall, upon receipt by such contractor or subcontractor, be held in express trust by such contractor or subcontractor for the payment of all claims that are due and owing, or to become due and owing, by such contractor or subcontractor by reason of such construction, repair, remodeling, improvement, or renovation.

(e)  Any amount required to be held in express trust under this section shall be applied to the payment of the corresponding claims specified in this section.

(f)  Nothing herein shall be construed to create a lien on real property.  The existence of an express trust under this section shall not prohibit the filing or enforcement of a lien against the affected real property pursuant to chapter 51 of Title 9 by any claimant.  A priority lien of a secured lender shall not be subordinate to an express trust.

(g)  In the case of an express trust which is not held by a corporation, limited liability partnership, or limited liability company, liability for sums due under this section shall only attach to the principal or head of the company which holds the funds under the express trust.

Pending the question, Shall the House concur in the Senate proposal of amendment? Rep. Jewett of Ripton moved to concur in the Senate proposal of amendment with a further amendment thereto, as follows:

First:  In Sec. 1, by striking subsection (d) and inserting in lieu thereof a new subsection (d) to read:

(d) A person convicted of home improvement fraud shall register with the department of labor. The court shall notify the department of labor of a conviction under this section. A person who is sentenced pursuant to subdivisions (e)(2), (3), or (4) of this section shall not engage in home improvement activities for compensation unless he or she has filed a surety bond or an irrevocable letter of credit with the department of labor in an amount of not less than $50,000.00. The department shall release the letter of credit at such time when:

(1) any claims against the person relating to home improvement fraud have been paid;

(2) there are no pending actions or claims against the person for home improvement fraud; and

(3) the person has not been engaged in home improvement activities for at least six years and has signed an affidavit attesting to such.  Whenever a person is convicted of home improvement fraud or of fraudulent acts related to home improvement:

(1)  the person shall notify the office of attorney general;

(2)  the court shall notify the office of the attorney general; and

(3)  the office of attorney general shall place the person’s name on the home improvement fraud registry.

Second:  In Sec. 1, by striking subsection (i) in its entirety

     Which was agreed to.

Senate Proposal of Amendment Concurred in

H. 881

     The Senate proposed to the House to amend House bill, entitled

     An act relating to the role of electric and gas utilities in facilitating the deployment of communications facilities throughout the state;

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS AND PURPOSE

The general assembly finds that:

(1)  As found in 30 V.S.A. § 8060(a)(1): “ The availability of mobile telecommunications and broadband services is essential for promoting the economic development of the state, the education of its young people and life‑long learning, the delivery of cost-effective health care, the public safety, and the ability of citizens to participate fully in society and civic life.”

(2)  Electric and gas companies have networks that extend throughout the state.  Some of these networks can be leveraged to improve the economics of deploying mobile telecommunications and broadband service throughout the state.

(3)  Electric and gas companies hold easements that allow for specific utility use, but certain of these easements may not allow for the attachment or the installation of communications facilities.

(4)  Therefore, the goals of the general assembly in this act are to ensure that electric and gas utilities allow and enable access to their facilities and easements to communications companies as a necessary element of serving the public good in a flexible manner that is fair to both the utilities’ ratepayers and customers of communications service providers.

Sec. 2.  30 V.S.A. chapter 92 is added to read:

CHAPTER 92.  ACCESS FOR THE INSTALLATION AND MAINTENANCE OF COMMUNICATIONS FACILITIES

§ 8090.  DEFINITIONS

For the purposes of this chapter:

(1)  “Communications facilities” shall mean facilities that are used to send and receive audio, images, data, or other information via any electromagnetic media, including wires, cables, microwaves, radio waves, light waves, or any combination of these or similar media.

(2)  “Communications service provider” shall mean the Vermont telecommunications authority, a company subject to the jurisdiction of the public service board under subdivision 203(5) or section 502 of this title, or a broadband service provider who is considered to be an “attaching entity” pursuant to subsection 209(g) of this title.

(3)  “Company” or “companies” shall mean an electric or gas utility subject to the jurisdiction of the public service board.

§ 8091.  ACCESS TO FACILITIES

(a)  Any company shall allow and enable access to its plant and equipment where possible for the installation and maintenance of communications facilities by communications service providers.

(b)  When constructing or substantially reconstructing lines or structures used for electric or gas transmission or electric distribution, a company shall allow for the construction and maintenance of communications facilities thereupon if requested by a communications service provider.

(c)  Access and services required by this section shall be subject to regulation by the public service board and department of public service and shall be offered on rates, terms, and conditions, including terms of ownership of facilities, established in section 8092 of this chapter, except that services under tariffs developed pursuant to public service board rules regarding pole attachments shall be governed by those rules.

(d)  Owners of self-generation facilities, those not connected to the electric grid and net-metered generators, shall not be obligated to comply with this section.

(e)  If a communications service provider requests services from a company pursuant to this title, then the communications service provider shall be responsible for all of the costs the company incurs to obtain any easements or limited rights in property necessary to provide those services to the communications service provider, including compensation, legal fees, and the administrative costs of the utility.

§ 8092.  RATES; TERMS; CONDITIONS

(a)  Any company providing electric or gas service under public service board jurisdiction pursuant to this title shall prepare and file with the public service board, with a copy provided to the commissioner of the department of public service and the director for public advocacy, a statement of generally available rates, terms, and conditions for attachments and installations required under section 8091 of this chapter.  The nature and specificity of such statement may take into account the nature and size of the company, an assessment of the types of communications facilities for which requests are most likely, and such other factors as necessary to ensure that the rates, terms, and conditions set forth in the statement are sufficiently flexible to meet the capacities of the company, the interests of the company’s ratepayers, and the goal of facilitating broadband and wireless service.

(b)  The department and the board shall review the statement of generally available rates, terms, and conditions filed by each company.  In the event that the board or the department has grounds to believe that the rates, terms, or conditions are not just and reasonable, the board may open an investigation into the statement.  In the absence of an investigation, or while such an investigation is pending, the company’s filed statement of rates, terms, and conditions shall take effect or shall remain in effect without requiring the approval of the board.  Changes to any company’s filed statement of rates, terms, and conditions shall not take effect until 45 days after the statement has been filed with the board and the department.

(c)  In the event of a board investigation into a company’s statement of rates, terms, and conditions pursuant to this chapter, the board may alter or change the rates, terms, or conditions in effect for attachments and installations after notice and hearing, upon a finding that the company’s rates, terms, or conditions are not just and reasonable.  In making its determination, the board shall consider evidence that may be presented regarding the commercial reasonableness of the rates given the local market and the public interest in reasonable rates for electric or gas service and availability of communications services in the state.  Any change in rates, terms, and conditions required as a result of a board investigation shall be effective as of the date of the board’s order without any refund.

(d)  The statement shall include rates, terms, and conditions for services for which the company may reasonably expect to receive requests, including at a minimum:

(1)  For wireline communications facilities:

(A)  Attachment of communications facilities to electric transmission facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric and gas company facilities when requested by a communications service provider.

(2)  For wireless communication facilities:

(A)  Attachment of communications facilities to electric transmission and generation facilities and maintenance of these communications facilities.

(B)  Contribution to construction for communications facilities installed concurrently with the construction or reconstruction of electric company facilities when requested by a communications service provider.

(e)  Rates, terms, and conditions for contributions to construction and for maintenance of communications facilities installed concurrently when companies are constructing or substantially reconstructing electric transmission or distribution lines or structures or gas transmission lines shall be based on the incremental cost of adding the communications facility to the project, as long as the communications facilities will provide service in the municipality in which they are located and surrounding municipalities.

(f)  The company may negotiate rates, terms, and conditions of service that deviate from the statement of rates, terms, and conditions on file, but the company may not refuse a request to provide service in accordance with the rates, terms, and conditions on file.  Section 229 of this title does not apply to deviations from the statement of rates, terms, and conditions, unless a company provides service pursuant to this chapter to an affiliate of the company that is not an electric or gas utility. 

(g)  Companies with facilities meeting the requirements of this section shall submit their statement of rates, terms, and conditions within 150 days of the date of the enactment of this legislation.

(h)  A company may limit wireline attachments on electric transmission structures exclusively carrying voltages of 110 kV or higher to fiber-optic facilities attached and maintained by the company, if the company allows communications service providers to use fiber-optic facilities installed and maintained by the company and offers to install such fiber-optic facilities on such electric transmission structures where there are not sufficient facilities for use by communications service providers.  Rates, terms, and conditions for access to such company-attached and company-maintained facilities shall be made available consistent with the requirements of this section.

(i)  The public service board may establish rules to implement this chapter.  Such rules may include default rates, terms, and conditions to implement subsections (c) and (h) of this section.  As part of the implementation of this chapter, the board shall establish rules to require, to the extent the board is not preempted, communications providers to extend their facilities as far as the board’s authority permits.

§ 8093.  NOTIFICATION

(a)  For cases of gas transmission projects, and for projects involving electric transmission lines requiring approval pursuant to section 248 of this title, companies shall provide notice to the Vermont telecommunications authority at the same time that they provide notice pursuant to subdivision 248(a)(4)(C) of this title.

(b)  In cases of projects involving electric transmission or distribution lines which do not require approval pursuant to section 248 of this title, and which are greater than 2,500 feet, companies under the jurisdiction of the public service board shall notify the Vermont telecommunications authority of the project at least 90 days prior to planned commencement of construction for company-initiated projects, or as soon as possible for customer-initiated projects or projects required for urgent reasons of service quality or reliability.

(c)  The notice shall include:

(1)  The location of the project, including the town and a description of the route to be followed;

(2)  The nature of the project;

(3)  The date the project is planned to commence;

(4)  The contact person for the project and his or her contact information.

(d)  For good cause shown by a company, the public service board may shorten or eliminate the notice period required under this section.

(e)  In the alternative to filing notice under subsection (b) of this section, a company may file with the public service board, the department of public service, and the Vermont telecommunications authority its capital plan or construction work plan, describing the location of linear projects which do not require approval pursuant to section 248 of this title, and in the case of a

multi-year plan, the year in which a linear project is scheduled to commence.  No construction called for under the capital plan or construction work plan shall commence until the plan has been on file for at least 90 days, unless the construction is required for customer-initiated projects or for urgent reasons of service quality or reliability.

(f)  A company may specify in its statement of rates, terms, and conditions a deadline or procedure for requests to attach or add communications facilities to a project.  Unless otherwise specified by the company in its statement of rates, terms, and conditions, a company shall provide a period for responses of not less than either 45 days after notice is provided, if the company provides notice pursuant to subsection (b) of this section, or 45 days before the planned construction commences, if the company provides notice pursuant to subsection (e) of this section.  If a company does not receive a response by the deadline or according to the procedure established for responding to the notice required by this section, it may commence construction of a project prior to the end of the notice period required under subsection (b) or (e) of this section.

§ 8094.  EVALUATION OF COMMERCIAL WIRELESS NETWORKS

(a)  No company subject to public service board jurisdiction and providing electric service shall begin construction of a two-way point-to-multipoint mobile wireless communication network for the purpose of communication between its facilities for its own personnel unless:

(1)  The company has solicited proposals from commercial wireless service providers; and

(2)  For solicitations issued after July 1, 2008, the company has provided notice prior to the solicitation to the Vermont telecommunications authority and to the commissioner of the department of public service and the director for public advocacy.

(b)  Nothing in this section shall be construed to authorize or disallow the costs of such a network for the purpose of a rate proceeding for the company.

§ 8095.  LIMITATION

Nothing in this chapter limits the existing rights and obligations of entities currently authorized to attach to poles and other facilities pursuant to board rule 3.700. 

§ 8096.  LEGISLATIVE INTENT

The general assembly intends that this chapter will result in improved and increased access to mobile telecommunications and broadband services for all underserved Vermont households and businesses.

Sec. 3.  30 V.S.A. § 110a is added to read:

§ 110a. INCLUSION OF COMMUNICATIONS FACILITIES

When a gas or electric utility subject to the jurisdiction of the board files a petition to condemn an easement or limited right in property, there shall be a rebuttable presumption that access to the utility’s facilities provided pursuant to chapter 92 of this title shall be a necessary component of the utility’s rendering of adequate service to the public.

Sec. 4.  30 V.S.A. § 111a is added to read:

§ 111a.  PREEXISTING UTILITY LINES

(a)  When a corporation seeks to condemn property or an easement or other right over property where a currently existing utility line capable of operating at 100 kilovolts or less that has not been abandoned and was in place on July 1, 1993, there is a rebuttable presumption that the condemnation of the property right authorizing the existing utility line or lines is necessary in order that the petitioner may render service to the public, provided that the property right is limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, and does not (1) significantly alter the capabilities or capacity of the line or lines, (2) materially alter the degree of land use associated with the presence of the line or lines, and (3) authorize the company to perform replacements or upgrades that would have a significant impact under the criteria set forth in section 248 of this title. 

(b)  When a corporation seeks to condemn property or establish an easement or other right over property where a utility line, that has not been abandoned, was in place on July 1, 1993, the corporation shall present a petition to the public service board and to the department of public service describing the property or right, and why the action is necessary.  The property or right shall be limited to that which is required to allow the operation, maintenance, and repair of the existing line or lines, subject to the limitations set forth in subsection (a) of this section.  The board shall issue a citation upon each person whose property or right the petitioner proposes to condemn and each municipality and each planning body where the property is located, or on absent persons in such manner as the supreme court may by rule provide for service of process in civil actions, including by publication. 

(c)  Upon the filing of the petition with the board and department, any pending actions and proceedings against the petitioner affecting its right to use and enjoy the subject property are stayed for the pendency of the condemnation proceeding before the board, and the petitioner may enter upon the property to be condemned for the purposes of examination and obtaining necessary information in order to proceed with the taking and to conduct the minimum amount of maintenance and repairs necessary to provide service.

(d)  The board shall fix the time and the place for hearing.

(e)  If the utility line for which the corporation seeks to acquire easements through condemnation under this section crosses more than one property, the corporation may petition the board to hold a single hearing to determine necessity for all persons subject to condemnation under subsection (b) of this section.

(f)  A person owning or having an interest in lands or rights to be taken may stipulate as to the necessity of the taking.  The stipulation shall be filed with the board.  The board shall issue an order on necessity within 45 days upon receiving the stipulation.

(g)  A stipulation under subsection (f) of this section shall be accompanied by an affidavit sworn to before a person authorized to take acknowledgments.  The stipulation shall include the following:

(1)  a recital that the person or persons executing the stipulation have examined the proposed easement, which includes a description of the property or rights to be taken; and

(2)  an explanation of the legal and property rights affected.

(h)  If a hearing is required, the board shall hear all persons whose property or right is the subject of the condemnation petition and who wish to be heard at the time and place appointed for the hearing.  The board shall make findings of fact, and by its order, determine whether necessity requires the taking of the land and rights as set forth in the petition.

(i)  Following a determination of necessity pursuant to subsection (f) or (h) of this section, the board shall expeditiously appoint a time and place for examining the premises and provide an opportunity for a hearing on the issue of compensation, giving at least 10 days’ notice in writing to the persons that are subject to the condemnation petition.

(j)  There shall be rebuttable presumptions that compensation for the taking or use of property rights under the provision of this section shall be the diminution of value caused by the existence of such utility lines across the property at the time the petition was filed with the board and that, where a property owner acquired the property with the utility line already in place, the diminution in value was reflected in the terms of acquiring the property.  Upon rebuttal of either of these presumptions under the standard set forth in subsection (m) of this section, the board shall determine compensation pursuant to the criteria established by subdivision 112(3) of this title.

(k)(1)  When the board renders judgment, it shall send by registered mail to each of the parties in interest or their attorneys, within 30 days thereafter, a certified copy of such judgment.  If the judgment is in favor of the petitioner, the board, in the same manner, shall send to such parties a certified copy of the findings which shall include a description of the property or right to be condemned.  The petitioner shall cause a certified copy of the judgment and findings to be recorded in the clerk’s office of the town or towns in which such property is located within 30 days after the clerk receives the copies.

(2)  Upon the payment or deposit of the amounts awarded by the board, with interest, in accordance with its order, the petitioner shall be the owner of the property or right described in the findings.  However, when an appeal is taken as provided in section 12 of this title, such ownership shall be an equitable title only with right of possession until the judgment of the supreme court is complied with.

(l)  Section 112 of this title does not apply to petitions filed under this section except as provided in subsection (j) of this section.  An appeal or review relating to an action under this section shall be to the supreme court pursuant to section 12 of this title.

(m)  The presumptions arising under subsections (a) and (j) of this section shall operate in accordance with the provisions of Vermont Rule of Evidence 301(a).  These presumptions shall shift only the burden of production, and shall lose their effect as soon as any evidence to support a finding of the nonexistence of the presumed fact is introduced.

(n)  Nothing in this section shall impact any permitting or regulatory requirements that may apply to the corporation.

Sec. 5.  INVESTIGATION INTO SUBSTATION NETWORKS

The public service board shall conduct an investigation into the benefits and costs of construction of fiber-optic or other telecommunications facility networks linking electric company substations and submit a report to the committees of jurisdiction of the general assembly on or before January 15, 2009.  In addition to other information it deems appropriate, the public service board shall require from each electric company an analysis of the likely cost of connecting its substations with fiber-optic facilities and other alternative means, and the benefits to electric company operations, including benefits for system management and reliability.  If it finds good cause to do so, the board may excuse companies without more than one substation and companies which have already connected all company substations with fiber-optic facilities.  In the event that the public service board determines that the benefit of such a network exceeds its costs, it shall recommend an implementation schedule for construction of such a network and include the schedule in its report.  The board may issue an implementation schedule for individual companies prior to January 15, 2009.

     Which proposal of amendment was considered and concurred in.

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 560

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to elimination of the offender work programs board;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

The Senate proposed to the House to amend the bill as follows:

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  28 V.S.A. § 751b(d) is amended to read:

(d)  The labor, work product, or time of an offender may be sold, contracted, or hired out by the state only:

* * *

(2)  To any state or political subdivision of a state, or to any nonprofit organization which is exempt from federal or state income taxation, subject to federal law, to the laws of the recipient state and to the rules of the department. The director of work offender programs shall annually, by January 1, submit to the chairs of the senate and house committees on institutions and to the offender work programs board a list of any such nonprofit organizations receiving goods or services in the prior and current fiscal year.  Five Three members of such board at a scheduled and warned board meeting may vote to disapprove any future sales of offender produced goods or services to any nonprofit organization and such vote shall be binding on the department.

(3)  To any private person or enterprise not involving the provision of the federally-authorized federally authorized Prison Industries Enhancement Program, provided that the offender work programs board shall first determine that the offender work product in question is not otherwise produced or available within the state. Five Three members of such board at a scheduled and warned board meeting may vote to disapprove any future sales of offender produced goods or services to any person or entity not involving the provisions of the federally-authorized federally authorized Prison Industries Enhancement Program and such vote shall be binding on the department.

* * *

Sec. 2.  28 V.S.A. § 761 is amended to read:

§ 761.  OFFENDER WORK PROGRAMS BOARD

(a)  Offender work programs board established.  An offender work programs board is established for the purpose of advising the commissioner on the use of offender labor for the public good.  The board shall base its considerations and recommendations to the commissioner on a review of plans for offender work programs pursuant to subsection (b) of this section, and on other information as it deems appropriate.

(1)  The board shall consist of nine five members, each appointed by the governor for a three-year term or until a successor is appointed, as follows:

(A)  four two representatives of customers of the products and services of offender work programs, two one of whom shall represent public sector customers, and two one of whom shall represent private nonprofit organization customers;

(B)  three two representatives of private business organizations; and

(C)  one representative of labor or labor organizations; and

(D)  one at large member.

(2)  The governor shall appoint a chair and vice chair, each of whom shall serve for one year two years or until a successor is appointed.

(3)  The board shall report to the commissioner on its activities at the request of the commissioner, and at least annually to the commissioner and to the joint fiscal office.

(4)  The board may, with the commissioner's approval of funds, hire by contract such persons the board deems necessary to provide it with administrative and staff support.

(5)  All board members shall be reimbursed from the special fund established by section 752 of this title for per diem and expenses incurred in the performance of their duties pursuant to section 1010 of Title 32.

(6)  The board shall meet at the request of the commissioner, an affected business member, a member of the general public, or a member of the board.

(b)  Review of the annual report and two-year plan. In reviewing The board shall review the annual report and two-year plan submitted by the director of offender work programs as required by subsection 751b(f) of this title, and forming its recommendations concerning them to the commissioner, the board shall:

(1)  assure itself that forward its recommendations to the commissioner concerning whether the plan is informed by thorough and accurate analysis of private business activity in the specific market segments concerned, for which purpose the board may, with the commissioners' commissioner’s approval of funds, hire by contract such persons the board deems necessary to assist it in analyzing the plan.  The board shall also may conduct public hearings to hear from members of the public or from potentially affected private businesses and labor groups; and

(2)  forward annually by January 1 to the joint fiscal office a maximum level of offender work program activity in each market segment during the term of the plan; and

(3)  make publicly known and available its recommendations for offender work programs operations.

(c)  Offender work programs expansion.  The Vermont correctional industries component of the offender work programs shall not expand into an existing market until the commissioner has done all of the following:

(1)  evaluated the impact of expansion on private sector business;

(2)  notified the offender work programs board of the proposal; and

(3)  obtained the board's written suggestions, comments and recommendations concerning the proposal.  Five Three members of the such board at a scheduled and warned board meeting may vote to disapprove any proposed expansion not involving the provisions of the federally-authorized federally authorized Prison Industries Enhancement Program, and such vote shall be binding on the department.

and that upon passage, the title of the bill shall be:  “AN ACT RELATING TO THE ROLE OF THE VERMONT OFFENDER WORK PROGRAMS BOARD”

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Browning of Arlington moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Fallar of Tinmouth

Rep. Myers of Essex

Rep. Browning of Arlington

Report of Committee of Conference Adopted

S. 241

The Speaker placed before the House the following Committee of Conference report:

To the Senate and House of Representatives:

The Committee of Conference to which were referred the disagreeing votes of the two Houses upon Senate bill, entitled

An act relating to the special veteran and gold star registration plates;

Respectfully report that they have met and considered the same and recommend that Senate concur with the House proposal of amendment.

Committee on the Part of                            Committee on the Part of

the Senate                                                    the House

Sen. Jane Kitchel                                            Rep. James Masland

Sen. Richard Mazza                                       Rep. Heidi Scheuermann

Sen. Philip Scott                                             Rep. James Fitzgerald

 

Which was considered and adopted on the part of the House.

Bills Messaged to Senate Forthwith

On motion of Rep. Adams of Hartland, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

H. 783

     The Senate proposed to the House to amend House bill, entitled

     An act relating to home improvement fraud;

H. 560

House bill, entitled

An act relating to elimination of the offender work programs board;

H. 599

     House bill, entitled

     An act relating to boating while intoxicated and driving while intoxicated;

S. 220

Senate bill, entitled

An act relating to the confidentiality of library patron records;

S. 340

Senate bill, entitled

An act relating to mammography patient cost containment;

S. 241

Senate bill, entitled

An act relating to the special veteran and gold star registration plates;

Member Replaced on Committee of Conference

S. 357

The Speaker announced that she has appointed Rep. Marek of Newfane to replace Rep. Grad of Moretown on the Committee of Conference on Senate bill, entitled

     An act relating to domestic violence.

Committee of Conference Appointed

S. 250

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to decreasing the amounts of cocaine and heroin required to be possessed to trigger drug trafficking penalties;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Lippert of Hinesburg

   Rep. Grad of Moretown

               Rep. Flory of Pittsford

Committee of Conference Appointed

S. 168

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to operating a motor vehicle under the influence of alcohol or drugs;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Lippert of Hinesburg

   Rep. Grad of Moretown

               Rep. Flory of Pittsford

Committee of Conference Appointed

H. 859

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on House bill, entitled

     An act relating to increasing substance abuse treatment, vocational training, and transitional housing for offenders in order to reduce recidivism, increase public safety, and reduce corrections costs;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Lorber of Burlington

   Rep. Emmons of Springfield

               Rep. Rodgers of Glover

Recess

At twelve o’clock and ten minutes in the afternoon, the Speaker declared a recess until the fall of the gavel.

At three o’clock and forty-five minutes in the afternoon, the Speaker called the House to order.

Proposed Amendment to the Vermont Constitution Adopted

Proposition #5.  Elections

Rep. Pearson of Burlington, for the committee on Judiciary, to which the Proposal had been referred, reported in favor of its adoption in concurrence.

The Proposal, having appeared on the Calendar one day for notice, was taken up, read and pending the question, Shall Proposal #5 be adopted in concurrence? Rep. Partridge of Windham demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall Proposal #5 be adopted in concurrence? was decided in the affirmative.  Yeas, 89.  Nays, 53.

Those who voted in the affirmative are:


Ancel of Calais

Anderson of Montpelier

Atkins of Winooski

Audette of S. Burlington

Barnard of Richmond

Bissonnette of Winooski

Chen of Mendon

Cheney of Norwich

Clark of Vergennes

Clarkson of Woodstock

Condon of Colchester

Consejo of Sheldon

Copeland-Hanzas of Bradford

Courcelle of Rutland City

Davis of Washington

Deen of Westminster

Devereux of Mount Holly

Donovan of Burlington

Dostis of Waterbury

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fisher of Lincoln

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Johnson of South Hero

Keenan of St. Albans City

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

LaVoie of Swanton

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Livingston of Manchester

Lorber of Burlington

Maier of Middlebury

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McAllister of Highgate

McCormack of Rutland City

McCullough of Williston

McDonald of Berlin

McFaun of Barre Town

Milkey of Brattleboro

Minter of Waterbury

Mitchell of Barnard

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Orr of Charlotte

Oxholm of Vergennes

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Pillsbury of Brattleboro

Pugh of S. Burlington

Randall of Troy

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Sweaney of Windsor

Westman of Cambridge

Weston of Burlington

Wright of Burlington

Zenie of Colchester

Zuckerman of Burlington


Those who voted in the negative are:


Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Allard of St. Albans Town

Andrews of Rutland City

Baker of West Rutland

Bostic of St. Johnsbury

Botzow of Pownal

Branagan of Georgia

Bray of New Haven

Browning of Arlington

Canfield of Fair Haven

Clerkin of Hartford

Corcoran of Bennington

Crawford of Burke

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Fallar of Tinmouth

Fitzgerald of St. Albans City

Flory of Pittsford

Frank of Underhill

Grenier of St. Johnsbury

Helm of Castleton

Howrigan of Fairfield

Hube of Londonderry

Johnson of Canaan

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

Lawrence of Lyndon

Lewis of Derby

Malcolm of Pawlet

Marcotte of Coventry

McNeil of Rutland Town

Miller of Shaftsbury

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Peaslee of Guildhall

Potter of Clarendon

Rodgers of Glover

Scheuermann of Stowe

Spengler of Colchester

Stevens of Shoreham

Turner of Milton

Valliere of Barre City

Wheeler of Derby

Winters of Williamstown


Those members absent with leave of the House and not voting are:


Aswad of Burlington

Brennan of Colchester

Jewett of Ripton

Keogh of Burlington

Monti of Barre City

Otterman of Topsham

Trombley of Grand Isle


 

Rules Not Suspended to Take up Bill for Immediate Consideration

H. 863

Rep. Partridge of Windham, moved to suspend the rules to take up House bill, entitled

An act relating to creation and preservation of affordable housing and smart growth development;

for immediate consideration. 

     Pending the question, Shall the House suspend the rules to take up the bill for immediate consideration? Rep. Krawczyk of Bennington demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the House suspend the rules to take up the bill for immediate consideration?  was decided in the negative.  Yeas, 90.  Nays, 50.  A ¾ vote of 105 needed.

Those who voted in the affirmative are:


Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Atkins of Winooski

Audette of S. Burlington

Barnard of Richmond

Bissonnette of Winooski

Botzow of Pownal

Bray of New Haven

Browning of Arlington

Chen of Mendon

Cheney of Norwich

Clarkson of Woodstock

Condon of Colchester

Consejo of Sheldon

Copeland-Hanzas of Bradford

Corcoran of Bennington

Courcelle of Rutland City

Crawford of Burke

Deen of Westminster

Donovan of Burlington

Dostis of Waterbury

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Fitzgerald of St. Albans City

Frank of Underhill

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Haas of Rochester

Head of S. Burlington

Heath of Westford

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hunt of Essex

Hutchinson of Randolph

Jerman of Essex

Johnson of South Hero

Keenan of St. Albans City

Kitzmiller of Montpelier

Klein of East Montpelier

Kupersmith of S. Burlington

Larson of Burlington

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McCormack of Rutland City

McCullough of Williston

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Ojibway of Hartford

Orr of Charlotte

Partridge of Windham

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Randall of Troy

Rodgers of Glover

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Sweaney of Windsor

Weston of Burlington

Zenie of Colchester


Those who voted in the negative are:


Acinapura of Brandon

Adams of Hartland

Ainsworth of Royalton

Baker of West Rutland

Bostic of St. Johnsbury

Branagan of Georgia

Canfield of Fair Haven

Clark of Vergennes

Clerkin of Hartford

Davis of Washington

Devereux of Mount Holly

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Flory of Pittsford

Grenier of St. Johnsbury

Helm of Castleton

Hube of Londonderry

Johnson of Canaan

Kilmartin of Newport City

Koch of Barre Town

Komline of Dorset

Krawczyk of Bennington

Larocque of Barnet

Larrabee of Danville

LaVoie of Swanton

Lawrence of Lyndon

Lewis of Derby

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

McFaun of Barre Town

McNeil of Rutland Town

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Oxholm of Vergennes

Pearson of Burlington

Peaslee of Guildhall

Pillsbury of Brattleboro

Scheuermann of Stowe

Stevens of Shoreham

Turner of Milton

Valliere of Barre City

Wheeler of Derby

Winters of Williamstown

Wright of Burlington

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Allard of St. Albans Town

Aswad of Burlington

Brennan of Colchester

Jewett of Ripton

Keogh of Burlington

Monti of Barre City

Otterman of Topsham

Trombley of Grand Isle

Westman of Cambridge


 

Rules Suspended;  Bills Placed on all Remaining Stages of Passage in Concurrence with Proposals of Amendment; Bills Read the Third Time and Passed in Concurrence with Proposals of Amendment.

On motion of Rep. Adams of Hartland, the rules were suspended and the following bills placed on all remaining stages of passage in concurrence with proposals of amendment. 

S. 112

Senate bill, entitled

An act relating to victims’ compensation;

S. 244

Senate bill, entitled

An act relating to self-storage facilities;

S. 246

Senate bill, entitled

An act relating to electronic access to criminal and family court records;              

S. 297

Senate bill, entitled

An act relating to clarifying the definition of “Stiff Hitch” in the motor vehicle statutes;

Thereupon the bills were read the third time and passed in concurrence with proposals of amendment.

 

 

Rules Suspended; Senate Proposal of Amendment Concurred in

H. 873

On motion of Rep. Adams of Hartland, the rules were suspended and House bill, entitled

An act relating to the cleanup of Lake Champlain and other state waters;

Appearing on the Calendar for notice, was taken up for immediate consideration. 

     The Senate proposed to the House to amend the bill as follows:

     By striking all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Vermont’s surface waters are vital assets that provide the citizens of the state clean water, recreation, and economic opportunity.

(2)  Preserving and protecting the water quality of the surface waters of Vermont is necessary to preserve the quality of life for the citizens of Vermont.

(3)  Lake Champlain does not comply with the Vermont water quality standards and has been designated by the state as impaired due to phosphorus.

(4)  The federal Clean Water Act requires Vermont to develop a plan, known as a total maximum daily load (TMDL) plan, for the cleanup of Lake Champlain.

(5)  Through adoption of the Lake Champlain TMDL and through implementation of the Clean and Clear Action Plan, Vermont has committed to the restoration of the water quality of Lake Champlain.

(6)  Since 2004, a total of nearly $65 million in state and federal funds has been made available to support the Clean and Clear Action Plan.

(7)  Despite Vermont’s financial commitment to the cleanup of Lake Champlain, the independent performance audit of the Clean and Clear Action Plan concluded that there have been no significant reductions in phosphorus loads to Lake Champlain, and there has been an actual increase in phosphorus loads during implementation of the Clean and Clear Action Plan.

(8)  The audit of the Clean and Clear Action Plan also concluded that there is a lack of coordination between programs funded under Clean and Clear, that there are no requirements for programs funded under Clean and Clear, that few of the programs funded by Clean and Clear track or measure phosphorus reduction related to the programs, that there is a general absence of any quantification of phosphorus reduction under the programs funded by Clean and Clear, and that there is a lack of a clear objective for the Clean and Clear Program as a whole.

(9)  Implementation of the Lake Champlain TMDL also lacks an accurate measure for quantifying phosphorus reduction and has failed to date to reduce phosphorus loads in Lake Champlain as a whole.

(10)  Vermont should reassert its commitment to the preservation of the water quality of the state and to the cleanup of Lake Champlain by requiring the development of a comprehensive plan to implement aggressively the Lake Champlain TMDL and to improve coordination of the Clean and Clear Action Plan.

Sec. 2.  Sec. 5 of No. 43 of the Acts of 2007 is amended to read:

Sec. 5.  10 V.S.A. chapter 47, subchapter 6 is added to read:

Subchapter 6.  Lake Champlain Water Quality

§ 1385.  THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD PLAN

(a)(1)  The secretary of natural resources shall reopen the total maximum daily load (TMDL) plan for Lake Champlain as it pertains to the waters of Vermont in order to:

(A)  Adopt a new hydrologic base year to reflect the average phosphorus load discharged to Lake Champlain between 1993 and 2004;

(B)  Allocate point source and non-point source load reductions on a subwatershed basis; and

(C)  Ensure that the total annual phosphorus discharged by all wastewater treatment facilities in the aggregate does not exceed the total phosphorus load discharged to Lake Champlain by all wastewater treatment facilities in the aggregate in 2006 and to adjust aggregate total phosphorus load allocations to Lake Champlain accordingly; and

(D)  Amend pollutant load allocations within the TMDL so as to reduce point source and non-point source load allocations in order to reasonably assure that the TMDL meets the Vermont water quality standards.

(2)  The amended TMDL shall be submitted to the U.S. Environmental Protection Agency as required by 33 U.S.C. § 303.

(b)  In addition to the requirements of subsection (a) of this section, the secretary of natural resources shall amend the Vermont-specific implementation plan of the Lake Champlain TMDL to include a strategy for identifying and targeting critical source areas for non-point source pollution in each subwatershed.  For the purposes of this subsection, “critical source area” means an area in a watershed with high potential to release phosphorus to surface or subsurface runoff to waters of the state.

(c)  In amending the TMDL for Lake Champlain under subsection (a) of this section and in amending the Vermont-specific implementation plan of the Lake Champlain TMDL under subsection (b) of this section section 1386 of this title, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

§ 1386.  IMPLEMENTATION PLAN FOR THE LAKE CHAMPLAIN TOTAL MAXIMUM DAILY LOAD PLAN

(a)  On or before January 15, 2010, the secretary of natural resources shall issue a revised Vermont-specific implementation plan for the Lake Champlain TMDL.  Beginning January 15, 2013, and every four years thereafter, the secretary of natural resources shall amend and update the Vermont-specific implementation plan for the Lake Champlain TMDL.  Prior to issuing, amending, or updating the implementation plan, the secretary shall consult with the agency of agriculture, food and markets, all statewide environmental organizations that express an interest in the plan, the Vermont League of Cities and Towns, all business organizations that express an interest in the plan, the University of Vermont Rubenstein ecosystem science laboratory, and other interested parties.  The implementation plan shall include a comprehensive strategy for implementing the Lake Champlain total maximum daily load (TMDL) plan and for the remediation of Lake Champlain.  The implementation plan shall be issued as a document separate from the Lake Champlain TMDL.  The implementation plan shall:

(1)  Include or reference the elements set forth in 40 C.F.R. § 130.6(c) for water quality management plans;

(2)  Comply with the requirements of section 1258 of this title and administer a permit program to manage discharges to Lake Champlain consistent with the federal Clean Water Act;

(3)  Develop a process for identifying critical source areas for non-point source pollution in each subwatershed.  As used in this subdivision, “critical source area” means an area in a watershed with high potential for the release, discharge, or runoff of phosphorus to the waters of the state;

(4)  Develop site-specific plans to reduce point source and non-point source load discharges in critical source areas identified under subdivision (3) of this subsection;

(5)  Develop a method for identifying and prioritizing on public and private land pollution control projects with the potential to provide the greatest water quality benefits to Lake Champlain;

(6)  Develop a method of accounting for changes in phosphorus loading to Lake Champlain due to implementation of the TMDL and other factors;

(7)  Develop phosphorus reduction targets related to phosphorus reduction for each water quality program and for each segment of Lake Champlain, including benchmarks for phosphorus reduction that shall be achieved.  The implementation plan shall explain the methodology used to develop phosphorus reduction targets under this subdivision;

(8)  Establish a method for the coordination and collaboration of water quality programs within the state;

(9)  Develop a method for offering incentives or disincentives to wastewater treatment plants for maintaining the 2006 levels of phosphorus discharge to Lake Champlain;

(10)  Develop a method of offering incentives or disincentives for reducing the phosphorus contribution of stormwater discharges within the Lake Champlain basin.

(b)  In amending the Vermont-specific implementation plan of the Lake Champlain TMDL under this section, the secretary of natural resources shall comply with the public participation requirements of 40 C.F.R. § 130.7(c)(1)(ii). 

(c)  On or before January 15, 2010, the secretary of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with a summary of the contents of and the process leading to the adoption under subsection (a) of this section of the implementation plan for the Lake Champlain TMDL.  On or before January 15, 2013, and every four years thereafter, the secretary shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources, and the house and senate committees on agriculture with the amendments or revisions to the implementation plan for the Lake Champlain TMDL required by subsection (a) of this section.  Prior to issuing a report required by this subsection, the secretary shall hold at least three public hearings in the Lake Champlain watershed to describe the amendments and revisions to the implementation plan for the Lake Champlain TMDL.  The secretary shall prepare a responsiveness summary for each public hearing.  Beginning January 15, 2013, a report required by this subsection shall include:

(1)  An assessment of the implementation plan for the Lake Champlain TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic base period used to determine the phosphorus-loading capacities for the Lake Champlain TMDL based on available data, including an evaluation of the adequacy of the hydrologic base period for the TMDL;

(3)  Recommendations, if any, for amending the implementation plan or reopening the Lake Champlain TMDL.

 (d)  Beginning February 1, 2009 and annually thereafter, the secretary shall submit to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a clean and clear program summary reporting on activities and measures of progress for each program supported by funding under the Clean and Clear Action Plan. 

Sec. 3.  Sec. 4 of No. 43 of the Acts of 2007 is amended to read:

Sec. 4.  AGENCY OF NATURAL RESOURCES REPORT ON IMPLEMENTATION OF STORMWATER TMDLS

(a)  Beginning January 15, 2008, and every two years thereafter, the agency of natural resources shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture regarding agency progress in establishing and implementing the total maximum daily load (TMDL) plan for Lake Champlain.  Beginning January 15, 2009, and every two years thereafter, 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 regarding agency progress in establishing and implementing the TMDLs for the stormwater-impaired waters of the state.  Prior to issuing the reports required under this section, the agency of natural resources shall hold a public hearing in the Lake Champlain watershed and each watershed of a stormwater-impaired water for which a permit has been issued implementing a total maximum daily load.  The reports required by this section shall include:

(1)  An assessment of the implementation plan for the TMDL based on available data, including an evaluation of the efficacy of the implementation plan;

(2)  An assessment of the hydrologic targets of the TMDL based on available data, including an evaluation of the adequacy of the hydrologic targets of the TMDL;

(3)  Recommendations, if any, for amending an implementation plan or reopening a TMDL.

* * *

Sec. 4.  AGENCY OF NATURAL RESOURCES STORMWATER TMDL SCHEDULE

(a)  On or before October 1, 2008, the secretary of natural resources shall submit to each municipality in which a stormwater impaired water is located and to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture a schedule for the issuance of the implementation plans for the total maximum daily load (TMDL) plans that the U.S. Environmental Protection Agency (EPA) has approved for the stormwater-impaired waters of the state.  The schedule shall include the proposed dates on which the implementation plan for each EPA‑approved stormwater TMDL will be issued and a summary of the potential alternatives for each implementation plan, including the funding options for each alternative.

(b)  The report required under subsection (a) of this section shall also include a schedule for the submission of the remaining stormwater TMDLs to EPA for approval.

Sec. 5.  10 V.S.A. § 1264 is amended to read:

§ 1264.  STORMWATER MANAGEMENT

* * *

(e)(1)  Except as otherwise may be provided in subsection (f) of this section, the secretary shall, for new stormwater discharges, require a permit for discharge of, regulated stormwater runoff consistent with, at a minimum, the 2002 stormwater management manual.  The secretary may issue, condition, modify, revoke, or deny discharge permits for regulated stormwater runoff, as necessary to assure achievement of the goals of the program and compliance with state law and the federal Clean Water Act.  The permit shall specify the use of best management practices to control regulated stormwater runoff.  The permit shall require as a condition of approval, proper operation, and maintenance of any stormwater management facility and submittal by the permittee of an annual inspection report on the operation, maintenance and condition of the stormwater management system.  The permit shall contain additional conditions, requirements, and restrictions as the secretary deems necessary to achieve and maintain compliance with the water quality standards, including but not limited to requirements concerning recording, reporting, and monitoring the effects on receiving waters due to operation and maintenance of stormwater management facilities.

* * *

(i)  A residential subdivision may transfer a pretransition stormwater discharge permit or a stormwater discharge permit implementing a total maximum daily load plan to a municipality, provided that the municipality assumes responsibility for the permitting of the stormwater system that serves the residential subdivision.  For the purposes of this section:

(1)  “Pretransition stormwater discharge permit” means any permit issued by the secretary of natural resources pursuant to this section on or before June 30, 2004 for a discharge of stormwater.

(2)  “Residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 6.  27 V.S.A. § 614 is added to read:

§ 614.  TRANSFER OF STORMWATER DISCHARGE PERMITS TO A MUNICIPALITY

(a)  The failure of the residential subdivision to obtain, renew, or comply with the terms of a pretransition stormwater discharge permit shall not create an encumbrance on record title to real property within the residential subdivision or affect marketability of title of real property within the residential subdivision, provided that:

(1)  The residential subdivision transfers a pretransition stormwater permit to a municipality according to the requirements of subsection 1264(i) of Title 10;

(2)  Property owners within the residential subdivision record in the land records:

(A)  The deed or other legal document of conveyance of the stormwater system to the utility; and

(B)  A notice indicating that the stormwater utility has assumed responsibility for the permitting of the stormwater system located in the residential subdivision.

(b)  The definitions found in section 1264 of Title 10 and subsection 613(a) of this title apply to this section unless otherwise indicated.  For the purposes of this section, “residential subdivision” means land identified and demarcated by recorded plat or other device that a municipality has authorized to be used primarily for residential construction.

Sec. 7.  24 V.S.A. § 4753 is amended to read:

§ 4753.  REVOLVING LOAN FUNDS; AUTHORITY TO SPEND; REPORT

(a)  There is hereby established a series of special funds to be known as:

(1)  The Vermont environmental protection agency (EPA) pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for constructing publicly-owned publicly owned sewage systems and sewage treatment or disposal plants as defined in subdivisions 3501(6) and 3601(3) of this title, for planning or construction of certain privately-owned privately owned wastewater systems, and for implementing related management programs.

(2)  The Vermont pollution control revolving fund which shall be used to provide loans to municipalities, state agencies, and the Vermont housing finance agency, for planning pollution control facilities, for constructing publicly-owned publicly owned pollution control facilities, and for constructing certain privately-owned privately owned wastewater systems and potable water supply systems.

* * *

(8)  The Vermont stormwater management fund which shall be used to provide grants and loans to municipalities, pursuant to rules proposed by the agency of natural resources and enacted by the general assembly, for planning, designing, engineering, constructing, repairing, or improving infrastructure necessary to protect the waters of the state from the adverse impacts of untreated stormwater runoff.  Funds may also be used to plan and establish a process for managing stormwater within or among municipalities.

* * *

(d)  Funds from the Vermont environmental protection agency pollution control fund and the Vermont pollution control revolving fund, established by subdivisions (a)(1) and (2) of this section, may be awarded for:

(1)  the refurbishment or construction of a new or an enlarged wastewater treatment plant with a resulting total capacity of 250,000 gallons or more per day in accordance with the provisions of this chapter and section 1626a of Title 10; or

(2)  the construction of stormwater management facilities as specifically or generally described in Vermont’s nonpoint source management plan, and which are necessary to remedy or prevent pollution of waters of the state, provided, in any year in which the federal grant for the fund established in subdivision (a)(1) of this section does not exceed the amount available to the state in the 2002 federal appropriation, no more than 10 30 percent of that year’s federal and state appropriations to that fund shall be used for the purpose outlined in this subdivision.

* * *

Sec. 8.  10 V.S.A. § 1278 is amended to read:

§ 1278.  OPERATION, MANAGEMENT, AND EMERGENCY RESPONSE PLANS FOR POLLUTION ABATEMENT FACILITIES

(a)  Findings.  The general assembly finds that the state shall protect Vermont’s lakes, rivers, and streams from pollution by implementing programs to prevent sewage spills to Vermont waters and by requiring emergency planning to limit the damage from spills which do occur.

(b)  Planning requirement.  Effective July 1, 2007, the secretary of natural resources shall, upon renewal as part of a permit issued under section 1263 of this title, require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for those portions of each pollution abatement facility that include the treatment facility, the sewage pumping stations, and the sewer line stream crossing. 

(c)  As of July 1, 2010, the secretary of natural resources, as part of a permit issued under section 1263 of this title, shall require a pollution abatement facility, as that term is defined in section 1571 of this title, to prepare and implement an operation, management, and emergency response plan for each permitted facility that portion of each pollution abatement facility that includes the sewage collection systems.  The requirement to develop a plan under this subsection shall be included in a permit issued under section 1263 of this title, and a plan developed under this subsection shall be subject to public review and inspection.

(d)  An operation, management, and emergency response plan shall include the following:

(1)  Identification of those elements of the facility, including collection systems that are determined to be prone to failure based on installation, age, design, or other relevant factors.

(2)  Identification of those elements of the facility identified under subdivision (1) of this subsection which, if one or more failed, would result in a significant release of untreated or partially treated sewage to surface waters of the state.

(3)  A requirement that the elements identified in subdivision (2) of this subsection shall be inspected in accordance with a schedule approved by the secretary of natural resources.

(4)  An emergency contingency plan to reduce the volume of a detected spill and to mitigate the effect of such a spill on public health and the environment.

(c)(e)  The secretary of natural resources shall post publicly notice of an illegal discharge that may pose a threat to human health or the environment on its website within 24 hours of the agency’s receipt of notification of the discharge.

Sec. 9.  10 V.S.A. § 6602(2) is amended to read:

(2)  “Solid waste” means any discarded garbage, refuse, septage, sludge from a waste treatment plant, water supply plant, or pollution control facility and other discarded material including solid, liquid, semi-solid, or contained gaseous materials resulting from industrial, commercial, mining, or agricultural operations and from community activities but does not include animal manure and absorbent bedding used for soil enrichment; high carbon bulking agents used in composting; or solid or dissolved materials in industrial discharges which are point sources subject to permits under the Water Pollution Control Act, chapter 47 of this title.

Sec. 10.  COMPOSTING FACILITY REGULATORY REVIEW

(a)  The general assembly finds that composting is an important management technique necessary for the existing and future management of solid waste in Vermont and for the management of manure and agricultural wastes on farms.  The agency of natural resources, the natural resources board, and the agency of agriculture, food, and markets should work together to protect the environment, assure the continued viability of composting facilities in the state, assure continued composting on farms, and assure that the goals of this section are accomplished.

(b)  Notwithstanding 1 V.S.A. §§ 213 and 214, until July 1, 2010, no composting facility holding a permit under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be required to obtain a permit or a permit amendment under 10 V.S.A. chapter 151, except that a composting facility shall be required to obtain a permit under 10 V.S.A. chapter 151 if:

(1)  development at the composting facility exceeds the scope of the composting facility’s certification under 10 V.S.A. chapter 159, and the development is not authorized by the secretary of natural resources under 10 V.S.A. chapter 159; or

(2)  there is a substantial change at the composting facility, as it exists on the effective date of this act, that would require a permit under 10 V.S.A. chapter 151, and the change is not otherwise authorized by the secretary of natural resources under chapter 10 V.S.A. chapter 159.

(c)  A composting facility that holds a certification by the agency of natural resources under 10 V.S.A. chapter 159 issued after January 1, 2001 shall be allowed to continue operations until July 1, 2010 under the terms of the composting facility’s existing certification, an amendment to the composting facility’s certification, or an interim certification.  Until July 1, 2010, such a composting facility shall not be subject to any requirement of an order under 10 V.S.A. chapter 159, 201, or 211 issued before the effective date of this act that requires the composting facility to obtain a permit under 10 V.S.A. chapter 151 or that is contrary to an authorization, certification, or requirement of the secretary under 10 V.S.A. chapter 159.

(d)  For the purposes of this section, “composting facility” shall mean a facility engaged in the controlled biological decomposition of organic matter through active management to produce, use, or sell a stable humus-rich material but shall not mean sewage or septage or materials derived from sewage or septage.

(e)  On or before July 1, 2008, the agency of natural resources shall convene a study committee to review the existing regulatory requirements for composting in the state and to recommend amendments or improvements to the existing rules governing the construction, alteration, or operation of a composting facility.  The committee shall consist of:

(1)  the secretary of natural resources or his or her designee;

(2)  the secretary of agriculture, food and markets or his or her designee;

(3)  two representatives of the composting association of Vermont, appointed by the association;

(4)  a representative of the Vermont League of Cities and Towns, appointed by the league;

(5)  a representative of an interested environmental group, appointed by the senate committee on committees;

(6)  a representative from the Vermont association of solid waste managers, appointed by the association;

(7)  the state historic preservation officer or his or her designee; and

(8)  a representative of the natural resources board, appointed by the chair of the board.

(f)  The committee shall issue a final report of its findings to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on agriculture by January 15, 2009.  The report shall include:

(1)  Recommended rules for the construction, alteration, or operation of a composting facility;

(2)  Recommendations for increasing public awareness of the benefits of composting;

(3)  Recommendations for increasing awareness within the composting community and those interested in initiating a composting operation of the existing regulations governing composting; and

(4)  The contact information of an individual or department at the agency of natural resources that can assist interested persons in understanding and complying with the agency’s regulations for composting.

Sec. 11.  ANR REPORT ON PHOSPHORUS REDUCTION INCENTIVES

On or before February 1, 2009, the agency of natural resources, as part of the report required under 10 V.S.A. § 1386(d), shall report to the house committee on fish, wildlife and water resources, the senate committee on natural resources and energy, and the house and senate committees on appropriations with a status report on the development of incentives or disincentives for wastewater treatment plants to maintain the 2006 levels of phosphorus discharge to Lake Champlain.

Sec. 12.  SUNSET

Sec. 10 (composting facility regulatory review) of this act shall be repealed on July 1, 2010.  A composting facility that has been operated at any time between June 1, 1970 and July 1, 2010 and which constitutes a development pursuant to 10 V.S.A. § 6001(3)(A), including a composting facility where Act 250 jurisdiction has been formally determined, shall be subject to jurisdiction under 10 V.S.A. chapter 151 as of July 1, 2010.

Sec. 13.  EFFECTIVE DATE

(a)  This section and Secs. 1 (finding), 3 (ANR report on TMDLs), 4 (ANR stormwater TMDL schedule), 5 (transfer of pretransition stormwater permits to a municipality), 6 (transfer of pretransition stormwater permits), 7 (pollution control revolving loan fund), 8 (operation, management, and emergency response plans), 9 (definition of solid waste), 11 (ANR report on phosphorus incentives and disincentives), and 13 (sunset of composting facility review) of this act and 10 V.S.A. § 1386 (Lake Champlain TMDL implementation plan) shall take effect upon passage.

     Which proposal of amendment was considered and concurred in.

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 885

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Adams of Hartland,  the rules were suspended and House bill, entitled

An act relating to developing consistent measurement standards for economic growth;

Was taken up for immediate consideration.

The Senate proposed to the House to amend the bill as follows:

     By striking all after the enacting clause and inserting in lieu thereof the following:

*** Workforce Education and Training ***

Sec. 1.  10 V.S.A. § 543 is amended to read:

§ 543.  WORKFORCE EDUCATION AND TRAINING FUND; GRANT PROGRAMS

* * *

(b)  Purposes.  The fund shall be used exclusively for the following two purposes:

* * *

(2)  internships to provide work-based learning opportunities with Vermont employers for students from Vermont colleges, public and private high schools, regional technical centers, and the Community High School of Vermont, and for students who are Vermont residents attending college, high school, technical or vocational schools out of state.

* * *

(d)  Eligible Activities.  Awards from the fund shall be made to employers and entities that offer programs that require collaboration between employees and businesses, including private, public, and nonprofit entities, institutions of higher education, technical centers, and workforce development programs.  Funding shall be for training programs and student internship programs that offer education, training, apprenticeship, mentoring, or work-based learning activities, or any combination; that employ innovative intensive student‑oriented competency-based or collaborative approaches to workforce development; and that link workforce education and economic development strategies.  Training programs or projects that demonstrate actual increased income and economic opportunity for employees and employers may be funded for more than one year.  Student internships and training programs that involve the same employer may be funded multiple times, provided that new students participate.

* * *

(f)  Awards.  Based on guidelines set by the council, the commissioner of labor shall make awards to the following:

(1)  Training Programs.  Public, private, and nonprofit entities for existing or new innovative training programs.  There shall be a preference for programs that include training for newly created or vacant positions.  Awards may be made to programs that retrain incumbent workers.  Awards under this subdivision shall be made to programs or projects that do all the following:

* * *

(G)  demonstrate an integrated connection between training and employment including an effort and consideration by participating employers to hire those who successfully complete a training program.   If employment is not guaranteed at the successful completion of the training, the applicant must demonstrate employer involvement and that the training is likely to lead to employment in fields in which there is demand for jobs.

(H) The department shall ensure there are resources available in each quarter of the fiscal year.

* * *

*** Workforce Development for Green Industries ***

Sec. 2.  FINDINGS; PURPOSE

(a)  The general assembly finds the following:

(1)  There is a growing global demand for products and services that will reduce the impact on the natural environment by individuals, businesses, governments, and many other entities.

(2)  There is a common international perception that Vermont has a very well‑defined green identity, a reputation developed through years of commitment to environmental integrity.

(3)  Vermont’s resources should be used to build a vibrant and strong environmental industry sector that creates high-wage jobs for Vermonters through the development and export of value‑added products and services designed to reduce our collective impact on the environment.

(4)  Vermont must create a framework that stimulates the innovation and investment necessary to expand the development of new renewable energy sources and distribution capacity.

(5)  Vermont’s economic development strategy must be designed to raise Vermont’s profile as a hub of environmental integrity, innovation, and opportunity for working Vermonters.

(b)  The purpose of this act is to effect the following:

(1)  To understand better and quantify the economic value and market opportunities and benefits of the emerging environmental technology sector in Vermont so that Vermont can derive economic value in the form of job creation, innovation, and development of technologies, products, and services that protect and enhance the environment.

(2)  To formulate a strategy for environmental technology sector workforce development and training and develop programs that promote and market that sector and create a competitive workforce equipped with the necessary skills and competencies to assure that Vermont is strategically positioned to compete effectively in environmental technology industries and the global marketplace and space.

Sec. 3.  WORKFORCE DEVELOPMENT PLAN; ENVIRONMENTAL TECHNOLOGY SECTOR JOB TRAINING; LABOR FORCE ANALYSIS

(a)  For the purposes of this section:

(1)  “Environmental technology employee” means a fulltime employee primarily engaged in providing goods or delivering services in the environmental technology sector.

(2)  “Environmental technology sector” means businesses and organizations that work in or are related to at least one of the following:

(A)  Waste management, including waste collection, treatment, disposal, reduction, recycling, and remediation.

(B)  Natural resource protection and management, including water and wastewater purification and treatment, air pollution control and prevention or remediation, soil and groundwater protection or remediation, and hazardous waste control or remediation.

(C)  Energy efficiency or conservation.

(D)  Clean energy, including solar, wind, wave, hydro, geothermal, hydrogen, fuel cells, waste-to-energy, or biomass.

(E)  Any other environmental technology certified by the secretary of commerce and community development.

(b)  The commissioner of labor in collaboration with the secretary of commerce shall perform a labor force analysis using the inventory of green business developed by the agency of commerce and the North American Industry Classification System (NAICS).  The analysis shall include the geographic distribution of existing businesses and anticipated opportunities for business recruitment in the environmental technology sector.  The analysis shall be issued in a written report to the house committee on commerce and the senate committee on economic development, housing and general affairs no later than February 1, 2009 and shall include:

(1)  Regional profiles that identify the concentration and distribution of environmental technology opportunities in Vermont.

(2)  The skills and competencies necessary for successful employment in the environmental technology sector.

(3)  Projection of employer needs and employee skills required for the future of the environmental technology sector.

(c)  The commissioner of labor shall develop a workforce development plan relating to green building, energy efficiency, and renewable energy industries.  The plan shall be developed in consultation with the following groups:  the apprenticeship program; the building trades; the Vermont workforce development council; the association of weatherization contractors; Efficiency Vermont; Vermont Technical College; the association of general contractors; associated industries of Vermont; Vermont businesses for social responsibility; Vermont fuel dealers association; the coalition for workforce solutions; Renewable Energy Vermont; Vermont small business development centers; the  association of vocational‑technical schools; the association of adult service coordinators; Vermont green building network; the Lake Champlain Regional Chamber of Commerce; the Vermont Chamber of Commerce; the Greater Burlington Industrial Corporation (GBIC) and the green institute for the advancement of sustainability.

* * * Employment Practices ***

Sec. 4.   21 V.S.A. §358 is amended to read:

§ 358. ADMINISTRATION

The commissioner and the commissioner's authorized representatives have full power and authority for all the following:

* * *

(4) To recommend and determine the amount of deductions for board, lodging, apparel, or other items or services supplied by the employer or any other conditions or circumstances as may be usual in a particular employer-employee relationship, including gratuities; provided, however, that in no case shall the total remuneration received by an employee, including wages, board, lodging, apparel, or other items or services supplied by the employer, including gratuities, be less than the minimum wage rate set forth in section 384 of this title.   No deduction may be made for the care, cleaning, or maintenance of required apparel.  No deduction for required apparel shall be made without the employee’s express written authorization and the deduction shall not:

(A)   Reduce the total remuneration received by an employee below the hourly minimum wage.

(B)  Include any administrative fees or charges.

(C)  Amend, nullify or violate the terms and conditions of any collective bargaining agreement.

* * *

Sec. 5.  TASK FORCE; HYBRID ELECTRIC AND ALTERNATIVE POWERED VEHICLES

     (a)  There is hereby created a task force to develop, encourage and create opportunities to build or assemble components in Vermont for plug-in hybrid electric vehicles, or vehicles using other fuel sources, such as hydrogen and compressed natural gas, and to use those vehicles in Vermont and surrounding areas.

     (b)  The task force shall be compromised of the lieutenant governor, who shall chair the task force, the commissioner of public service, and the secretaries of commerce and transportation.

    

(c)  The task force shall:

          (1)  identify incentives available;

          (2)  identify obstacles present; and

          (3)  recommend statutory and regulatory changes to the General Assembly and executive branch agencies to remove obstacles, facilitate the use of incentives, and to otherwise encourage these activities in Vermont.

     (d)  To implement the goals of this task force, the referenced department and the agencies, with the advice and guidance of the task force, and notwithstanding any provision of law to the contrary, are each authorized to:

          (1)  accept in-kind contributions and grants from manufacturers and suppliers capable of assembling, manufacturing and deploying  these components or vehicles, with the approval of the Joint Fiscal Committee;

          (2)  apply for and utilize federal funds from any source as authorized by the funding source, with the approval of the Joint Fiscal Committee;

          (3)  develop and enter into necessary alliances and protocols;

          (4)  spend a portion of their respective budgets to accomplish these objectives with the approval of the Joint Fiscal Committee;

          (5)  enter into agreements; and

          (6)  develop and implement one or more pilot projects;

     (e)  The task force may engage:

          (1)  institutions of higher education to include the Center For Transportation and the Center For Emerging Technology, both at UVM; and

          (2)  technical education centers and STEM education in Vermont secondary schools.

Sec. 6.  EFFECTIVE DATE

This act shall take effect from passage.

and that upon passage, the title of the bill shall be amended to read:  “AN ACT RELATING TO WORKFORCE DEVELOPMENT”

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Botzow of Pownal moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

 

Rep. Smith of Morristown

Rep. Botzow of Pownal

Rep. Kupersmith of South Burlington

Bills Messaged to Senate Forthwith

On motion of Rep. Adams of Hartland, the rules were suspended and the following bills were ordered messaged to the Senate forthwith:

H. 885

House bill, entitled

An act relating to developing consistent measurement standards for economic growth;

S. 112

Senate bill, entitled

An act relating to victims’ compensation;

S. 244

Senate bill, entitled

An act relating to self-storage facilities;

S. 246

Senate bill, entitled

An act relating to electronic access to criminal and family court records;              

S. 297

Senate bill, entitled

An act relating to clarifying the definition of “Stiff Hitch” in the motor vehicle statutes.

Message from the Senate No. 68

     A message was received from the Senate by Mr. Marshall, its Assistant Secretary, as follows:

Madam Speaker:

     I am directed to inform the House that the Senate has considered a bill originating in the House of the following title:

H. 888.  An act relating to miscellaneous tax amendments.

And has passed the same in concurrence with proposals of amendment in the adoption of which the concurrence of the House is requested.

The Senate has considered House proposal of amendment to Senate bill of the following title:

S. 284.  An act relating to the department of banking, insurance, securities, and heath care administration.

And has concurred therein with an amendment in the passage of which the concurrence of the House is requested.

The Senate has considered House proposal of amendment to Senate bill entitled:

S. 350.  An act relating to energy independence and economic prosperity.

And has refused to concur therein and asks for a Committee of Conference upon the disagreeing votes of the two Houses;

The President pro tempore announced the appointment as members of such Committee on the part of the Senate:

          Senator Lyons

          Senator MacDonald

          Senator Hartwell

Pursuant to the request of the House for Committees of Conference on the disagreeing votes of the two Houses on the following House bills the President pro tempore announced the appointment as members of such Committees on the part of the Senate:

H. 560.  An act relating to the offender work programs board.

          Senator Hartwell

          Senator Coppenrath

          Senator Scott

H. 691.  An act relating to executive and judicial branch fees.

          Senator Ayer

          Senator MacDonald

          Senator Maynard

H. 865.  An act relating to Vermont Milk Commission.

          Senator Kittell

          Senator Starr

          Senator Giard

H. 870.  An act relating to the regulations and professions and occupations.

          Senator Coppenrath

          Senator Ayer

          Senator Flanagan

H. 887.  An act relating to health care reform.

          Senator Racine

          Senator Mullin

          Senator White

H. 890.  An act relating to compensation for certain state employees.

          Senator White

          Senator Doyle

          Senator Bartlett

The President announced a change by the Committee on Committees in the members on the part of the Senate of the Committee of Conference upon the disagreeing votes of the two Houses on Senate bill of the following title:

S. 133.  An act relating to the operation of a motor vehicle by junior operators and primary safety belt enforcement.

          Senator Scott

          Senator Sears

          Senator Shumlin

Rep. Kitzmiller of Montpelier in Chair.

Proposal of Amendment Agreed to; Third Reading Ordered

S. 261

Rep. Pugh of South Burlington, for the committee on Human Services, to which had been referred Senate bill, entitled

An act relating to phthalates in products for young children;

Reported in favor of its passage in concurrence with proposal of amendment as follows:

First:  In Sec. 1, subsection (b), following “child care article”, by inserting “intended for use by a child under three years of age if”and following “that” by inserting “product”                

Second:  In Sec. 1, subsection (g), following “The attorney general”, by striking “may investigate and prosecute violations of this section pursuant to the provisions of the Consumer Fraud Act” and inserting in lieu thereof “has the same authority to make rules, conduct civil investigations, enter into assurances of discontinuance, and bring civil actions, and private parties have the same rights and remedies as provided under subchapter 1 of chapter 63 of Title 9

Third:  By adding a subsection (h) as follows:

(h)  Nothing in this section shall be construed to regulate firearms; ammunition or components thereof; pellets from air rifles; shooting ranges or circumstances resulting from shooting, handling, storing, casting, or reloading ammunition; or hunting or fishing equipment or components thereof.

The bill, having appeared on the Calendar one day for notice, was taken up and read the second time.

Pending the question, Shall the House propose to the Senate to amend the bill as recommended by the committee on Human Services?  Rep. Morrissey of Bennington moved that the bill be ordered to lie.

Pending the question, Shall the bill be ordered to lie? Rep. Morrissey  of Bennington demanded the Yeas and Nays, which demand was sustained by the Constitutional number.  The Clerk proceeded to call the roll and the question, Shall the bill be ordered to lie?  was decided in the negative.  Yeas, 41.  Nays, 90.

Those who voted in the affirmative are:


Adams of Hartland

Ainsworth of Royalton

Baker of West Rutland

Bostic of St. Johnsbury

Brennan of Colchester

Canfield of Fair Haven

Clark of Vergennes

Crawford of Burke

Devereux of Mount Holly

Donaghy of Poultney

Donahue of Northfield

Errecart of Shelburne

Flory of Pittsford

Grenier of St. Johnsbury

Hube of Londonderry

Johnson of Canaan

Kilmartin of Newport City

Komline of Dorset

Krawczyk of Bennington

Larrabee of Danville

LaVoie of Swanton

Lawrence of Lyndon

Lewis of Derby

Livingston of Manchester

Marcotte of Coventry

McAllister of Highgate

McDonald of Berlin

McFaun of Barre Town

McNeil of Rutland Town

Morley of Barton

Morrissey of Bennington

Myers of Essex

O'Donnell of Vernon

Oxholm of Vergennes

Peaslee of Guildhall

Scheuermann of Stowe

Turner of Milton

Valliere of Barre City

Wheeler of Derby

Winters of Williamstown

Wright of Burlington


Those who voted in the negative are:


Acinapura of Brandon

Allard of St. Albans Town

Ancel of Calais

Anderson of Montpelier

Andrews of Rutland City

Atkins of Winooski

Audette of S. Burlington

Bissonnette of Winooski

Botzow of Pownal

Branagan of Georgia

Bray of New Haven

Browning of Arlington

Chen of Mendon

Cheney of Norwich

Clarkson of Woodstock

Condon of Colchester

Consejo of Sheldon

Copeland-Hanzas of Bradford

Courcelle of Rutland City

Davis of Washington

Deen of Westminster

Donovan of Burlington

Edwards of Brattleboro

Emmons of Springfield

Evans of Essex

Fallar of Tinmouth

Fisher of Lincoln

Frank of Underhill

French of Randolph

Gervais of Enosburg

Gilbert of Fairfax

Godin of Milton

Grad of Moretown

Haas of Rochester

Head of S. Burlington

Heath of Westford

Helm of Castleton

Hosford of Waitsfield

Howard of Rutland City

Howrigan of Fairfield

Hutchinson of Randolph

Jerman of Essex

Johnson of South Hero

Keenan of St. Albans City

Klein of East Montpelier

Koch of Barre Town

Kupersmith of S. Burlington

Larson of Burlington

Lenes of Shelburne

Leriche of Hardwick

Lippert of Hinesburg

Lorber of Burlington

Maier of Middlebury

Malcolm of Pawlet

Manwaring of Wilmington

Marek of Newfane

Martin, C. of Springfield

Martin of Wolcott

Masland of Thetford

McCormack of Rutland City

McCullough of Williston

Milkey of Brattleboro

Miller of Shaftsbury

Minter of Waterbury

Mitchell of Barnard

Mook of Bennington

Moran of Wardsboro

Mrowicki of Putney

Nease of Johnson

Nuovo of Middlebury

Obuchowski of Rockingham

Orr of Charlotte

Partridge of Windham

Pearson of Burlington

Pellett of Chester

Peltz of Woodbury

Perry of Richford

Peterson of Williston

Potter of Clarendon

Pugh of S. Burlington

Rodgers of Glover

Shand of Weathersfield

Sharpe of Bristol

Smith of Morristown

Spengler of Colchester

Stevens of Shoreham

Sweaney of Windsor

Weston of Burlington

Zenie of Colchester

Zuckerman of Burlington


Those members absent with leave of the House and not voting are:


Aswad of Burlington

Barnard of Richmond

Clerkin of Hartford

Corcoran of Bennington

Dostis of Waterbury

Fitzgerald of St. Albans City

Hunt of Essex

Jewett of Ripton

Keogh of Burlington

Larocque of Barnet

Monti of Barre City

Ojibway of Hartford

Otterman of Topsham

Pillsbury of Brattleboro

Randall of Troy

Symington of Jericho

Trombley of Grand Isle

Westman of Cambridge


 

     Thereupon the recommendation of proposal of amendment offered by the committee on Human Services was agreed to and third reading ordered.

     Speaker Symington in Chair.

Proposal of Amendment Agreed to;  Bill Read the Third Time and

 Passed in Concurrence With Proposal of Amendment

S. 152

Senate bill, entitled

An act relating to prevention of lead poisoning by exposure to lead in consumer products;

 

 

 

Was taken up, and pending third reading of the bill, Rep. Mrowicki of Putney moved to amend the House proposal of amendment as follows:

     In Sec. 2, by striking 9 V.S.A. § 2470h(2)(D) in its entirety and inserting in lieu thereof the following:

(D)  For the purpose of subdivision (2) of this section:

(i)   the term "plumbing fixtures" means pipes, pipe and plumbing fittings, and fixtures used to convey or dispense water for human consumption;

(ii)  the "weighted average" lead content shall be calculated by using the following formula: the percentage of lead content within each component that comes into contact with water shall be multiplied by the percent of the total wetted surface of the entire pipe and pipe fitting, plumbing fitting, or fixture represented in each component containing lead; these percentages shall be added; and the sum shall constitute the weighted average lead content of the pipe and pipe fitting, plumbing fitting, or fixture.

Which was agreed to.

Pending third reading of the bill, Rep. Mrowicki of Putney moved to amend the House proposal of amendment as follows:

     In Sec. 2, by striking 9 V.S.A. § 2470f(3)(D) in its entirety and inserting in lieu thereof the following:

(D)  complies with the most stringent standard for lead in consumer products adopted by federal law, by states with total population of at least 25 million, or by the European Union.

Which was agreed to.

Thereupon, the bill was read the third time and passed in concurrence with proposals of amendment.

Rules Suspended; Senate Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

H. 888

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Adams of Hartland,  the rules were suspended and House bill, entitled

An act relating to miscellaneous tax amendments;

Was taken up for immediate consideration.

The Senate proposed to the House to amend the bill as follows:

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

Sec. 3.  32 V.S.A. § 3757(e)(3) is amended to read:

(3)  of any transfer of ownership.  A transfer of ownership, alone, will not affect eligibility of the parcel, and no new maps will be required solely because of a transfer, but failure to provide maps, a new application, or transfer information to the division of property valuation and review within 30 days of a request being sent by certified mail by the director will result in removal of the parcel from the program.

     Second:  By striking out Secs. 19 and 20  [property tax adjustment information is public]

     Third:  By striking out Sec. 25 [refund appeal is deemed denied if not granted within six months]

     Fourth:  By striking out Sec. 26 [W&M review of three tax credits in 2012]

     Fifth: By striking out Sec. 29 [JFO study of tax expenditures to repeal]

     Sixth:  By striking out Sec. 36 [Essex CLA]

     Seventh:  By striking out Sec. 37 and inserting in lieu thereof a new Sec. 37 to read as follows:

Sec. 37  RATIFICATION OF ENROLLED VERSION OF H. 521 IN NO. 81 ACTS OF 2007

The enrolled version of No. 81 of the Acts of 2007, as published by the Secretary of State in the publication entitled “Acts and Resolves passed by the General Assembly of the State of Vermont, sixty-ninth biennial session, 2007, is hereby expressly ratified as the correct version of No. 81 of the Acts of 2007.  This ratification shall not constitute a reenactment of No. 81, and shall have no effect upon the effective dates in that act.

     Eighth: By striking out Sec. 42 [late-filed property tax adjustment claim]

     Ninth:   By renumbering Sec. 43 as Sec. 113

     Tenth:  By adding Secs. 43 and 44 to read as follows:

* * * Disclosure of Tax Return Information * * *

Sec. 43. Sec. 1.  32 V.S.A. § 3102(d) is amended to read:

(d)  The commissioner shall disclose a return or return information:

* * *

(5)  to the attorney general , if such return or return information relates to Chapter 205 of title 32 or subchapters 1A and 1B of Chapter 19 of Title 33, for purposes of investigating potential violations of and enforcing chapter 40 of Title 7, Subchapter 2A of Chapter 173 of Title 20; and subchapters 1A and 1B of chapter 19 of title 33.

Sec. 44.  32 V.S.A. § 3102(e) is amended to read:

(e)  The commissioner may, in his or her discretion and subject to such conditions and requirements as he or she may provide, including any confidentiality requirements of the Internal Revenue Service, disclose a return or return information:

* * *

(14)  to the office of the state treasurer, only in the form of mailing labels, with only the last address known to the department of taxes of any person identified to the department by the treasurer by name and Social Security number, for the treasurer’s use in notifying owners of unclaimed property.

     Eleventh: By adding Sec. 45 to read as follows:

Sec. 45.  32 V.S.A. § 3802(17) is added to read:

§ 3802.  PROPERTY TAX

The following property shall be exempt from taxation:

* * *

(17)  Real and personal property operated as a skating rink, owned and operated on a nonprofit basis but not necessarily by the same entity, and which, in the most recent calendar year, provided facilities to local public schools for a sport officially recognized by the Vermont Principals’ Association.  Property exempt under this subdivision shall not require a vote under subdivision 3832(7) of this title.

     Twelfth:  By adding Sec. 46 to read as follows:

Sec. 46.  24 V.S.A. § 138(a) is amended to read:

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

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

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

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

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

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

(C)  the combined education tax rate of the municipality will increase by 20 percent or more in fiscal year 1999 or in fiscal year 2000 over the rate of the combined education property tax in the previous fiscal year.

     Thirteenth:  By adding Secs. 47 through 49 to read as follows:

Sec. 47.  32 V.S.A. § 5930b(g) is added to read:

(g)  Employment growth incentive for environmental technology business.

(1)  For purposes of this subsection, an “environmental technology business” means a business that is subject to income taxation in Vermont and whose current or prospective economic activity in Vermont for which incentives are sought under this section is certified by the secretary of commerce and community development to be primarily research, design, engineering, development, or manufacturing activity related to any one or more of the following:

(A)  Waste management, including waste collection, treatment, disposal, reduction, recycling, and remediation.

(B)  Natural resource protection and management, including water and wastewater purification and treatment, air pollution control and prevention or remediation, soil and groundwater protection or remediation, and hazardous waste control or remediation.

(C)  Energy efficiency or conservation.

(D)  Clean energy, including solar, wind, wave, hydro, geothermal, hydrogen, fuel cells, waste-to-energy, or biomass.

(2)  Any application for a Vermont employment growth incentive under this section for an environmental technology business shall be considered and administered pursuant to all provisions of this section, except that:

(A)  the “incentive ratio” pursuant to subdivision 5930b(a)(11) of this title shall be set at 90 percent; and

(B)  the “payroll threshold” pursuant to subdivision 5930b(a)(17) of this title shall be deemed to be 20 percent of the expected average industry payroll growth as determined by the cost-benefit model.

Sec. 48.  32 V.S.A. § 5930b(a)(9) and (23) are amended to read:

(9) "Full-time job" means a permanent position filled by an employee who works at least 37 35 hours each week.

(23) "Vermont gross wages and salaries" means Medicare wages as reported on Federal Tax Form W2 to the extent those wages are Vermont wages , excluding income from non-statutory stock options.

* * * Repeal 2011 Limitation on

Sales Tax Exemption for Aircraft Parts * * *

Sec. 49.  REPEAL

     Secs. 7a and 7b of No. 81 of the Acts of 2007 (sales tax exemption for aircraft parts limited to commercial aircraft only, beginning July 1, 2011) are repealed.

     Fourteenth:  By adding Sec. 50 to read as follows:

Sec. 50.  TAX CREDIT FOR HISTORIC BUILDING REHABILITATION

     An owner awarded a tax credit under the provisions of section 5930n of title 32 for a historic rehabilitation project, who transfers the rehabilitated building to an entity which is tax-exempt under Internal Revenue Code Section 501(c)(3), shall not be liable for the recapture penalty under 32  V.S.A. § 5930n(f)(4)(A), but instead, shall be subject to the recapture penalty under 32 V.S.A. § 5930ff(2).

     Fifteenth:  By adding Sec. 51 to read as follows:

Sec. 51.  24 V.S.A. §5204 is amended to read:

§ 5204. PAYMENT OF FEES

(a) An impact fee or obligation for offsite mitigation shall be a lien upon all property and improvements within land development for which the fee is assessed in the same manner and to the same effect as taxes are a lien upon real estate under section 5061 of Title 32.

(b) A municipality may require payment of an impact fee or accept offsite mitigation before issuance of a zoning or subdivision permit.

(c) A municipality may accept fees on installment at a reasonable rate of interest.

(d) A municipality may require a letter of credit to guarantee future payment of an impact fee or offsite mitigation.

(e)  Notwithstanding the provisions of 16 V.S.A. § 4029(b), a municipality may require that a fee certified as a school impact fee by the general counsel of the department of education shall be paid directly to the school district.

     Sixteenth:  By adding Sec. 52 to read as follows:

Sec. 52.  32 V.S.A. § 6071(b) is amended to read:

(b)  In any case in which it is determined that a claim is or was excessive, the commissioner may impose a ten percent penalty on such excess and if the claim has been paid or credited against property tax or income tax otherwise payable, the credit shall be reduced or canceled, and the proper portion of any amount paid shall be similarly recovered by assessment as income taxes are assessed and such assessment shall bear interest at the rate per annum established from time to time by the commissioner pursuant to section 3108 of this title from the date of payment or, in the case of adjustment of a property tax bill under section 6066a of this title, from December 1 of the year in which the claim is filed, until refunded or paid.

     Seventeenth: By adding Sec. 53 to read as follows:

Sec. 53.  Sec. 5 of No. 213 of the Acts of 1892, as amended by No. 357 of the Acts of 1906, is amended to read:

     Sec. 5.  Said corporation shall have power to purchase and receive for the charitable purposes herein indicated, by gift, bequest, devise or otherwise, real and personal property, and the same to hold, for such purposes only, and to sell and convey the same or any part thereof when expedient in the judgment of the Directors.  No more than fifty thousand dollars in Up to $500,000.00 of the value of the property of said corporation which is used directly as a nonprofit elder residential care home shall be exempt from municipal and education property taxation, and such property, to be so exempt from taxation, shall be located in said Brattleboro.

     Eighteenth:  By adding Secs. 54 through 57 to read as follows:

* * *Health Care Provider Provisions* * *

Sec. 54.  33 V.S.A. § 1953(a)(1) is amended to read:

(1)  Beginning July 1, 2005 January 1, 2008, each hospital's annual assessment, except for hospitals assessed under subdivision (2) of this subsection, shall be 6.0 5.5 percent of its net patient revenues (less chronic, skilled, and swing bed revenues) for the hospital's fiscal year as determined annually by the director from the hospital's financial reports and other data filed with the department of banking, insurance, securities, and health care administration.  The annual assessment shall be based on data from a hospital's third most recent full fiscal year.

Sec. 55.  33 V.S.A. § 1955(a) is amended to read:

(a)  Each Beginning January 1, 2008, each ICF/MR’s annual assessment shall be six 5.5 percent of the ICF/MR’s total annual direct and indirect expenses for the most recently settled ICF/MR audit.

Sec. 56.  33 V.S.A. § 1952(f) is added to read:

(f)  If a health care provider fails to pay its assessments under this subchapter according to the schedule or a variation thereof adopted by the director, the director may deduct these assessments arrears and any late‑payment penalties from Medicaid payments otherwise due to the provider.  The deduction of these assessment arrears may be made in one or more installments on a schedule to be determined by the director.

Sec. 57.  33 V.S.A. § 1954(d) is amended to read:

     (d)  Any nursing home that fails to make a payment to the office on or before the specified schedule, or under any schedule of delayed payments established by the director, shall be assessed not more than $1,000.00.  The director may waive this late-payment assessment provided for in this subsection for good cause shown by the nursing home.  The director may reduce Medicaid claim payments to satisfy all past due provider taxes assessed.

     Nineteenth:  By adding Sec. 58 to read as follows:

Sec. 58.  27 V.S.A. § 1248a is added to read:

27 V.S.A. § 1248a.  ELECTRIC UTILITY COOPERATIVES

     (a)  Electric utility cooperatives organized under or otherwise subject to 30 V.S.A. Chapter 81 shall report capital credits which have been retired and declared payable by the cooperative’s board of directors, but which have not been claimed by the owner in accordance with the provisions of this chapter.   Electric utility cooperatives shall not pay or deliver the unclaimed capital credits to the treasurer.  For purposes of this section, capital credits shall mean those credits to a capital account of a member of an electric utility cooperative which the cooperative is obliged to pay after operating costs and expenses have been paid.

     (b)  The treasurer shall provide notice of unclaimed capital credit properties reported by electric utilities in accordance with the provisions of section 1249 of this title.  In the event of a claim for a capital credit property, the treasurer shall refer the claimant to the appropriate electric utility cooperative who shall evaluate the claim and upon provision of satisfactory proof of ownership shall pay the claimant.

     (c)  The electric utility cooperative shall notify the treasurer of the resolution of all claims for unclaimed property.

     Twentieth:  By adding Secs. 59 and 60 to read as follows:

Sec. 59.  30 V.S.A. §209(d) (7) is amended to read:

     (7)  Net revenues above costs associated with payments from the New England Independent System Operator (ISO‑NE) for capacity savings resulting from the activities of the energy efficiency utility designated under subdivision (2) of this subsection shall be deposited into the electric efficiency fund established by this section and be used by the entity appointed under subdivision (2) of this subsection to deliver fossil fuel energy efficiency services to Vermont heating and process-fuel consumers on a whole-buildings basis to help meet the state’s building efficiency goals established by section 581 of this title.

Sec. 60.  30 V.S.A. §209 (e) (15) is amended to read

(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. The funds made available under subdivision (d) (2) of this section may be used by the efficiency entity appointed under that subdivision to deliver fossil fuel energy efficiency services to Vermont heating and process-fuel consumers on a whole-building basis.

     Twenty-first:  By adding Secs. 61 through 70 to read as follows:

Sec. 61.  24 V.S.A. § 1891 is amended to read:

§ 1891.  DEFINITIONS

When used in this subchapter:

* * *

(6)  “Related costs” means expenses, exclusive of the actual cost of constructing and financing improvements, as defined in subdivision 1751(3) of this title, that are directly related to creation of the tax increment financing district and reimbursement of sums previously advanced by the municipality for those purposes, and attaining necessary to attain the purposes and goals for which the tax increment financing district was created, as approved by the Vermont economic progress council, including administration fees charged by a coordinating agency, finance costs, professional services, and organizational costs such as studies and public notification, but excluding imputed administrative costsAs used in this subdivision, related costs are “improvements” as defined in subdivision 1751(3) of this title.

(7)  “Financing” means any type of indebtedness incurred or financial vehicles used by a municipality to pay for improvements in a tax increment financing district.

Sec. 62.  24 V.S.A. § 1893 is amended to read:

§ 1893.  PURPOSE

The purpose of tax increment financing districts is to provide revenues for improvements, located wholly or partly within that serve the district and related costs, which will stimulate development or redevelopment within the district, provide for employment opportunities, improve and broaden the tax base, or and enhance the general economic vitality of the municipality, the region, or and the state.

Sec. 63.  24 V.S.A. § 1894 is amended to read:

§ 1894.  POWER AND LIFE OF DISTRICT

(a)  A municipality may incur indebtedness against revenues of the tax increment financing districts for a period of up to 20 years following the creation of the district.  The 20-year borrowing period of the district shall commence at 12:01 a.m. on April 1 of the year so voted. Any indebtedness incurred during the borrowing period may be retired over any period authorized by the legislative body of the municipality under section 1898 of this title; provided, however, that the education tax increment may not be retained in excess of 20 years beginning on the date of initial indebtedness.  The district shall continue until the date and hour the indebtedness is retired.

(b)  Notwithstanding subsection (a) of this section, any district created to use education tax increment financing  A municipality that has created a tax increment financing district approved under 32 V.S.A. § 5404a(f) may:

(1)  Incur indebtedness for improvements for the district for a period of up to 20 years, provided that the first indebtedness is incurred within five years following approval of the district pursuant to 32 V.S.A. § 5404a(f), and such that the 20 years for incurring indebtedness begins at the time of initial indebtedness.  Prior to requesting municipal approval to secure financing, the municipality shall provide the council with the proposed financing for approval to assure its consistency with the plan approved pursuant to 32 V.S.A. § 5404a(h).  The council shall also assure the viability and reasonableness of any proposed financing other than bonding and least‑cost financing.  A municipality that has not incurred indebtedness within five years following the creation of the district, shall request reapproval from the Vermont economic progress council in order to utilize education tax increment financing following that period.

(2)  The education tax increment may be retained for a 20‑year period,  provided that the 20‑year period commences within five years following approval of the district pursuant to 32 V.S.A. § 5404a(f).  The retention period shall commence at 12:01 a.m. April 1 of the year following the municipality’s notice to the tax department and the Vermont economic progress council.  If a municipality fails to incur debt within the five‑year period but retains the education tax increment, the municipality shall repay the increment in accordance with section 1900 of this title.

Sec. 64.  24 V.S.A. § 1896 is amended to read:

§ 1896.  TAX INCREMENTS

(a)  In each subsequent year, the listers or assessor shall include no more than the original taxable value of such the real property in the assessed valuation upon which the listers or assessor computes the rates of all taxes levied by the municipality, the school district, and every other taxing district in which the tax increment financing district is situated; but the listers or assessor shall extend all rates so determined against the entire assessed valuation of such real property for that year.  In each year for which the assessed valuation exceeds the original taxable value, the municipality treasurer shall hold apart, rather than remit to the taxing districts, that proportion of all taxes paid that year on the real property in the district which such the excess valuation bears to the total assessed valuation.  The amount so held apart each year is referred to in this act as the “tax increment” for that year.  So much of the tax increments received with respect to the district and pledged and appropriated under section 1897 of this title for the payment of debt service on bonds issued for financing for improvements and related costs shall be segregated by the municipality in a special account on its official books and records until all capital indebtedness of the district has been fully paid.  The final payment shall be reported to the lister or assessor, who shall thereafter include the entire assessed valuation of the district in the assessed valuations upon which tax rates are computed and extended and taxes are remitted to all taxing districts.

(b)  Adjustment upon reappraisal.  In the event of a reappraisal of 20 percent or more of all parcels in the municipality, the value of the original taxable property in the district shall be changed by a multiplier, the denominator of which is the municipality’s education property tax grand list for the property within the district in the year prior to the reappraisal or partial reappraisal and the numerator of which shall be the municipality’s reappraised or partially reappraised education property tax grand list for the property within the districtIn such a district, the The state education property tax revenues for the district in the first year following a townwide reappraisal or partial town‑wide reappraisal shall not be less than the dollar amount of the state education property tax revenues  in the prior year.

Sec. 65.  24 V.S.A. § 1897 is amended to read:

§ 1897.  TAX INCREMENT FINANCING

(a)  The legislative body may pledge and appropriate any part or all of the tax increments received from properties contained within the tax increment financing district for the payment of the principal of and interest on bonds issued for financing of improvements contained wholly or partly within the district and for related costs in the same proportion by which the infrastructure or related costs directly serve the district at the time of approval of the project financing by the council, and in the case of infrastructure essential to the development of the district that does not reasonably lend itself to a proportionality formula, the council shall apply a rough proportionality and rational nexus test; provided, that if any tax increment utilization is approved pursuant to 32 V.S.A. § 5404a(g) 32 V.S.A. § 5404a(f), no more than 75 percent of the state property tax increment and no less than 75 percent of the municipal tax increment may be used to service this debt.  Bonds shall only be issued if the legal voters of the municipality, by a majority vote of all voters present and voting on the question at a special or annual municipal meeting duly warned for the purpose, shall give authority to the legislative body to pledge the credit of the municipality for these purposes. Notwithstanding any provision of any municipal charter, the legal voters of a municipality, by a single vote, shall authorize the legislative body to pledge the credit of the municipality up to a specified maximum dollar amount for all debt obligations to be financed with state property tax increment pursuant to approval by the Vermont economic progress council and subject to the provisions of this section and 32 V.S.A. § 5404a.

(b)  A municipality’s pledge of credit for the purpose of issuing a bond financing improvements under this subchapter and 32 V.S.A. § 5404a shall include notice that if the tax increment received by the municipality from any property tax source is insufficient to pay the principal and interest on the debt in any year, for whatever reason, including a decrease in property value or repeal of a state property tax source, unless determined otherwise at the time of such repeal, the municipality shall remain liable for full payment of the bond principal and interest for the term of indebtedness. 

Sec. 66.  24 V.S.A. § 1898(e) is amended to read:

(e)  Prior to the resolution or ordinance of the local governing body authorizing the bonds issued financing under this section, the legislative body of the municipality shall hold one or more public hearings, after public notice, on a financial plan for the proposed improvements and related costs to be funded, including a statement of costs and sources of revenue, the estimates of assessed values within the district, the portion of those assessed values to be applied to the proposed improvements, the resulting tax increments in each year of the financial plan, the amount of bonded indebtedness or other financing to be incurred, other sources of financing and anticipated revenues, and the duration of the financial plan.  A municipality that has approved the creation of a district under this chapter may designate a coordinating agency to administer the district to ensure compliance with this chapter and any other statutory or other requirements.

Sec. 67.  24 V.S.A. § 1900 is amended to read:

§ 1900. DISTRIBUTION

     In addition to all other provisions of this chapter, with respect to any tax increment financing district, any  of the municipal and education tax increment received in any tax year that exceed the amounts pledged for the payment on principal and interest on the bonds issued for improvements and related costs in the district shall be distributed to the city, town, or village budget in proportion that each budget bears to the combined total of the budgets unless otherwise negotiated by the city, town, or village. Any state education tax increment received in any tax year that exceeds the amount pledged for the payment on principal and interest on the bonds issued for improvements and related costs in the district shall not be remitted to the municipality but shall , an equal portion of each increment may be used only for prepayment of principal and interest on the bonds issued, placed in escrow for bond payment, or otherwise used for defeasance of the bonds; and any remaining portion of the excess municipal tax increment shall be distributed to the city, town, or village budget, in proportion that each budget bears to the combined total of the budgets unless otherwise negotiated by the city, town, or village; and any remaining portion of the excess education tax increment shall be distributed to the education fund.

Sec. 68.  32 V.S.A. § 5404a(f) and (h) are amended and (j) is added to read:

(f)  A municipality that establishes a tax increment financing district under subchapter 5 of chapter 53 of Title 24 shall collect all property taxes on properties contained within the district and apply up to 75 percent of the tax increment as defined in 24 V.S.A. § 1896 to repayment of debt issued to finance financing of the improvements and related costs for up to 20 years pursuant to 24 V.S.A. § 1894, if approved by the Vermont economic progress council pursuant to this section.

(h)  Criteria for approval.  To approve utilization of incremental revenues pursuant to subsection (f) of this section, the Vermont economic progress council shall do all the following:

(1)  Review each application to determine that the new real property development would not have occurred or would have occurred in a significantly different and less desirable manner but for the proposed utilization of the incremental tax revenues.  A district created in a designated growth center under 24 V.S.A. § 2793c shall be deemed to have complied with this subdivision.  The review shall take into account:

* * *

(C)  The amount of additional revenue expected to be generated as a result of the proposed development; the percentage of that revenue that shall be paid to the education fund; the percentage that shall be paid to the municipality; and the percentage of the revenue paid to the municipality that shall be used to pay the municipal tax increment bonds financing incurred for development of the tax increment financing district.

(2)  Process requirements.  Determine that each application meets all of the following four requirements:

* * *

(B)  The municipality has developed a tax increment financing district plan, including: a project description; a development financing plan; a pro forma projection of expected costs and a list of previously advanced related costs to be reimbursed; a projection of revenues; a statement and demonstration that the project would not proceed without the allocation of a tax increment; a projection of types and amount of expected financing; evidence that the municipality is actively seeking or has obtained other sources of funding and investment; and a development schedule that includes a list, a cost estimate, and a schedule for public improvements and projected private development to occur as a result of the improvements.

* * *

          (3) Location criteria. Determine that each application meets one of the following criteria:

(A) The development or redevelopment is compact, high density, and located in or near existing industrial areas.

(B) The majority of land in the proposed district is within an approved growth center, designated downtown, designated village center, or new town center.

(C) The development will occur in an area that is economically distressed, which for the purposes of this subdivision means that the area has experienced patterns of increasing unemployment, a drop in average wages, or a decline in real property values.

(4)  Project criteria.  Determine that the proposed development within a tax incentive increment financing district will accomplish at least three of the following five criteria:

* * *

(C)  The project will affect the mitigation remediation and redevelopment of a brownfield located within the district.  For the purposes of this section, “brownfield” means an area in which a hazardous substance, pollutant, or contaminant is or may be present, and that situation is likely to complicate the expansion, development, redevelopment, or reuse of the property.

* * *

(j)  The state auditor of accounts shall review and audit all active tax increment financing districts every three years.

Sec. 69.  24 V.S.A. § 1901 is added to read:

§ 1901.  INFORMATION REPORTING

     Every municipality with an active tax increment financing district shall:

(1)  On or before December 1 of each year, report to the Vermont economic progress council (VEPC) and the tax department all information described in subsection 5404a(i) of Title 32, in the form prescribed by VEPC.

(2)  Report its tax increment financing actual investment, bond repayments, escrow status, and “related cost” accounting to the Vermont economic progress council according to the municipal audit cycle prescribed in section 1681 of Title 24.

Sec. 70.  Sec. 2i of No. 184 of the Acts of the 2005 Adj. Sess. (2006) is amended to read:

Sec. 2i.  TAX INCREMENT FINANCING DISTRICTS; CAP

Notwithstanding any other provision of law, the Vermont economic progress council may not approve the use of education tax increment financing for more than ten tax increment financing districts and no more than one newly created tax increment financing district in any municipality within the period of five state fiscal years beginning July 1, 2006 2008.  Thereafter no tax increment financing districts may be approved without further authorization by the General Assembly general assembly.

     Twenty-second:  By adding Secs. 71 and 72 to read as follows:

Sec. 71.  Sec. 2j of No. 184 of the Acts of 2006 is amended to read:

Sec. 2j.  EXISTING TAX INCREMENT FINANCING DISTRICTS; MILTON

     Notwithstanding the limitations under 32 V.S.A. § 5404a, the town of Milton may extend for an additional ten years beyond the initial ten years approved for the two existing tax increment financing districts identified and known as the Husky campus and the Catamount Industrial Park, and collect all state and local property taxes on properties contained wholly or partly within the tax increment financing districts beyond the original taxable value of those properties at the time of the initial approval of the tax increment financing districts and apply no more than 75 percent of the increase in the value and liability assessed under 32 V.S.A. § 5402 state property tax increment, and an equal percent of the municipal tax increment, on new real property improvements to repayment of debt issued to finance improvements within the tax increment financing district and for related costs, upon application by the Town of Milton.

Sec. 72.  Sec. 18(b) of No. 184 of the Acts of 2006 is amended to read:

Sec. 18.  EFFECTIVE DATES

(b)  Those provisions of Sec. 2h adding 32  V.S.A. § 5404a(h)(3)(D) [location criteria] are repealed effective July 1, 2008 2009.

     Twenty-third:  By adding Secs. 73 and 74 to read as follows:

Sec. 73.  FY2008 COMMON LEVEL OF APPRAISAL IN WINOOSKI

     The fiscal year 2008 education property tax liability for the City of Winooski shall be recalculated using a common level of appraisal factor of 1.0952; and any resulting overpayment of education property taxes from the City of Winooski to the education fund in fiscal year 2008 shall be credited to the City of Winooski against its fiscal year 2009 education property tax liability.

Sec. 74.  Sec. 38(3) of No. 159 of the Acts of 2000 is amended to read:

(3)  The excess valuation of property within a tax increment financing district organized and created pursuant to Sec. 37 of this act, to the extent that taxes generated on the excess property valuation are pledged and appropriated for debt service on bonds issued under section 1897 of Title 24 or the funding of reserves under subdivision (2) of this section, shall not be included within the education property tax grand list provided for in section 5404 of Title 32 as taxable property, nor shall the excess valuation of the property be subject to the education property tax imposed under section 5402 of Title 32 until bonds issued under section 1897 of Title 24 are released, discharged, paid, defeased, or fully reserved; provided, however, that 5 2.5 percent of the education taxes imposed annually on the excess valuation of the residential property within the district shall be paid to the education fund.  The tax rate assessed on the excess value of property within the district shall be the same rate assessed on property outside the district. Until the bonds are paid in full or have been fully redeemed or defeased through fully funded reserves and accounts, 100 percent of the municipal taxes assessed against the excess valuation of property within the district shall be pledged and appropriated solely for debt service on the bonds.  For purposes of this act, “excess valuation” means the difference between the current grand list value and the grand list value at commencement of the development.

     Twenty-fourth:  By adding Sec. 75 to read as follows:

Sec. 75.  RETROACTIVE APPROVAL OF BURLINGTON TIF FINANCING   

Municipalities that expanded tax increment financing districts under subchapter 5 of chapter 53 of Title 24 by June 30, 1997, as authorized by No. 60 of the Acts of 1997 shall have authority to apply those state and local property taxes assessed on properties within the tax increment financing district to repayment of certificates of participation and HUD section 108 financing issued to finance public improvements within the tax increment financing district . This authority is retroactive to June 30, 1997, and is applicable to certificates of participation and HUD section 108 financing instruments issued after April 1, 1996, and on or before  March 31, 2006. State education property taxes may be used in accordance with this provision for a period of no more than twenty years from the date the debt was incurred. Refinancing such debt shall not extend the twenty-year period for any portion of the debt.

     Twenty-fifth:  By adding Secs. 76 through 80 to read as follows:

Sec. 76.  24 V.S.A. § 1897(a) is amended to read:

(a) The legislative body may pledge and appropriate in equal proportion any part or all of the state and municipal tax increments received from properties contained within the tax increment financing district for the payment of the principal of and interest on bonds issued for improvements contained wholly or partly within the district and for related costs; provided, that if any tax increment utilization is approved pursuant to 32 V.S.A. § 5404a(g)(f), no more than 75 percent of the state property tax increment and no less than 75 an equal percent of the municipal tax increment may be used to service this debt. Bonds shall only be issued if the legal voters of the municipality, by a majority vote of all voters present and voting on the question at a special or annual municipal meeting duly warned for the purpose, shall give authority to the legislative body to pledge the credit of the municipality for these purposes.

Sec. 77.  24 V.S.A. § 1900 is amended to read:

§ 1900. DISTRIBUTION

     In addition to all other provisions of this chapter, with respect to any tax increment financing district, any  of the municipal and education tax increment received in any tax year that exceed the amounts pledged for the payment on principal and interest on the bonds issued for improvements and related costs in the district shall be distributed to the city, town, or village budget in proportion that each budget bears to the combined total of the budgets unless otherwise negotiated by the city, town, or village. Any state education tax increment received in any tax year that exceeds the amount pledged for the payment on principal and interest on the bonds issued for improvements and related costs in the district shall not be remitted to the municipality but shall , an equal portion of each increment may be used only for prepayment of principal and interest on the bonds issued, placed in escrow for bond payment, or otherwise used for defeasance of the bonds; and any remaining portion of the excess municipal tax increment shall be distributed to the city, town, or village budget, in proportion that each budget bears to the combined total of the budgets unless otherwise negotiated by the city, town, or village; and any remaining portion of the excess education tax increment shall be distributed to the education fund.

Sec. 78.  REPEAL

32 V.S.A. § 5404a(e) (allocations) is repealed.

Sec. 79.  32 V.S.A. § 5404a(g) is amended to read:

(g)  Any allocation approved pursuant to subsection (e) of this section or utilization of tax increment approved under subsection (f) of this section shall be in addition to any other payments to the municipality under chapter 133 of Title 16.  Allocations and tax Tax increment utilizations approved pursuant to subsections (e) and subsection (f) of this section shall affect the education property tax grand list and the municipal grand list of the municipality under this chapter beginning April 1 of the year following approval and shall remain available to the municipality for the full period authorized or 20 years following the date of initial indebtedness, whichever is earlier, and restricted only to the extent that the real property development giving rise to the increased value to the grand list fails to occur within the authorized period.

Sec. 80.  32 V.S.A. § 5404a(h)(2) is amended to read:

(2)  Process requirements. Determine that each application meets all of the following four requirements:

* * *

(B)  The municipality has developed a tax increment financing district plan, including: a project description; a development financing plan; a pro forma projection of expected costs; a list of previously advanced related costs to be reimbursed; a projection of revenues; a statement and demonstration that the project would not proceed without the allocation of a tax increment; a projection of the amount of expected indebtedness; evidence that the municipality is actively seeking or has obtained other sources of funding and investment; and a development schedule that includes a list, a cost estimate, and a schedule for public improvements and projected private development to occur as a result of the improvements.

* * *

     Twenty-sixth:  By inserting Sec. 81 to read as follows:

Sec. 81.  ENERGY STAR APPLIANCES

     Notwithstanding the provisions of chapter 233 of title 32 and section 138 of title 24, no sales and use tax or local option sales tax shall be imposed or collected on sales from July 14, 2008, through July 20, 2008, to individuals for personal use, of Energy Star appliances with a purchase price of $2000.00 or less.

     Twenty-seventh: By adding Secs. 82 through 112 to read as follows:

Sec. 82.  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. 83.  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. 84.  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. 85.  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. 86.  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. 87.  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. 88.  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. 89.  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. 90.  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. 91.  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. 92.  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. 93.  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. 94.  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. 95.  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. 96.  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. 97.  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. 98.  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. 99.  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. 100.  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. 101.  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. 102.  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. 103.  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. 104.  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. 105.  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. 106.  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. 107.  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 section 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. 108.  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;

* * *

* * *E-Business Taxation* * *

Sec. 109.  32 V.S.A. § 5811(26) is added to read:

          (26)  “E-business” means a business entity which, during the entire taxable year:

                    (A) was not a corporation subject to the provisions of subchapter C of chapter of the Internal Revenue Code;

                    (B)  was not a member of an affiliated group or engaged in a unitary business with one or more members of an affiliated group; did not perform any activities in this state which would constitute doing business for purposes of income taxation, other than activities described in subdivisions (15)(C)(i), fulfillment operations, and (ii), Web page or Internet site maintenance, of this section;

                    (C) used mainly computer, electronic, and telecommunications technologies in its formation and in the conduct of its business meetings, in its interaction with shareholders, members and partners, and in executing any other formal requirements.

Sec. 110.  32  V.S.A. § 5911 is amended to read:

§ 5911. TAXATION OF AN S CORPORATION AND ITS SHAREHOLDERS

(a) An S corporation shall not be subject to the tax imposed by section 5832 of this title, except to the extent of income taxable to the corporation under the provisions of the Internal Revenue Code.

(b) For the purposes of section 5823 of this title, each shareholder's pro rata share of the S corporation's income attributable to Vermont and each resident shareholder's pro rata share of the S corporation's income not attributable to Vermont shall be taken into account by the shareholder in the manner provided in Section 1366 of the Code.

     (c)  An S corporation and its shareholders shall not be subject to the tax imposed by section 5832 of this title or to the provisions of this subchapter 10A if the S corporation qualifies as, and elects to be taxed as, an E-business for the taxable year.

Sec. 111.  32 V.S.A. § 5921a is added to read:

§ 5921.  E-business election.

     A partnership or limited liability company and its partners or members shall not be subject to the tax imposed by section 5832 of this title or to provisions of this subchapter 10B if the partnership or company qualifies as, and elects to be taxed as, an E-business for the taxable year.

Sec. 112.  32 V.S.A. § 5832a is added to read:

§ 5832a.  E-BUSINESS FRANCHISE TAX

     (a)  There is imposed upon every business entity which qualifies as, and has elected to be taxed as, an E-business, an annual franchise tax equal to the greater of 0.025% of the current value of the tangible and intangible assets of the company or $250.00, but in no case more than $500,000.00.

     (b)  The franchise tax under this section shall be reported and paid in the same manner as the tax under section 5832(2)(B) of this title.

     Twenty-eighth:  [Effective Dates]  In Sec. 113 (renumbered from the original Sec. 43 in the bill as passed the House), and by striking out subsection (6) (effective date for Secs. 19 and 20); and inserting subsections (12) through (18) to read as follows:

          (12)  Sec. 45 of this act (property tax exemption for skating rinks) shall apply to grand lists for April 1, 2008 and 2009 only.

          (13)  Sec. 48 of this act (amendment of VEGI definitions; “full-time job” at 35 hours and “wages” excluding stock options) shall take effect retroactively from January 1, 2007.

     (14)  Sec. 52 of this act (interest due on repayment of an excessive property tax adjustment) shall apply to property tax adjustment claims filed in 2008 and after.

          (15)  Sec. 53 of this act ($500,000 property tax exemption for the Brattleboro Holton Home) shall apply notwithstanding any other provision of law, and shall apply to property taxes for fiscal years 2006 and after.  This provision shall be added to the annotation for 32 V.S.A. § 3802.

          (16) Sec. 71 of this act (equal percentage of education tax increment and municipal tax increment required to be used by Town of Milton for tax increment financing) shall take effect July 1, 2008. 

          (17) Sec. 76 of this act (proportional use of education and municipal tax in TIF financing) shall apply to tax increment financing districts approved pursuant to 32 V.S.A. § 5404a.

          (18)  Secs.109 through 112 of this act (E-business taxation) shall apply to taxable years 2008 and after.

Twenty-ninth:  By striking out Sec. 27 [relating to repeal of the property tax exemption for Civil and Spanish American war veterans] in its entirety.

     And by renumbering the sections of the bill and internal references to be numerically correct.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Smith of Morristown moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Smith of Morristown

Rep. Otterman of Topsham

Rep. Peterson of Williston

Rules Suspended; Senate Proposal of Amendment to

House Proposal of Amendment Not Concurred in;

Committee of Conference Requested and Appointed

S. 284

Pending entrance of the bill on the Calendar for notice, on motion of Rep. Adams of Hartland,  the rules were suspended and Senate bill, entitled

An act relating to department of banking, insurance, securities, and health care administration;

Was taken up for immediate consideration.

The Senate concurred in the House proposal of amendment with a further amendment thereto, as follows:

 By striking out Sec. 13 in its entirety and inserting in lieu thereof Secs. 13, 14, and 15 to read as follows:

Sec. 13.  33 V.S.A. § 1908a is amended to read:

§ 1908a.  VERMONT PARTNERSHIP FOR LONG-TERM CARE

(a)  The secretary of human services or his or her designee, in consultation with a manner agreed to by the commissioner of banking, insurance, securities, and health care administration, shall establish by rule on or before January 1, 2009 the Vermont partnership for long-term care program.

(b)  The program shall provide Medicaid extended coverage to an individual receiving long-term care services if there is federal participation for such coverage, and if the individual:

(1)  is or was covered by a long-term care insurance policy issued under chapter 154 of Title 8 that provides coverage for three years of long-term care services in an amount which, in combination with other resources available to the individual, is sufficient to permit the individual to pay for the individual's own care while the policy remains in force and that is precertified by the department of banking, insurance, securities, and health care administration pursuant to subsection (c) of this section; and

(2)  meets any other requirements for approval of participation under the program; and

(3)  has exhausted coverage and benefits under the long-term care insurance policy as required by the program.

(c)(1)  The department of banking, insurance, securities, and health care administration shall adopt rules for precertification of long-term care partnership policies, and for the information needed to evaluate the partnership program, and to establish training requirements for producers who sell any long-term care insurance policies.

(2)  The department of banking, insurance, securities, and health care administration shall consider whether all precertified policies should require:

(A)  protection against loss of benefits due to inflation;

(B)  coverage of individual assessment and case management;

(C)  a minimum level of covered benefits, including coverage of longterm care services as defined in subsection (g) of this section;

(D)  the option of a nonforfeiture benefit;

(E)  a level premium;

(F)  information to the purchaser about available consumer information and public education provided by the department of banking, insurance, securities, and health care administration and the office of Vermont health access; and

(G)  program information, using the uniform data set developed by other states with long-term care partnership programs, and reports necessary to document the extent of the Medicaid resource protection offered and to evaluate the partnership for long-term care.

(2)  The department of banking, insurance, securities, and health care administration shall not require all long-term care partnership insurance policies to be federally tax-qualified long-term care insurance policies precertify a policy as a partnership policy only if:

(A)  the policy covers an insured person who was a resident of Vermont at the time coverage first became effective under the policy;

(B)  the policy meets the definition of a “qualified long-term care insurance policy” pursuant to Section 7702B(b) of the Internal Revenue Code of 1986, as amended;

(C)  the policy issue date is subsequent to the date of approval of the state plan amendment establishing the partnership program;

(D)  the policy meets the requirements of the specific components of the National Association of Insurance Commissioners’ long-term care insurance model act and model regulation listed in 42 U.S.C. § 1936p(b)(5), or satisfies such additional components as the commissioner of banking, insurance, securities, and health care administration determines to be beneficial to consumers;

(E)  the policy is consistent with Section 27 of the National Association of Insurance Commissioners’ long-term care insurance model regulation concerning the right to reduce coverage and lower premiums, or satisfies such additional components as the commissioner of banking, insurance, securities, and health care administration determines to be beneficial to consumers;

(F)  the policy includes inflation protection for purchasers aged 61 to 76 and compound annual inflation protection for purchasers under age 61; and

(G)  the issuer of the policy provides regular reports to the secretary, in accordance with regulations of the secretary, that include notification regarding when benefits provided under the policy have been paid and the amount of such benefits paid, notification regarding when the policy otherwise terminates, and such other information as the secretary determines may be appropriate to the administration of such partnerships.

(3)  The department of banking, insurance, securities, and health care administration shall not impose any requirement affecting the terms or benefits of qualified long-term care partnership policies unless the commissioner imposes such a requirement on all long-term care insurance policies sold in this state without regard to whether the policy is covered under the partnership or is offered in connection with such partnership.

(4)  The department of banking, insurance, securities, and health care administration shall adopt rules that require producers who sell any long-term care insurance policies to be trained in and demonstrate understanding of the protections offered to purchasers of long-term care insurance and how the insurance relates to public and private coverage of long-term care.  The rules shall require that every producer selling, soliciting, or negotiating any long-term care insurance complete a one-time training course and ongoing training every 24 months thereafter. The one-time training shall be specific to long-term care insurance and shall be no less than eight hours. The rules shall also require that every producer selling, soliciting, or negotiating any long-term care insurance complete no less than four hours of continuing education specific to long-term care insurance for every 24-month period thereafter as part of the continuing education requirements set forth in chapter 131 of Title 8. The producer training shall at a minimum satisfy the specific requirements set forth in chapters 131 and 154 of Title 8, section 9 of the National Association of Insurance Commissioners’ long-term care insurance model act, and such additional components as the commissioner of banking, insurance, securities, and health care administration determines to be beneficial to consumers. The rules shall also establish standards for producer commissions.

(5)  The department of banking, insurance, securities, and health care administration, in consultation with the department of disabilities, aging, and independent living, shall adopt rules establishing standards for coverage of long-term care services as defined in subsection (f) of this section. The rules shall establish minimum levels and durations of benefits that must be provided in every long-term care insurance policy.

(6)  The department of banking, insurance, securities, and health care administration shall adopt rules establishing procedures for the insured to appeal an adverse determination of the carrier concerning a denial of coverage under a long-term care insurance policy, reimbursement for long-term care services, rejection of an application or renewal of a policy for long-term care insurance, conversion of a long-term care policy, or the availability, delivery, or quality of long-term care services.

(7)  The department of banking, insurance, securities, and health care administration shall adopt rules establishing requirements related to offers to exchange partnership program policies for previously issued policies.

(8)  The department of banking, insurance, securities, and health care administration shall adopt rules establishing requirements for the personal worksheet that issuers of long-term care insurance policies present to applicants pursuant to 8 V.S.A. § 8084b.  The rules shall establish minimum asset levels that the personal worksheet will recommend as the minimum level suitable for the purchase of long-term care insurance.

(9)  The agency of human services through the department for children and families and the department of disabilities, aging, and independent living shall provide information and technical assistance to the department of banking, insurance, securities, and health care administration concerning the department of banking, insurance, securities, and health care administration’s role of assuring that any individual who sells a long-term care insurance policy under the partnership receives training and demonstrates evidence of an understanding of such policies and how they relate to other public and private coverage of long-term care. The department of banking, insurance, securities, and health care administration shall ensure that this information is incorporated into the producer training program.

(d)  The secretary or his or her designee may enter into reciprocal agreements with other states to extend the benefits of the Vermont partnership for long-term care program to Vermont residents who had purchased qualified long-term care insurance policies in other states.

(e)  The agency and the department of banking, insurance, securities, and health care administration shall make available consumer information regarding the long-term care partnership program.  The secretary and commissioner may allocate responsibilities for providing consumer information between the agency and department.

(f)  As used in this section:

(1)  “Long-term care services” includes means necessary or medically necessary diagnostic, preventative, therapeutic, rehabilitative, maintenance, or personal care services provided in a setting other than an acute care unit of a hospital. Such services include care, treatment, maintenance, and services:

(A)  provided in a nursing facility;

(B)  provided in a residential care home or assisted living residence;

(C)  provided by a home care services agency, certified home health agency, or long-term home health care program;

(D)  provided by an adult day care program;

(E)  provided by a personal care provider licensed or regulated by any other state or local agency; and

(F)  such other long-term care services as determined by the secretary or his or her designee for which medical assistance is otherwise available under the Medicaid program.

(2)  “Medicaid extended coverage” means eligibility for medical assistance without regard to the resource requirements of the Medicaid program resources in an amount equal to the amount of the benefits paid under the long-term care partnership policy and without regard to the an amount equal to the amount of the benefits paid under the long-term care partnership policy in any recovery of medical assistance from the estates of individuals and the imposition of liens pursuant to the requirements of the Medicaid program; provided, however, that nothing in this section shall prevent the imposition of a lien or recovery against property of an individual on account of medical assistance incorrectly paid.  Nothing in this section shall modify what medical assistance is covered by Medicaid.

Sec. 14.  STATE PLAN AMENDMENT

No later than July 1, 2008, the secretary of human services or his or her designee, in a manner agreed to by the commissioner of banking, insurance, securities, and health care administration, shall submit an application to the Centers for Medicare and Medicaid Services seeking approval of an amendment to the state Medicaid plan pursuant to 42 U.S.C. § 430.12 specifying that an amount equal to the benefits paid by certified long-term care insurance partnership policies shall be disregarded in Medicaid eligibility determinations and exempted from estate recovery.

Sec. 15.  EFFECTIVE DATE

This act shall take effect July 1, 2008, except for Secs. 2, 13, 14, and 15 (this section) which shall take effect upon passage.

Pending the question, Will the House concur in the Senate proposal of amendment? Rep. Kitzmiller of Montpelier moved that the House refuse to concur and ask for a Committee of Conference, which was agreed to, and the Speaker appointed as members of the Committee of Conference on the part of the House:

Rep. Kitzmiller of Montpelier

Rep. Pugh of South Burlington

Rep. Livingston of Manchester

 

Committee of Conference Appointed

S. 350

     Pursuant to the request of the Senate for a Committee of Conference on the disagreeing votes of the two Houses on Senate bill, entitled

     An act relating to energy independence and economic prosperity;

     The Speaker appointed as members of the Committee of Conference on the part of the House:

   Rep. Cheney of Norwich

   Rep. Lavoie of Swanton

               Rep. Mitchell of Barnard

Member Replaced on Committee of Conference

H. 617

The Speaker announced that he has appointed Rep. Pellett of Chester to replace Rep. Jewett of Ripton and has appointed Rep. Flory of Pittsford as Chair on the Committee of Conference on House bill, entitled

An act relating to guardianships.

Adjournment

At six o’clock and thirty minutes in the evening, on motion of Rep. Komline of Dorset, the House adjourned until tomorrow at ten o’clock in the forenoon.

 

 

 

 

 

 



Published by:

The Vermont General Assembly
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Montpelier, Vermont


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