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Journal of the Senate

________________

Thursday, May 1, 2008

The Senate was called to order by the President.

Devotional Exercises

Devotional exercises were conducted by the Reverend Shannon Holmes of Montpelier.

Message from the House No. 68

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

     I am directed to inform the Senate the House has considered Senate proposals of amendment to House bills of the following titles:

     H. 112.  An act relating to victims compensation.

     H. 685.  An act relating to enforcement of environmental laws.

     H. 700.  An act relating to sale of bottles of wine at festivals.

     H. 873.  An act relating to the cleanup of Lake Champlain and other state waters.

     H. 881.  An act relating to the role of electric and gas utilities in facilitating the deployment of communications facilities throughout the state.

And has severally concurred therein.

Pursuant to the request of the Senate for a Committee of Conference upon the disagreeing votes of the two Houses on House bill of the following title:

H. 599.  An act relating to boating while intoxicated and driving while intoxicated.

The Speaker has appointed as members of such committee on the part of the House:

                                         Rep. Lippert of Hinesburg

                                         Rep. Gervais of Enosburg

                                         Rep. Allard of St. Albans Town

Pursuant to the requests of the Senate for Committees of Conference upon the disagreeing votes of the two Houses on Senate bills of the following titles, the Speaker has appointed as members of such committees on the part of the House:

S. 246.  An act relating to electronic access to criminal and family court records.

                                         Rep. Grad of Moretown

                                         Rep. Keenan of St. Albans City

                                         Rep. Condon of Colchester

S. 297.  An act relating to clarifying the definition of “stiff hitch” in the motor vehicle statutes.

                                         Rep. Brennan of Colchester

                                         Rep. Monti of Barre City

                                         Rep. Peaslee of Guildhall

The Speaker has announced a change in appointees of the Committee of Conference on House bill of the following title:

H. 635.  An act relating to reports of child abuse or neglect.

And has replaced Rep. Fisher of Lincoln with Rep. Marek of Newfane.

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

S. 114.  An act relating to enhancing mental health parity.

S. 342.  An act relating to Lake Champlain commemorative motor vehicle plates.

And has adopted the same on its part.

The House has considered a proposed amendment to the Vermont Constitution originating in the Senate of the following title:

Prop. 5.  Proposal to amend the Vermont Constitution to allow the voter’s oath or affirmation to be self-administered.

And has adopted the same in concurrence.

The House has adopted a joint resolution of the following title:

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.

In the adoption of which the concurrence of the Senate is requested.


Joint Resolution Placed on Calendar

J.R.H. 64.

Joint resolution originating in the House of the following title was read the first time and is as follows:

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.

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.

Thereupon, in the discretion of the President, under Rule 51, the joint resolution was placed on the Calendar for action tomorrow.

Rules Suspended; House Proposal of Amendment Concurred In

S. 152.

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House proposal of amendment to Senate bill entitled:

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

Was taken up for immediate consideration.

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

Sec. 1.  FINDINGS

The general assembly finds that:

(1)  Lead is highly toxic to humans, particularly to young children.

(2)  Exposure to lead can cause irreversible damage that results in long-lasting, permanent neurological damage, such as decreases in I.Q. scores.

(3)  Lead exposure has also been shown to be associated with school failure, delinquency, and criminal behavior.

(4)  There is no safe level of lead for humans.  Recent medical evidence has demonstrated that serious adverse health effects appear at extremely low blood levels.  Moreover, the effects of lead exposure are cumulative, and exposure to a very small amount of lead dust over time can cause a serious increase in lead levels in blood.

(5)  There are multiple sources of lead exposure, including lead-based paint; soil; certain children’s products; water fixtures; and certain occupational environments.

(6)  Although federal law limits the amount of lead in residential paint and in surface coatings on children’s products, it does not set specific caps on lead in children’s products generally or in other consumer products.

(7)  There is no reason for children’s products made with lead to be sold or marketed in Vermont, or for not taking reasonable steps to reduce lead in all consumer products.

Sec. 2.  9 V.S.A. chapter 63, subchapter 1C is added to read:

Subchapter 1C.  Lead in Consumer Products

§ 2470e.  DEFINITIONS

As used in this subchapter:

(1)  “Children’s product” means any consumer product marketed for use by children under the age of 12, or whose substantial use or handling by children under 12 years of age is reasonably foreseeable, including toys, furniture, jewelry, vitamins and other supplements, personal care products, clothing, food, and food containers and packaging.

(2)(A)  “Contain or containing lead,” unaccompanied by a specific standard, means containing or having a surface coating containing the following amount of lead by weight of lead or lead compound, unless the commissioner of health, in consultation with the attorney general by rule, reduces this percentage generally or with respect to specific products:

(i)  0.06 percent as of October 1, 2008;

(ii)  0.03 percent as of July 1, 2009; and

(iii)  0.01 percent as of January 1, 2010.

(B)  If the standard set under this subsection is preempted by a federal standard as to any class of products, then “contain (or containing) lead,” unaccompanied by a specific standard, means the lowest such federal standards and federal effective dates applicable to such a class of products.

(3)  “Nonresidential paints and primers” does not mean artists’ supplies.

§ 2470f.  PROHIBITION OF LEAD IN CHILDREN’S PRODUCTS

Except to the extent specifically preempted by federal law, no person shall manufacture, regardless of location, for sale in, offer for sale, sell in or into the stream of commerce, or otherwise introduce into the stream of commerce in Vermont any children’s product any component part of which contains lead.  This prohibition shall not apply to:

(1)  any part of a children’s product that is not accessible to a child through normal and reasonably foreseeable use and abuse of such product.  A component part is not accessible under this section if such component part is not physically exposed by reason of a sealed covering or casing and does not become physically exposed through reasonably foreseeable use and abuse of the product, except that paint, coatings, and electroplating shall not be considered barriers that would render lead in the substrate inaccessible to a child under this subdivision;

(2)  any component of a children’s product that is intended for children age eight and under, that complies with any more stringent federal or European Union standard for lead in consumer products or with a similar standard applicable in states with a total population of 25 million, and that is contained within a battery compartment that cannot be opened without a coin, screwdriver, or other common household tool; or

(3)  any power cord, USB cable, audio-visual cable, jack, connector, or similar device or component used in connection with or attached to a children’s product that:

(A)  conducts electric current;

(B)  is not a small part, as defined by the Consumer Product Safety Commission in 16 C.F.R. part 1501;

(C)  does not have a casing or coating that contains lead; and

(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.

§ 2470g.  PROHIBITION OF LEAD IN JEWELRY

Except to the extent specifically preempted by federal law and in addition to the prohibition in section 2470f of this subchapter, no person shall manufacture, regardless of location, for sale in, offer for sale, or sell in or into the stream of commerce, or otherwise introduce into the stream of commerce in Vermont any article of jewelry or other metal decorative item containing lead that is not a children’s product as defined in section 2470e of this title, where the article, or any detachable part of the article, is the size of a small part as defined by the Consumer Product Safety Commission in 16 C.F.R. part 1501, unless the article is:

(1)  expressly and prominently advertised as adult jewelry;

(2)  not commonly understood to be an article for use by a child under age 12; and

(3)  accompanied by a point-of-sale disclosure prescribed by the attorney general to the effect that the article may contain lead at or above the prevailing legal limit for lead in children's products, if that is true.

§ 2470h.  CONSUMER WARNINGS; NOTIFICATION; PHASE-OUTS

Except to the extent specifically preempted by federal law:

(1)  Wheel weights.  Beginning January 1, 2010, the state of Vermont shall not use wheel weights containing lead in vehicles owned by the state or vehicles operated by the state under a long-term lease.  Beginning September 1, 2011, no person shall sell or offer for sale in or into the state of Vermont a new motor vehicle with wheel weights containing lead.

(2)(A)  Plumbing fixtures and related supplies.  As prescribed by the attorney general, beginning January 1, 2009, and ending December 31, 2009, any person who sells or offers for sale in or into the state of Vermont plumbing fixtures whose wetted surfaces contain more than a weighted average of 0.25 percent lead, shall clearly and conspicuously post a warning at the point of sale, stating that these products contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure.

(B)  Beginning January 1, 2010, no person shall sell or offer for sale in or into the state of Vermont, or use in the state of Vermont, solder or flux for plumbing containing more than 0.2 percent lead, or plumbing fixtures whose wetted surfaces contain more than a weighted average of 0.25 percent lead.

(C)  As prescribed by the attorney general, beginning January 1, 2009, any person who sells or offers for sale in or into the state of Vermont solder or flux containing more than 0.2 percent lead shall clearly and conspicuously post a warning at the point of sale, stating that these products contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure.

(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.

(3)  Nonresidential paints and primers.  As prescribed by the attorney general, beginning January 1, 2009, and ending December 31, 2010, any person who sells or offers for sale in or into the state of Vermont nonresidential paints and primers containing lead shall clearly and conspicuously post a warning at the point of sale, stating that these products contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure.  Beginning January 1, 2011, no person shall sell or offer for sale in or into the state of Vermont nonresidential paints or primers containing lead.  Beginning January 1, 2012, no person shall use nonresidential paints or primers containing lead in the state of Vermont.

(4)  Salvage building materials.  As prescribed by the attorney general, beginning January 1, 2009, any person in commerce who sells or offers for sale in or into the state of Vermont salvage building materials made prior to 1978 shall clearly and conspicuously post a warning at the point of sale, stating that these products may contain lead and shall also provide to each buyer prior to sale information on the risks of lead exposure. 

(5)  Other.  The attorney general, in consultation with the commissioner of health, may by rule require warnings, notifications, or a combination of these relating to other products containing lead.

§ 2470i.  PROHIBITION ON REMOVAL OF LABELS

No person in commerce shall remove from a consumer product any warning label affixed to it that relates in whole or part to lead or lead hazards and which label is required by this state, the federal government, or any other state or country.

§ 2470j.  PROHIBITION ON PROVIDING SUBSTANTIAL ASSISTANCE

No person shall provide substantial assistance to a person in violation of section 2470f, 2470g, 2470h, or 2470i of this section with knowledge or reason to know of the violation. 

§ 2470k.  VIOLATIONS

(a)  A violation of this subchapter is deemed to be a violation of section 2453 of this title.

(b)  The attorney general 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 this chapter.

§ 2470l.  SCOPE

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

(b)  Nothing in this act shall be construed to alter the existing authority of the agency of natural resources to regulate the lead content of products used in connection with fishing and hunting.

Thereupon, the question, Shall the Senate concur in the House proposal of amendment?, was decided in the affirmative.

Rules Suspended; Reports of Committees of Conference Accepted and Adopted on the Part of the Senate

S. 114.

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to enhancing mental health parity.

Was taken up for immediate consideration.

Senator Racine, for the Committee of Conference, submitted the following 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:

S. 114.  An act relating to enhancing mental health parity.

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House proposal of amendment and that the title of the bill be amended to read:

     AN ACT RELATING TO ENHANCING REGULATION FOR PROGRESS TOWARD MENTAL HEALTH PARITY.

                                                                        DOUGLAS A. RACINE

                                                                        JEANETTE K. WHITE

                                                                        KEVIN J. MULLIN

                                                                 Committee on the part of the Senate

                                                                        MICHAEL FISHER

                                                                        PATSY FRENCH

                                                                        MARY A. MORRISSEY

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

S. 342.

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to Lake Champlain commemorative motor vehicle plates.

Was taken up for immediate consideration.

Senator Collins, for the Committee of Conference, submitted the following 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:

S. 342.  An act relating to Lake Champlain commemorative motor vehicle plates.

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House proposal of amendment

                                                                        DONALD E. COLLINS

                                                                        RICHARD T. MAZZA

                                                                        PHILIP B. SCOTT

                                                                 Committee on the part of the Senate

                                                                        PATRICK M. BRENNAN

                                                                        DAVID E. POTTER

                                                                        ALBERT AUDETTE

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

H. 432.

Appearing on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act establishing Juneteenth national freedom day.

Was taken up for immediate consideration.

Senator Miller, for the Committee of Conference, submitted the following 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:

H. 432.  An act establishing Juneteenth national freedom day.

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment and that the bill be further amended in Sec. 1, subdivision (4), by adding the word commemorative immediately preceding the phrase “state holiday

                                                                        HINDA MILLER

                                                                        WILLIAM H. CARRIS

                                                                        DOUGLAS A. RACINE

                                                                 Committee on the part of the Senate


                                                                        CHRISTOPHER PEARSON

                                                                        TIMOTHY JERMAN

                                                                        SANDRA GRENIER

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Committee of Conference Appointed

H. 353.

An act relating to employee free choice for bargaining representative.

Was taken up.  Pursuant to the request of the House, the President announced the appointment of

                                         Senator Illuzzi

                                         Senator Condos

                                         Senator Shumlin

as members of the Committee of Conference on the part of the Senate to consider the disagreeing votes of the two Houses.

Rules Suspended; Bills Messaged

On motion of Senator Shumlin, the rules were suspended, and the following bills were ordered messaged to the House forthwith:

H. 353, H. 432.

Rules Suspended; Bills Delivered

On motion of Senator Shumlin, the rules were suspended, and the following bills were ordered delivered to the Governor forthwith:

S. 114, S. 152, S. 342.

Recess

On motion of Senator Shumlin the Senate recessed until 3:00 P.M.

Called to Order

At 3:20 P.M. the Senate was called to order by the President.

Message from the House No. 69

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:


Mr. President:

     I am directed to inform the Senate the House has

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

S. 171.  An act relating to discharge of a mortgage by an attorney.

S. 283.  An act relating to managed care organizations and the Blueprint for Health.

S. 290.  An act relating to agricultural water quality financing.

S. 297.  An act relating to clarifying the definition of “stiff hitch” in the motor vehicle statutes.

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

S. 364.  An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee nuclear facility.

And has adopted the same on its part.

The House has adopted joint resolutions of the following titles:

J.R.H.  49.  Joint resolution urging Congress to adopt an emergency bank and homeowner protection act.

J.R.H.  65.  Joint resolution relating to the “disciplines,” or rules, being developed as part of the general agreement on trade in services (GATS).

In the adoption of which the concurrence of the Senate is requested.

Joint Resolutions Referred

J.R.H. 49.

Joint resolution originating in the House of the following title was read the first time and is as follows:

Joint resolution urging Congress to adopt an emergency bank and homeowner protection act.

     Whereas, the continuing financial crisis involving home mortgages and lending, credit, and investment practices in the United States threaten to undermine the Vermont economy and the aspirations of Vermonters for a better life, and

Whereas, an increasing number of Vermonters are faced with foreclosure and loss of their homes over the coming months, despite the mitigating effects of Vermont’s commitment to land use planning and Vermont’s judicious banking climate, and

Whereas, Vermont’s first quarter foreclosure rate rose 37 percent compared to last year from 308 to 423, and while it is still among the lowest in the nation is a cause for concern, and

Whereas, hedge funds which encourage speculation in financial markets worldwide contributed to this crisis, and those markets are now facing great and destabilizing volatility and  are calling for government bailout of their securities and derivatives, and

Whereas, the nominal value of these mortgage-based derivatives alone could exceed the total gross domestic product of many nations, and

Whereas, this financial crisis challenges the integrity of the financial system in the U.S., and the run on deposits at Countrywide Financial Corporation in California on August 16, 2007 and the collapse of Bear-Stearns are recent examples, and

Whereas, similar failures at other financial institutions could undermine the economic stability of our state and communities, and

Whereas, in the 1930s, the federal government intervened to protect banks and homeowners, believing that the nation required special safeguards for home ownership to promote social and economic stability, now therefore be it.

Resolved by the Senate and House of Representatives:

That the general assembly urges Congress to enact emergency homeowners and bank protection legislation that protects families and state and federally chartered financial institutions from negative consequences of foreclosure actions, and be it further

Resolved: That the secretary of state be directed to send a copy of this resolution to the President and to the Vermont Congressional Delegation.

Thereupon, in the discretion of the President, under Rule 51, the joint resolution was treated as a bill and referred to the Committee on Economic Development, Housing and General Affairs.

J.R.H. 65.

Joint resolution originating in the House of the following title was read the first time and is as follows:

Joint resolution relating to the “disciplines,” or rules, being developed as part of the General Agreement on Trade in Services (GATS).

Whereas, the current round of negotiations at the World Trade Organization (WTO), called the “Doha Round,” appears to be gaining momentum, and

Whereas, included in the Doha Round is a Working Party on Domestic Regulation (WPDR) that is negotiating “disciplines,” or rules, to be part of the General Agreement on Trade in Services that other countries could use to challenge state laws or administrative regulations in some circumstances, and

Whereas, on January 23, 2008, the chairman released a fourth draft of these proposed rules which would apply to sectors in which the United States has made commitments under the General Agreement on Trade in Services, and

Whereas, the chair of the WPDR has asked nations to finish consulting with domestic regulators before the next meeting in mid-May of this year, and

Whereas, GATS covers over 90 service sectors in the United States, and the domestic regulation rules could affect state and local regulation of energy, clean air and climate, utility infrastructure, health insurance, health facilities, higher education, coastal zone management, commercial zoning, and distribution of goods, and

Whereas, the most recent draft of the domestic regulation rules does not recognize and protect non-discriminatory state policy objectives, but only federal or “national” policy objectives, in contrast to the provisions of an earlier draft, and

Whereas, many service sectors are areas traditionally regulated by states, and the federal government plays little or no regulatory role, and

Whereas, recognizing only federal policy objectives could be problematic in situations in which there is no federal policy but there are important state policies and could result in very important state policy objectives being discounted or ignored, and

Whereas, this provision on “national” policy objectives has obvious and serious consequences for federalism and the right of state governments to set policy objectives in sectors where regulation is traditionally reserved to the states, and

Whereas, the chairman’s draft also requires that regulations be based on “objective criteria,” which could challenge criteria that provide for a balancing of interests or consideration of the public interest, such as when the public service board considers whether to grant certain certificates of public good, and

Whereas, the chairman’s draft also requires that regulations be “relevant to the supply of services to which they apply,” which threatens laws that have criteria related to other issues, such as the environmental or quality-of-life considerations including, for example, the impact of a shopping center on a nearby residential neighborhood, and

Whereas, the chairman’s draft requires that regulations be “pre-established,” a vague requirement that fails to specify before what event or time

pre-establishment must take place and that may rule out permit conditions that are developed, for example, as part of a municipal or state permitting process, as required by Vermont law in order to assure that undue impacts to valuable resources do not take place and to enable land use permits to be issued, and

Whereas, the chairman’s draft also prohibits laws from being a “disguised restriction on trade,” a term which was not construed as being limited to concealed or unannounced measures by the WTO’s Appellate Body in a decision that determined that the condition existed in a case involving completely transparent measures, and

Whereas, the chairman’s draft also would require that licensing and qualification procedures be “as simple as possible,” a vague requirement that is left to a dispute panel to further define and that may limit the ability of states to set the appropriate level of complexity necessary to achieve regulatory objectives, and

Whereas, in the past, the United States negotiators commendably have resisted “necessity” tests and other attempts to expand the scope of these potentially intrusive disciplines, now therefore be it

Resolved by the Senate and House of Representatives:

That the U.S. negotiators be commended for their past opposition to provisions such as those specified in this resolution, and be it further

Resolved:  that U.S. negotiators be urged to continue to resist language in the current draft specified in this resolution that might undermine principles of U.S. federalism and constitutional guarantees of state and local authority, and be it further

Resolved:  that the secretary of state be directed to provide copies of this resolution to Vermont’s congressional delegation, the Intergovernmental Policy Advisory Committee, the National Conference of State Legislatures, the United States Trade Representative, the office of the President of the United States, and Governor of Vermont James Douglas.

Thereupon, in the discretion of the President, under Rule 51, the joint resolution was treated as a bill and referred to the Committee on Economic Development, Housing and General Affairs.


Senate Resolution Placed on Calendar

S.R. 29.

Senate resolution of the following title was offered, read the first time and is as follows:

     By Senators Campbell, McCormack, Nitka, Shumlin, White, Ayer, Carris, Kitchel and Mullin,

     S.R. 29.  Senate resolution relating to the Connecticut River Valley Flood Control Commission.

Whereas, the state of Vermont entered into the Connecticut River Flood Control Compact along with the states of New Hampshire, Massachusetts and Connecticut on September 8, 1953, and

Whereas, the Connecticut River Valley Flood Control Commission was created by the compact to provide a joint or common agency through which the signatory states may more effectively cooperate in accomplishing the objective of flood control and water resource utilization in the basin of the Connecticut River and its tributaries, and

Whereas, central to the compact is the agreement of the down-river states of Connecticut and Massachusetts to reimburse the up-river states of Vermont and New Hampshire for the amount of taxes lost to their political subdivisions by reason of federal ownership of lands, rights and other property taken for the flood control dams, facilities and reservoirs in New Hampshire and Vermont, and

Whereas, the compact provides that the commission determine each year the amount of the tax loss to be reimbursed based on a formula employing the tax rate then current in the municipality applied to the assessed value of the property which may include revaluation resulting from any general revaluation of the property in the municipalities in which a flood control dam or reservoir or portion thereof is located, and

Whereas, while the compact provides for an annual determination of the amount of tax loss, it appears that no annual determination has been made in the 25 years since the Commission agreed to “freeze” the tax loss amounts in 1982, and

Whereas, while the valuation of the lands in the up-river states in which the flood control facilities, dams and reservoirs are located has increased enormously in the past quarter century, and the value of the property protected from flood damage in the down-river states has increased even more, it appears that the amount of tax loss payments made to municipalities in Vermont and New Hampshire has not been adjusted accordingly as called for by the compact, now therefore be it

Resolved by the Senate:

That the Connecticut River Valley Flood Control Commission is requested to review the rationale and authority for freezing the amount of tax loss payments since 1982, determine the amount of tax loss payments that would be due based upon current assessments and revaluation of the subject property, and report its findings, determinations and recommendations to the Vermont General Assembly, and be it further

Resolved:  That the Secretary of the Senate be directed to send a copy of this resolution to the Connecticut River Valley Flood Control Commission in Greenfield, Massachusetts, to the selectboards of the municipalities in Vermont affected by the compact - including Norwich, Thetford, Hartland, Hartford, Springfield, Weathersfield, Perkinsville, Jamaica, Townshend and Londonderry - and to the Vermont Congressional delegation.

Thereupon, in the discretion of the President, under Rule 51, the resolution was placed on the Calendar for action tomorrow.

Rules Suspended; Reports of Committees of Conference Accepted and Adopted on the Part of the Senate

H. 290.

Pending entry on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and the report of the Committee of Conference on House bill entitled:

An act relating to the underground utility damage prevention system.

Was taken up for immediate consideration.

Senator Miller, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

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

H. 290.  An act relating to the underground utility damage prevention system.

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  30 V.S.A. § 7001(4) is amended and (11), (12), (13), and (14) are added to read:

(4)  “Excavation activities” means activities involving the removal of earth, rock or other materials in the ground, disturbing the subsurface of the earth, or the demolition of any structure, by the discharge of explosives or the use of powered or mechanized equipment, including but not limited to digging, trenching, blasting, boring, drilling, hammering, post driving, wrecking, razing, or tunneling, within 100 feet of an underground utility facility.  Excavation activities shall not include the tilling of the soil for agricultural purposes, routine home gardening with hand tools outside easement areas and public rights-of-way, activities relating to routine public highway maintenance, or the use of hand tools by a company, or the company’s agent or a contractor working under the agent’s direction, to locate or service the company’s facilities, provided the company has a written damage prevention program.

(11)  “Powered or mechanized equipment” means equipment that is powered or energized by any motor, engine, or hydraulic or pneumatic device and that is used for excavation or demolition work.

(12)  “Hand tools” means tools powered solely by human energy.

(13)  “Verified” means the location and depth have been physically determined by hand digging.

(14)  “Damage prevention program” means a program established to ensure employees involved in excavation activities are aware of and utilize appropriate and safe excavating practices.

Sec. 2.  30 V.S.A. § 7004(e) is added to read:

(e)  Notice of excavation activities shall be valid for an excavation site until one of the following occurs:

(1)  The excavation is not completed within 30 days of the notification;

(2)  The markings become faded, illegible, or destroyed; or

(3)  The company installs new underground facilities in a marked area still under excavation.

Sec. 3.  30 V.S.A. § 7006b is amended to read:

§ 7006b.  EXCAVATION AREA PRECAUTIONS

Any person engaged in excavating activities in the approximate location of underground utility facilities marked pursuant to section 7006 of this title shall take reasonable precautions to avoid damage to underground utility facilities, including but not limited to any substantial weakening of the structural or lateral support of such facilities or penetration, severance or destruction of such facilities.  When excavation activities involve horizontal or directional boring, the person engaged in excavation activities shall expose underground facilities to verify their location and depth, in a safe manner, at each location where the work crosses will cross a facility and at reasonable intervals when paralleling an underground facility.  Powered or mechanized equipment may only be used within the approximate location where the facilities have been verified.

Sec. 4.  30 V.S.A. § 7008 is amended to read:

§ 7008.  PENALTIES

(a)  Vermont Digsafe Program.  Any person or company who violates any provisions of sections 7004, 7006, 7006a, 7006b, or 7007 of this title shall be subject to a civil penalty of up to $1,000.00 not more than $500.00 for the first offense, not more than $1,000.00 for the second offense within one year of the date of the first offense, not more than $1,500.00 for the third offense within one year of the first offense, and not more than $5,000.00 for the fourth or subsequent offense within one year of the date of a previous offense, in addition to any other remedies or penalties provided by law or any liability for actual damages.  For the purposes of this subsection, “the date of the first offense” means the date on which the violation occurred, not the date on which the adjudication of the offense resulted.

(b)  Any company which does not mark the location of its underground facilities as required by section 7006 or 7006a of this title shall be subject to a civil penalty of up to $1,000.00.

* * *

(e)  Any person who violates any provisions of sections 7004 through 7007 of this title as to an underground gas distribution or transmission facility shall also be subject to the civil penalties described in section 2816 of this title.  However, a person who has been assessed a civil penalty pursuant to section 2816 of this title shall not be subject to the payment of an assessed penalty under the provisions of this section for the same violation.

Sec. 5.  APPEAL PROCESS FOR PENALTIES FOR UNDERGROUND UTILITY DAMAGE PREVENTION SYSTEM VIOLATIONS

The department of public service, in collaboration with the public service board and companies and contractors using the underground utility damage prevention system, shall develop a streamlined appeal process before an independent adjudicator for the purpose of appealing fines assessed pursuant to 30 V.S.A. § 7008(a). 

Sec. 6.  30 V.S.A. § 2816(a) is amended to read:

(a)  Gas Pipeline Safety Program.  Any person who violates any statute, rule, regulation, or order of the public service board relating to safety standards or safety practices applicable to transportation of gas through gas pipeline facilities subject to the jurisdiction of the public service board is subject to a civil penalty of not more than $10,000.00 $100,000.00 for each violation for each day that the violation persists.  However, the maximum civil penalty shall not exceed $500,000.00 $1,000,000.00 for any related series of violations.  The penalty may be imposed by the board after notice to the offending person of the alleged violations and opportunity for hearing.

Sec. 7.  REPEAL

30 V.S.A. § 7004(d)(2) is repealed January 1, 2010.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO THE VERMONT DIG SAFE PROGRAM AND THE FEDERAL GAS PIPELINE SAFETY PROGRAM.

                                                                        HINDA MILLER

                                                                        PHILIP B. SCOTT

                                                                        VINCENT ILLUZZI

                                                                 Committee on the part of the Senate

                                                                        JUDITH M. LIVINGSTON

                                                                        MICHEL A. CONSEJO

                                                                        ERNEST W. SHAND

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

H. 636.

Pending entry on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and the report of the Committee of Conference on House bill entitled:

An act relating to embezzlement by a public official.

Was taken up for immediate consideration.

Senator Mulling, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

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

H. 636.  An act relating to embezzlement by a public official.

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  13 V.S.A. § 2537 is amended to read:

§ 2537.  PERSON HOLDING PROPERTY IN OFFICIAL CAPACITY OR BELONGING TO THE STATE OR A MUNICIPALITY

A state, county, town, or municipal officer or other person who in his or her official capacity receives, collects, controls, or holds money, obligations, or securities belonging to a corporation, public or private, or to a private person, or other property, who embezzles or fraudulently converts to his or her own use any of such money, obligations or, securities, or other property, or a person who embezzles or fraudulently converts to his or her own use, money or other property belonging to the state or to a county or municipality, or a municipal corporation, or a special purpose district, shall be guilty of larceny and shall be imprisoned not more than ten years or fined not more than $1,000.00, or both.

Sec. 2.  13 V.S.A. § 7554 is amended to read:

§ 7554.  RELEASE PRIOR TO TRIAL

(a)  Any person charged with an offense, other than a person held without bail under section 7553 or 7553a of this title, shall at his or her appearance before a judicial officer be ordered released pending trial in accordance with this section.

* * *

(2)  If the judicial officer determines that conditions of release imposed to assure appearance will not reasonably protect the public, the judicial officer may in addition impose the least restrictive of the following conditions or the least restrictive combination of the following conditions which will reasonably assure protection of the public:

(A)  Place the person in the custody of a designated person or organization agreeing to supervise him or her.

(B)  Place restrictions on the travel, association, or place of abode of the person during the period of release.

(C)  Require the person to participate in an alcohol or drug treatment program.  The judicial officer shall take into consideration the defendant’s ability to comply with an order of treatment and the availability of treatment resources.

(D)  Impose any other condition found reasonably necessary to protect the public, except that a physically restrictive condition may only be imposed in extraordinary circumstances.

(E)  If the person is a state, county, or municipal officer charged with violating section 2537 of this title, the court may suspend the officer’s duties in whole or in part, if the court finds that it is necessary to protect the public.

* * *

Sec. 3.  24 V.S.A. § 176 is amended to read:

§ 176.  DEPUTY CLERK

A county clerk may, subject to the approval of the assistant judges, appoint one or more deputies who may perform the duties of clerk for whose acts he or she shall be responsible and whose deputations he or she may revoke at pleasure.  A record of the appointments shall be made in the office of the clerk.  In case of the death of the clerk or his or her inability to act, the deputy or deputies in order of appointment shall perform the duties of the office until a clerk is appointed.  In case of the suspension of the clerk’s duties as a condition of release pending trial for violating 13 V.S.A. § 2537, the assistant judges of the county shall appoint a person to perform the duties of the office until the charge of violating 13 V.S.A. § 2537 is resolved.  If the assistant judges cannot agree upon appointing a person, the judge of the superior court of the county shall make the appointment.  The compensation for the deputy clerk shall be fixed by the assistant judges and paid for by the county.  Such compensation may include such employment benefits as are presently provided to state employees including, but not limited to, health insurance, life insurance, and pension plan, the expense for which shall be borne by the county and the employees.

Sec. 4.  24 V.S.A. § 211 is amended to read:

§ 211.  APPOINTMENT; VACANCY

Biennially, on February 1, the assistant judges of the superior court shall appoint a treasurer for the county who shall hold office for two years and until his or her successor is appointed and qualified.  If such treasurer dies or in the opinion of the assistant judges becomes disqualified, they may appoint a treasurer for the unexpired term.  If the treasurer has his or her duties suspended as a condition of release pending trial for violating 13 V.S.A. § 2537, the assistant judges of the county shall appoint a person to perform the duties of the treasurer until the charge of violating 13 V.S.A. § 2537 is resolved.  If the assistant judges cannot agree upon whom to appoint, the auditor of accounts shall make the appointment.

Sec. 5.  24 V.S.A. § 961 is amended to read:

§ 961.  VACANCY OR SUSPENSION OF OFFICER’S DUTIES

(a)  When a town officer resigns his or her office, or has been removed therefrom, or dies, or becomes insane or removes from town, such office shall become vacant.  Notice of this vacancy shall be posted by the legislative body in at least two public places in the town, and in and near the town clerk’s office, within 10 days of the creation of the vacancy.

(b)  In the event there are so many vacancies on the selectboard that a quorum cannot be achieved, the remaining selectperson or selectpersons shall be authorized to draw orders for payment of continuing obligations and necessary expenses until the vacancies are filled pursuant to section 963 of this title.

(c)  The legislative body of a county, municipality, or special purpose district may designate a person to perform the duties of an officer whose duties have been suspended as a condition of release pending trial for violating 13 V.S.A. § 2537.

Sec. 6.  32 V.S.A. § 167(b) is amended to read:

(b)  In connection with any of his or her duties, the auditor of accounts may administer oaths and may subpoena any person to appear before him or her. Such persons shall testify under oath and be subject to the penalties of perjury, and may be examined concerning any matter relating to the statutory duties of the auditor provided by section 163 of this title.  Nothing in this subsection shall limit a person’s fifth amendment rights against self‑incrimination.

                                                                        KEVIN J. MULLIN

                                                                        RICHARD W. SEARS, JR.

                                                                        JOHN F. CAMPBELL

                                                                 Committee on the part of the Senate

                                                                        MARGARET K. FLORY

                                                                        AVIS L. GERVAIS

                                                                        KATHY D. PELLETT

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

H. 709.

Pending entry on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and the report of the Committee of Conference on House bill entitled:

An act relating to campgrounds.

Was taken up for immediate consideration.

Senator Illuzzi, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

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

H. 709.  An act relating to campgrounds.

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment with further amendment in Sec. 3, 9 V.S.A. § 4470(b), by striking out subdivision (2) in its entirety, renumbering the remaining subdivisions to be numerically correct and in the newly numbered subdivision (3), by adding at the end before the period the following: , which may include a rule that requires campers to respect the peace and quiet enjoyment of other campers and the owner, operator, or agent

                                                                        VINCENT ILLUZZI

                                                                        HINDA MILLER

                                                                        WILLIAM H. CARRIS

                                                                 Committee on the part of the Senate

                                                                        KURT WRIGHT

                                                                        IRA TROMBLEY

                                                                        BILL BOTZOW

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.


H. 865.

Pending entry on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and the report of the Committee of Conference on House bill entitled:

An act relating to the Vermont milk commission.

Was taken up for immediate consideration.

Senator Kittell, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

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

H. 865.  An act relating to Vermont milk commission.

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment with further amendment by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  Sec. 4 of No. 50 of the Acts of 2007 is amended to read:

Sec. 4.  VERMONT MILK COMMISSION ESTABLISHMENT OF A MINIMUM PRODUCER PRICE

(a)  The Vermont milk commission shall establish by rule order pursuant to its authority under chapter 161 of Title 6 a minimum producer price that is designed to achieve a price by which the cost of picking up the milk and hauling the milk from the farm to the purchaser will be paid by the purchaser reflect the cost of production

(b)  The cost of picking up the milk and hauling the milk from the farm to the purchaser will be paid by the purchaser.  Notwithstanding 6 V.S.A. § 2925(d), hauling and stop charges of milk loaded at the farm shall not be charged back to the selling dairy farmer.  No additional charges shall be made, and no costs may be shifted from other benefits the farmer receives to contravene the purpose of this act.  Nor shall any funds be transferred away from the farmer in paid producer differentials or any premiums the farmer would receive, but for this act.

Sec. 2.  Sec. 6(c) of No. 50 of the Acts of 2007 is amended to read:

(c)  The milk commission shall commence the rulemaking process necessary to implement the provisions of Sec. 4 of this act within 60 days of the effective date of this act.  The rule order shall take effect when, by rule, legislation, or other agreement, New York and one other state in the Northeast Marketing Area, Federal Order 1, have accomplished the purpose of Sec. 4 of this act or on January 15, 2009 July 1, 2010, whichever comes first.

Sec. 3.  6 V.S.A. § 2922 is amended to read:

§ 2922.  VERMONT MILK COMMISSION; MEMBERSHIP

(a)  There shall be a Vermont milk commission, to consist of seven nine members, one member of which shall be the secretary of agriculture, food and markets.  The secretary shall be chair of the commission and serve without compensation.  A quorum shall be a majority of the commission.  The commission shall act only by an affirmative vote of at least six members.  The remaining commission members shall serve for terms of three years, except for the legislative members who shall serve for the term of their election, and be chosen as follows:

* * *

(5)  One member from the house committee on agriculture chosen by the speaker and one member from the senate committee on agriculture chosen by the president pro tempore of the senate.  For attendance at a meeting when the general assembly is not in session, these two legislative members shall be entitled to the same per diem compensation and reimbursement of necessary expenses as provided members of standing committees under 2 V.S.A. § 406.

(b)  All expenditures under this subchapter shall be paid from the receipts hereunder.

Sec. 4.  6 V.S.A. § 2923 is amended to read:

§ 2923.  ADMINISTRATIVE WORK

The Vermont agency of agriculture, food and markets shall perform the administrative work of the commission as directed by the commission.  The commission shall may reimburse the agency of agriculture, food and markets for the cost of services performed by the department agency.  The commission may enter into contracts with and employ technical experts and authorize and retain legal counsel, and other such officers, agents, and employees as are necessary to effect the purposes of this chapter, and may fix their qualifications, duties, and compensation.  The contract remuneration and employment compensation shall be paid from the Vermont milk commission fund and shall be subject to the limitations of section 2924 of this chapter.


Sec. 5.  6 V.S.A. § 2924 is amended to read:

§ 2924.  POWERS AND DUTIES; PRICING AUTHORITY; PUBLIC HEARINGS

(a)  Authority over milk prices.  The commission may establish an equitable minimum or maximum price, or both, and the manner of payments, which shall be paid producers or associations of producers by handlers, and the prices charged consumers and others for fluid milk used in dairy products by distributors or handlers.

(b)  Equitable minimum producer prices.  The commission may establish by rule order after notice and hearing an equitable minimum price to be paid to dairy producers for milk produced in Vermont on the basis of the use thereof in the various classes, grades, and forms.  Because of the need to react immediately to changing market conditions and prices, an equitable minimum price may be established by emergency rule.  Prices so established which exceed federal order prices shall be collected by the commission from the handlers for distribution to dairy producers as a blend price.  The cost of the contracts and employment pursuant to section 2923 of this title and of administering the collection and distribution of these moneys shall be covered by such moneys, not to exceed $50,000.00 $100,000.00.

* * *

(c)  Public hearings.  In order to be informed of the status of the state's dairy industry, the commission shall hold a public hearing:

(1)  At least annually.

(2)  Whenever the price paid to producers in Vermont, including the federal market order price and any over-order premiums, on average, has been reduced $0.50 or more for the previous month, except when such increase is attributable to normal seasonal changes in price by five percent or more over the last month or by 10 percent or more over the last three months.

(3)  Whenever the retail price, on average, has increased by more than $0.08 10 percent per gallon within a three-month period or $0.32 15 percent per gallon within a 12-month period.

(4)  Whenever the cost of production increases by 10 percent or more within a period of 3 to 12 months.

(5)  Whenever a loss or substantial lessening of the supply of fluid dairy products of proper quality in a specified market has occurred or is likely to occur and that the public health is menaced, jeopardized, or likely to be impaired or deteriorated by the loss or substantial lessening of the supply of fluid dairy products of proper quality in a specified market.

* * *

(e)  Premiums on handlers and distributors for milk used in dairy products sold at retail in Vermont.  The commission may assess a premium on handlers and distributors for milk used in dairy products sold at retail in Vermont.  The premiums assessed and received shall be paid to the state treasury and deposited in the special fund established pursuant to section 2938 of this chapter.  The proceeds of the premium shall be distributed to dairy producers as a blend price.  Any applicable provision of subsections 2925(b)-(f) of this title shall apply to the assessment of such premiums.  In assessing these premiums, the commission shall also take into account any similar assessments made by other New England states.

Sec. 6.  6 V.S.A. § 2925 is amended to read:

§ 2925.  MINIMUM PRODUCER PRICE REGULATION

(a)  The commission may make, rescind, or amend a rule an order regulating minimum producer prices if the commission finds that the federal milk marketing order minimum price is adequate or inadequate as the case may be to ensure that the price paid to dairy producers will cover the costs of milk production and provide a reasonable economic return to dairy producers sufficient to ensure a stable milk production and distribution system in Vermont.  The commission may amend or rescind a rule without a public hearing when necessary to conform the price with an increase in the federal market order price.

(b)  Guidelines for setting prices.  In setting equitable minimum prices, the commission may investigate and ascertain what are reasonable costs and charges for producing, hauling, handling, processing and any other services performed in respect to fluid dairy products.  The board commission shall take into consideration the balance between production and consumption of milk dairy products, the costs of production and distribution, the purchasing power of the public and the price necessary to yield a reasonable return to the producer producers, handlers, and to the distributors.

* * *

(2)  Minimum retail prices should reflect the lowest price at which milk purchased from Vermont producers can be received, processed, packaged, and distributed by handlers and distributors at a just and reasonable return.

(3)  In establishing minimum producer and retail prices, the commission shall make applicable findings regarding the competitive position of Vermont producers and their costs, handler and distributor costs, and reasonable rates of return, and actual handler and distributor rates of return.

* * *

(e)  Purchases by or sales to authorized officials of any town or city charity or public welfare department or by charitable organizations approved by the city or town officials for charitable uses, and school lunch milk, shall be exempt from the price-fixing provisions of this chapter.

(f)  This chapter shall apply to milk produced outside the state subject to regulation by the state in the exercise of its constitutional police powers.  Any sale or purchase by distributors or handlers of such milk within this state at a price less than a regulated minimum price shall be unlawful.

(g)  This section shall not apply to a producer-handler with an annual production of one million pounds of milk or less.

Sec. 7.  6 V.S.A. § 2929 is amended to read:

§ 2929.  POWER TO MAKE ORDERS AND CONDUCT HEARINGS; REGULATIONS

(a)  In administering this section and sections 2675, 2725, 2726, 2921-2928, and 2931-2933 of this title chapter, the commission shall have the power to make orders hereunder, conduct hearings, subpoena, and examine under oath producers, handlers, and distributors, their books, records, documents, correspondence, and accounts, and any other person it deems necessary to carry out the purposes and intent of said sections this chapter.

(b)  Any order issued under this chapter shall only be made final after a public hearing and after publication of a proposed order for public review and comment for 30 days following the publication of the proposed order.

(1)  The commission shall provide notice of the hearing on the proposed order to interested persons in accordance with the applicable provisions of 3 V.S.A. § 809(b), and to the public by advertisement in the newspapers of record approved by the secretary of state under 3 V.S.A. § 839(d).  The notice shall include proposed regulatory procedures for administration of the pricing order, as appropriate, and otherwise provide sufficient notice and explanation of the potential operation and impact of the order, including proposed findings and conclusions consistent with the requirements of section 2925 of this chapter.

(2)  Interested persons shall not be considered “parties” and, except as otherwise specifically provided by subsection (c) of this section, the provisions of 3 V.S. A. chapter 25 relating to contested cases shall not apply to the procedure for the conduct of the hearing, the issuance of a proposed pricing order, or the promulgation of a final order.  The hearing on the proposed order shall be held in accordance with the applicable provisions of 3 V.S.A. § 840(c) and (d), other than the provisions therein relating to notice and the requirements of 3 V.S.A. § 832a.   The hearing procedure shall provide for the establishment of a formal record of sworn evidence received, matters officially noticed, questions and offers of proof submitted by interested persons, and any proposed findings presented.

(3)  The final order shall contain separate findings of fact and conclusions responsive to the requirements of section 2925 of this chapter and based exclusively on the evidence presented at the hearing and on matters officially noticed.  The final order shall also provide specific response to any submissions filed by interested persons, including proposed findings.  The final order shall be issued again in accordance with the procedural requirements of subdivision (1) of this subsection.

(4)  The commission shall hold at least one formal deliberative meeting before the issuance of a proposed or final order.  Except as provided in section 2299 of this chapter with respect to affirmative votes, a majority of the commission shall constitute a quorum for these deliberative meetings, as well as for any hearing conducted in accordance with this section.

(c)  The procedure relating to ex parte communications set forth in 3 V.S.A. § 813 shall apply as the commission deems appropriate to the development of a proposed order and to the deliberation and issuance of a final order.

(d)  The commission shall adopt rules of procedure for the conduct of a hearing and issuance of a proposed and final pricing order under this chapter. Such rules may be adopted as emergency rules in accordance with 3 V.S.A.  chapter 25.  The commission may adopt, promulgate and enforce such reasonable rules, and regulations and procedures as are deemed necessary to carry out the administration of the provisions of this section and sections 2675, 2725, 2726, 2921-2928 and 2931-2933 of this title chapter.

Sec. 8.  6 V.S.A. § 2931(a) is amended to read:

(a)  Within 20 days after any final order or decision has been made by the commission, any party to the action or proceeding before the commission, or any person directly affected thereby, may apply for a rehearing in respect to any matter determined in the action or proceeding, or covered or included in the order, specifying in the motion for rehearing the ground therefor.  The commission may grant such rehearing if in its opinion good reason therefore is stated in such motion.


Sec. 9.  6 V.S.A. § 2932 is amended to read:

§ 2932.  DETERMINATION OF MOTION FOR REHEARING

Upon the filing of a motion for rehearing, the commission shall within ten days, either grant or deny the motion, or suspend the order or decision complained of pending further consideration, and any order of suspension may be upon terms and conditions prescribed by the commission.

Sec. 10.  6 V.S.A. § 2938 is added to read:

§ 2938.  FUND ESTABLISHED

The Vermont milk commission fund is established in the state treasury and shall be administered by the secretary of agriculture, food and markets in accordance with the provisions of subchapter 5 of chapter 7 of Title 32, except that interest earned on the fund shall be retained in the fund.  Proceeds from this chapter shall be deposited into the fund.  The fund shall be used as necessary for the purposes of this chapter.  The treasurer shall distribute funds as directed by the commission.

Sec. 11.  6 V.S.A. § 2723a(a) is amended to read:

(a)  It shall be unlawful for any person to distribute fluid dairy products as a distributor, as defined in this chapter, without a license issued by the commissioner secretary.  The commissioner secretary shall license all distributors annually.  Application for the license shall be made to the commissioner secretary upon a form furnished by the commissioner secretary.  The application shall be accompanied by an annual license fee of $15.00 for one year or any part thereof.  The license period shall be from January 1 to December 31.

Sec. 12.  6 V.S.A. § 2981(b) is amended to read:

(b)  Each distributor handler shall pay the Vermont milk commission council each month two cents per hundredweight on all fluid milk sold for consumption within the state of Vermont.  Each distributor handler shall file a report and pay the distributor's handler’s hundredweight fee to the commission council on forms provided for that purpose, except that distributors handlers who sell less than 100 quarts of fluid milk per day may file reports and pay the prescribed hundredweight fees at the end of each three-month period.  In case the same fluid milk is handled by more than one distributor handler, the first distributor handler within the state dealing in or handling the fluid milk shall be the distributor handler within the meaning of this chapter.

Sec. 13.  REPEAL

6 V.S.A. §§ 2928, 2930, 2951, and 2987(b) are repealed.

Sec. 14.  EFFECTIVE DATE

This act shall take effect on passage.

                                                                        SARA B. KITTELL

                                                                        ROBERT A. STARR

                                                                        HAROLD W. GIARD

                                                                 Committee on the part of the Senate

                                                                        JOHN W. MALCOLM

                                                                        ALBERT J. PERRY

                                                                        DAVID M. AINSWORTH

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Rules Suspended; Report of Committee of Conference Accepted and Adopted on the Part of the Senate

H. 870.

Pending entry on the Calendar for notice, on motion of Senator Mazza, the rules were suspended and the report of the Committee of Conference on House bill entitled:

An act relating to the regulation of professions and occupations.

Was taken up for immediate consideration.

Senator Coppenrath, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

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

H. 870.  An act relating to the regulation of professions and occupations.

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate’s first through third and fifth through eleventh proposals of amendment and that the Senate recede from its fourth proposal of amendment.

                                                                        GEORGE R. COPPENRATH

                                                                        CLAIRE D. AYER

                                                                        EDWARD S. FLANAGAN

                                                                 Committee on the part of the Senate


                                                                        DEBBIE G. EVANS

                                                                        ANN MANWARING

                                                                        LINDA J. MARTIN

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

House Proposal of Amendment Concurred In

S. 244.

House proposal of amendment to Senate bill entitled:

An act relating to self-storage facilities.

Was taken up

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

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.

Thereupon, the question, Shall the Senate concur in the House proposal of amendment?, was decided in the affirmative.

Rules Suspended; Reports of Committees of Conference Accepted and Adopted on the Part of the Senate

S. 283.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to managed care organizations and the blueprint for health.

Was taken up for immediate consideration.

Senator Racine, for the Committee of Conference, submitted the following 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:

S. 283.  An act relating to managed care organizations and the blueprint for health.

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House proposal of amendment.

                                                                        DOUGLAS A. RACINE

                                                                        VIRGINIA V. LYONS

                                                                        KEVIN J. MULLIN

                                                                 Committee on the part of the Senate

                                                                        HARRY L. CHEN

                                                                        VIRGINIA MILKEY

                                                                        PATRICIA O’DONNELL

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

S. 350.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to energy independence and economic prosperity.

Was taken up for immediate consideration.

Senator Lyons, for the Committee of Conference, submitted the following 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:

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

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House proposals of amendment and that the bill be further amended:

First:  In Sec. 3a, 10 V.S.A. § 578, by striking out subsection (b) and inserting in lieu thereof the following:

(b)  Climate change action plan Vermont climate collaborative.  The secretary will coordinate with the governor's commission on climate change established by executive order and will consult with any interested members of Vermont's participate in the Vermont climate collaborative, a collaboration between state government and Vermont’s higher education, business, agricultural, labor, and environmental communities in developing a climate change action plan.  Wherever possible, members of the collaborative shall be included among the membership of the program development working groups established by the climate change oversight committee created under this act.  State entities shall cooperate with the climate change oversight committee in pursuing the priorities identified by the committee.  The secretary shall notify each member of the general assembly of the development of this plan and of the general public that the collaborative is developing greenhouse gas reduction programs and shall provide meaningful opportunity for public comment on program developmentThis plan Programs shall be developed in a manner that implements state energy policy, as specified in 30 V.S.A. § 202a.  Not later than September 1, 2007, the secretary shall present this plan to the committees of the general assembly having jurisdiction over matters relating to the environment, agriculture, energy, transportation, commerce, and public health.

     Second:  In Sec. 3a, 10 V.S.A. § 578, in subsection (d), before the period at the end of the first complete sentence, by inserting the following: , including those caused by transportation, heating, cooling, and ventilation

     Third:  In Sec. 4, 10 V.S.A. § 580, by adding a new subsection (f) to read as follows:

(f) Participation by government subdivisions.  The state and its municipalities may participate in the inventory for purposes of registering reductions associated with their programs, direct activities, or efforts, including the registration of emission  reductions associated with the stationary and mobile sources they own, lease, or operate.

     Fourth:  By adding a new Sec. 13b to read as follows:

Sec. 13b.  30 V.S.A. § 255(f) is added to read:

(f) The state’s negotiators to RGGI shall advocate for and negotiate to adjust the rules of the program, as needed, so that greenhouse gas reductions resulting from state investments and other public investments and investments required by state law will not be prohibited from being eligible for off-sets under the program.

     Fifth:  In Sec. 14 [establishing a Vermont climate change oversight committee] by striking out subsection (c) and inserting in lieu thereof the following:

(c)  The primary mission of the committee shall be to consider the recommendations of the governor’s commission on climate change and its plenary group and the recommendations of the Vermont council on rural development and to delegate and oversee program development by appropriate working groups that shall make recommendations with regard to how climate change issues should best be addressed in statute and as part of the climate change action plan.  Membership of the working groups shall include members of the Vermont climate collaborative, wherever possible.  The working groups shall develop recommendations that shall be designed to reduce greenhouse gas emissions in ways that are permanent, quantifiable, and verifiable, and shall bring those recommendations back to the climate change oversight committee.  The committee shall assure that these recommendations:

(1)  identify barriers to be overcome in reducing the greenhouse gas emissions of the state;

(2)  identify areas that merit priority consideration in this regard because of their ease of implementation and their potential to reduce greenhouse gas emissions;

(3)  develop recommendations for ways to overcome those barriers;

(4)  identify resource needs and funding options; and

(5)  facilitate state and private entities in addressing these issues.

And by striking out subsection (e) and inserting in lieu thereof the following:

(e)  The committee shall present a preliminary report to the committees of the general assembly having jurisdiction over matters relating to the environment, agriculture, energy, transportation, commerce, and public health by January 30, 2009, and shall deliver a final report by January 30, 2010.

                                                                        VIRGINIA V. LYONS

                                                                        MARK A. MacDONALD

                                                                        ROBERT M. HARTWELL

                                                                 Committee on the part of the Senate

                                                                        MARGARET R. CHENEY

                                                                        KATHY LAVOIE

                                                                        MARK B. MITCHELL

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.


Rules Suspended; Bills Messaged

On motion of Senator Shumlin, the rules were suspended, and the following bills were ordered messaged to the House forthwith:

H. 290, H. 636, H. 709, H. 865, H. 870.

Rules Suspended; Bills Delivered

On motion of Senator Shumlin, the rules were suspended, and the following bills were ordered delivered to the Governor forthwith:

S. 244, S. 283, S. 350.

Rules Suspended; Report of Committee of Conference Accepted and Adopted on the Part of the Senate

S. 297.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to clarifying the definition of “stiff hitch” in the motor vehicle statutes.

Was taken up for immediate consideration.

Senator Scott, for the Committee of Conference, submitted the following 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:

S. 297.  An act relating to clarifying the definition of “stiff hitch” in the motor vehicle statutes.

Respectfully reports that it has met and considered the same and recommends that the House recede from its proposal of amendment and that the bill be further amended by striking out 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.

Sec. 2.  23 V.S.A. § 4(78) is added to read:

(78)  An “all-surface vehicle” or “ASV” means any non-highway recreational vehicle, except a snowmobile, when used for cross-country travel on trails or on any one of the following or combination of the following:  land, water, snow, ice, marsh, swampland, and natural terrain.  An all-surface vehicle shall be designed for use both on land and in water, with or without tracks, shall be capable of flotation and shall be equipped with a skid-steering system, a sealed body, a fully contained cooling system, and six or eight tires designed to be inflated with an operating pressure not exceeding 10 pounds per square inch as recommended by the manufacturer.  An all-surface vehicle shall have a net weight of 1,500 pounds or less, shall have a width of 75 inches or less, shall be equipped with an engine of not more than 50 horsepower, and shall have a maximum speed of not more than 25 miles per hour.  An ASV when operated in water shall be considered to be a motor boat and shall be subject to the provisions of subchapter 2 of chapter 29 of this title.  An ASV operated anywhere except in water shall be subject to the provisions of chapter 31 of this title. 

Sec. 3.  23 V.S.A. § 364b is added to read:

§ 364b.  ALL-SURFACE VEHICLES; REGISTRATION

(a)  The annual fee for registration of an all-surface vehicle (ASV) shall be the sum of the fees established by sections 3305 and 3504 of this title, plus $25.00.

(b)  Evidence of the registration shall be a sticker, as determined by the commissioner, affixed to the plate issued pursuant to chapter 31 of this title.

Sec. 4.  23 V.S.A. § 3501(5) is amended to read:

§ 3501.  DEFINITIONS

(5)  “All-terrain vehicle” or “ATV” means any nonhighway recreational vehicle, except snowmobiles, having no less than three low pressure tires (10 pounds per square inch, or less), not wider than 60 inches, and having a dry weight of less than 1,700 pounds, when used for cross-country travel on trails or on any one of the following or a combination thereof: land, water, snow, ice, marsh, swampland, and natural terrain.  An ATV on a public highway shall be considered a motor vehicle, as defined in section 4 of this title, only for the purposes of those offenses listed in subdivisions 2502(a)(1)(H), (N), (R), (U), (Y), (FF), (GG), (II), and (ZZ); (2)(A) and (B); (3)(A), (B), (C), and (D); (4)(A), and (B) and (5) of this title and as provided in section 1201 of this title.  An ATV shall not include an electric personal assistive mobility device.

                                                                        PHILIP B. SCOTT

                                                                        M. JANE KITCHEL

                                                                        DONALD E. COLLINS

                                                                 Committee on the part of the Senate

                                                                        PATRICK M. BRENNAN

                                                                        HARRY MONTI

                                                                        JANICE L. PEASLEE

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Recess

On motion of Senator Shumlin the Senate recessed until 4:15 P.M.

Called to Order

At 5:00 P.M. the Senate was called to order by the President pro tempore.

Message from the House No. 70

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

     I am directed to inform the Senate the Speaker has announced changes in appointees of Committees of Conference for House bills of the following titles:

H. 11.  An act relating to the commissioner of health.

                                         Rep. McAllister of Highgate

                                         Rep. Andrews of Rutland City

                                         Rep. Pugh of South Burlington

H. 617.  An act relating to guardianships.

                                         Rep. Jewett of Ripton

                                         Rep. Gervais of Enosburg

                                         Rep. Flory of Pittsford

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

S. 301.  An act relating to enhancing the penalties for assaulting a law enforcement officer and to the crime of assault with bodily fluids.

S. 311.  An act relating to the use value appraisal program.

And has adopted the same on its part.

The Governor has informed the House of Representatives that on the twenty-fourth day of April, 2008, he approved and signed a bill originating in the House of the following title:

H. 664.  An act relating to unemployment insurance.

The Governor has informed the House of Representatives that on the twenty-eighth day of April, 2008, he approved and signed a bill originating in the House of the following title:

H. 338.  An act relating to state purchasing of apparel, footwear or textiles.

The Governor has informed the House of Representatives that on the thirtieth day of April, 2008, he approved and signed a bill originating in the House of the following title:

H. 775.  An act relating to low-profit limited liability companies.

President Assumes the Chair

Rules Suspended; Report of Committee of Conference Accepted and Adopted on the Part of the Senate

S. 290.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to an act relating to agricultural water quality.

Was taken up for immediate consideration.

Senator Kittell, for the Committee of Conference, submitted the following 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:

S. 290.  An act relating to agricultural water quality.

Respectfully reports that it has met and considered the same and recommends that the Senate recede from its proposal of amendment and that the bill be further amended by adding a Sec. 2 to read as follows:

Sec. 2.  6 V.S.A. § 4827(g) is added to read:

(g)  Notwithstanding the requirements of subsection (c) of this section, the secretary may, as general funds are appropriated for this purpose, provide a one-time incentive payment under this section to encourage farmers to inject manure on grass or crop land over one growing season.

                                                                        SARA B. KITTELL

                                                                        HAROLD W. GIARD

                                                                        HULL P. MAYNARD, JR.

                                                                 Committee on the part of the Senate

                                                                        RICHARD LAWRENCE

                                                                        KRISTY SPENGLER

                                                                        CYNTHIA BROWNING

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Rules Suspended; Report of Committee of Conference Accepted and Adopted on the Part of the Senate

H. 11.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on House bill entitled:

An act relating to the commissioner of health.

Was taken up for immediate consideration.

Senator White, for the Committee of Conference, submitted the following report:

To the Senate and House of Representatives:

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

H. 11.  An act relating to the commissioner of health.

Respectfully reports that it has met and considered the same and recommends that the House accede to the Senate proposal of amendment.

                                                                        JEANETTE K. WHITE

                                                                        EDWARD S. FLANAGAN

                                                                        DOUGLAS A. RACINE

                                                                 Committee on the part of the Senate

                                                                        NORMAN McALLISTER

                                                                        MARGARET ANDREWS

                                                                        ANN PUGH

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Rules Suspended; Reports of Committees of Conference Accepted and Adopted on the Part of the Senate

S. 171.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to discharge of a mortgage by an attorney.

Was taken up for immediate consideration.

Senator Campbell, for the Committee of Conference, submitted the following 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:

S. 171.  An act relating to discharge of a mortgage by an attorney.

Respectfully reports that it has met and considered the same and recommends that the House recede from its proposals of amendment, and that the bill be amended by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  27 V.S.A. § 141 is amended to read:

§ 141.  EXECUTION AND ACKNOWLEDGMENT OF CONVEYANCE

* * *

(d)  Notwithstanding anything to the contrary in this section, a spouse or civil union partner may convey his or her respective homestead interest to the other spouse or civil union partner prior to the time the homestead right vests, thereby divesting the grantor of any homestead interest in the property.  A conveyance of homestead property between spouses or civil union partners shall be deemed to include a conveyance of any homestead interest.  This section shall apply retroactively, except that it shall not affect a suit begun or pending as of July 1, 2008.

Sec. 2.  27 V.S.A. § 348 is amended to read:

§ 348.  INSTRUMENTS CONCERNING REAL PROPERTY LACKING STATEMENT OF CONSIDERATION, OR WITNESSES OR ACKNOWLEDGMENTS, VALIDATED

(a)  When an instrument of writing shall have been on record in the office of the clerk in the proper town for a period of 15 years, and there is a defect in the instrument because it omitted to state any consideration therefor or was not sealed, witnessed, acknowledged, validly acknowledged, or because a license to sell was not validly issued or is defective, the instrument shall, from and after the expiration of 15 years from the filing thereof for record, be valid.  Nothing herein shall be construed to affect any rights acquired by grantees, assignees or encumbrancers under the instruments described in the preceding sentence, nor shall this section apply to conveyances or other instruments of writing, the validity of which is brought in question in any suit now pending in any courts of the state.

(b)  Notwithstanding subsection (a) of this section, any deed, mortgage, lease, power of attorney, release, discharge, assignment, or other instrument made for the purpose of conveying, leasing, mortgaging, or affecting any interest in real property which contains any one or more of the following errors is valid unless, within three years after the instrument is recorded, an action challenging its validity is commenced, and a copy of the complaint is recorded in the land records of the town where the instrument is recorded:

(1)  The instrument contains a defective acknowledgment.

(2)  In the case of a conveyance by a corporation, limited liability company, partnership, limited partnership, or limited liability partnership, or by any other entity authorized to hold and convey title to real property within this state, the instrument designated such entity as the grantor but was signed or acknowledged by an individual in the individual capacity of such person, or fails to disclose the authority of the individual who executes and acknowledges the instrument.

(3)  The instrument contains an incorrect statement of the date of execution, or contains an execution date, or other date that is later than the date of the recording.  In case of such conflict, the date of recording prevails.

(4)  The instrument does not contain a statement of consideration.

(c)  Notwithstanding the provisions of subsection (a) of this section, any deed, mortgage, lease, power of attorney, release, discharge, assignment, or other instrument made for the purpose of conveying, leasing, mortgaging, or affecting any interest in real property which is executed pursuant to a recorded power of attorney and contains one or more of the following errors or omissions is valid as if it had been executed without the error or omission:

(1)  The instrument was executed by an attorney-in-fact but was signed or acknowledged by the attorney-in-fact without reference to his or her capacity.

(2)  The instrument was executed by an attorney-in-fact but does not reference the power of attorney.

(3)  The power of attorney was effective at the time the instrument was executed but is recorded after the instrument is recorded.

(d)  A release, discharge, or assignment of mortgage interest executed by a commercial lender with respect to a one-to-four-family residential real property, including a residential unit in a condominium or in a common interest community as defined in Title 27A, which recites authority to act on behalf of the record holder of the mortgage under a power of attorney but where the power of attorney is not of record, shall have the same effect as if executed by the record holder of the mortgage unless, within three years after the instrument is recorded, an action challenging the release, discharge, or assignment is commenced and a copy of the complaint is recorded in the land records of the town where the release, discharge, or assignment is recorded. This subsection shall not apply to releases, discharges, or assignments obtained by fraud or forgery.

Sec. 3.  27 V.S.A. § 464a is amended to read:

§ 464a.  DISCHARGE BY LICENSED ATTORNEY

(a)  A recorded mortgage on a dwelling of two units or less occupied by the owner as the owner’s principal residence or on farmland may be discharged by an attorney‑at‑law licensed to practice in this state if:

(1)  the mortgagee, after receipt of payment of the mortgage in accordance with the payoff statement furnished to the mortgagor by the mortgagee, or the mortgagee’s agent, fails to make that discharge of the mortgage execute and record a discharge of the mortgage in accordance with section 461, 462, or 463 of this title;

(2)  the discharge is executed by, or is in the name of, a purported mortgagee that is not holder of record of the mortgage; or

(3)  the discharge of record was not executed in accordance with section 461, 462, or 463 of this title.

(b)  The attorney An attorney‑at‑law who discharges a mortgage under this section shall execute and record with the discharge an affidavit in the record of deeds affirming that:

(1)  the affiant is an attorney‑at‑law in good standing and licensed to practice in Vermont;

(2)  the affidavit is made at the request of the mortgagor or the mortgagor’s executor, administrator, successor, assignee, or transferee or the transferee’s mortgagee;

(3)  the purported mortgagee has provided a payoff statement with respect to the loan secured by the mortgage;

(4)  the purported mortgagee has received payment of the mortgage in accordance with the payoff statement that has been proved by a bank check, certified check, or attorney client funds account check negotiated by the purported mortgagee or by evidence of receipt of payment by the purported mortgagee; and

(5)  more than 30 days have elapsed since the payment was received by the purported mortgagee; and

(6)  the mortgagee has received written notification by certified mail 15 days in advance, sent to the mortgagee’s last known address, that the affiant intends to execute and record an affidavit in accordance with this section, enclosing a copy of the proposed affidavit; the mortgagee has not delivered a discharge or acknowledgment of satisfaction in response to the notification; and the mortgagee has failed to dispute payoff of the mortgage.

(b)(c)  The affidavit must include:  the names and addresses of the mortgagor and, the original mortgagee, and the purported mortgagee; the date of the mortgage,; and the book and page number and similar information with respect to the most recent recorded assignment of the mortgage.

(c)(d)  The affiant shall attach to the affidavit the following, certifying that each copy is a true copy of the original document:

(1)  photocopies of the documentary evidence that payment has been received by the purported mortgagee, including the purported mortgagee’s endorsement of a the payoff check, provided that the payor’s account number may be redacted from the copy of the payoff check; and

(2)  a photocopy of the payoff statement received from the purported mortgagee.

(d)(e)  An affidavit recorded under this section has the same effect as discharge under sections 431 section 461, 462, or 463 of this title.

(f)  An attorney‑at‑law who executes and records a discharge of mortgage in accordance with this section shall not be liable to the holder of the mortgage on account of such discharge except in the event of negligence or fraud by the discharging attorney.

Sec. 4.  27 V.S.A. § 470 is added to read:

§ 470.  VALIDATION OF MORTGAGE DISCHARGE ON ONE- TO FOUR-FAMILY RESIDENTIAL PROPERTY

(a)  Subject to the provisions of subsection (b) of this section, a mortgage discharge executed on behalf of a banking or lending institution with respect to a mortgage encumbering a one- to four-family residential real property, including a residential unit in a condominium or in a common interest community as defined in Title 27A, that is not valid because it is not executed by or is not issued by or in the name of the record holder of the mortgage, shall be valid as if it had been issued or executed by the record holder of the mortgage if:

(1)  No person has within three years after the discharge is recorded brought an action challenging the validity of the discharge and recorded a copy of the complaint in the land records of the town where the discharge is recorded; and

(2)  An affidavit is recorded that is dated more than three years after the recording date of the mortgage discharge and contains the following:

(A)  A statement that the affiant has been the record owner of the real property described in the mortgage for at least two years prior to the date of the affidavit.

(B)  The recording information for the mortgage, any assignments, and the release.

(C)  A statement that, since the date of the recording of the release, the affiant has received no demand for payment of all or any portion of the debt secured by the mortgage and has received no notice or communication that would indicate that all or any portion of the mortgage debt remains due or owing.

(D)  A statement that, to the best of the affiant’s knowledge and belief, the mortgage has been paid in full.

(b)  The provisions of this section shall not apply to any release obtained by fraud or forgery.

And after passage, the title of the bill is to be amended to read:

     AN ACT RELATING TO discharge of a mortgage by an attorney, ability to convey homestead interest, and VALIDATION OF MORTGAGE DISCHARGES.

                                                                        JOHN F. CAMPBELL

                                                                        ROBERT M. HARTWELL

                                                                        VINCENT ILLUZZI

                                                                 Committee on the part of the Senate

                                                                        MARGARET K. FLORY

                                                                        RICHARD J. MAREK

                                                                        THOMAS F. KOCH

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

S. 364.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and the report of the Committee of Conference on Senate bill entitled:

An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee Nuclear Plant.

Was taken up for immediate consideration.

Senator Cummings, for the Committee of Conference, submitted the following 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:

S. 364.  An act relating to a comprehensive vertical audit and reliability assessment of the Vermont Yankee Nuclear Plant.

Respectfully reports that it has met and considered the same and recommends that the Senate accede to the House’s proposal of amendment, and that the bill be further amended in Sec. 6, in subsection (a), in the second sentence, before the word “five” by inserting the words three to and by striking out subsections (1) and (2) and inserting in lieu thereof the following:

(1) The speaker of the house, the president pro tempore of the senate, and the governor, shall each appoint one member; and

(2) The three members appointed pursuant to subsection (1) may select one or two additional members.

                                                                        ANN E. CUMMINGS

                                                                        MARK A. MacDONALD

                                                                        WILLIAM H. CARRIS

                                                                 Committee on the part of the Senate

                                                                        TONY KLEIN

                                                                        ROBERT DOSTIS

                                                                        SARAH R. EDWARDS

                                                                 Committee on the part of the House

Thereupon, the question, Shall the Senate accept and adopt the report of the Committee of Conference?, was decided in the affirmative.

Rules Suspended; Bill Messaged

On motion of Senator Shumlin, the rules were suspended, and the following bill was ordered messaged to the House forthwith:

H. 11.

Rules Suspended; Bills Delivered

On motion of Senator Shumlin, the rules were suspended, and the following bills were ordered delivered to the Governor forthwith:

S. 171, S. 290, S. 297, S. 364.

Rules Suspended; Proposal of Amendment; Third Reading Ordered; Rules Suspended; Bill Passed in Concurrence with Proposal of Amendment; Rules Suspended; Bill Messaged

H. 267.

Pending entry on the Calendar for notice, on motion of Senator Shumlin, the rules were suspended and House bill entitled:

An act relating to industrial hemp.

Was taken up for immediate consideration.

Senator Shumlin Assumes the Chair

Senator Sears, for the Committee on Judiciary, to which the bill was committed, reported recommending that the Senate propose to the House to amend the bill by striking out all after the enacting clause and inserting in lieu thereof the following:

Sec. 1.  LEGISLATIVE FINDINGS

The general assembly finds:

(1)  Industrial hemp is a suitable crop for Vermont, and its production will contribute to the future viability of Vermont agriculture.

(2)  Allowing industrial hemp production will provide farmers an opportunity to sell their products to a marketplace that pays them a reasonable rate of return for their labor and capital investments.  Farmers in Canada report an $800.00 per‑acre return for the crop.

(3)  The infrastructure needed to process industrial hemp will result in increased business opportunities and new jobs in our communities.

(4)  As a food crop, industrial hemp seeds and oil produced from the seeds have high nutritional value, including healthy fats and protein.

(5)  As a fiber crop, industrial hemp can be used in the manufacture of products such as clothing, building supplies, and animal bedding.

(6)  As a fuel crop, industrial hemp seeds can be processed into biodiesel, and stalks can be pelletized or flaked for burning or processed for cellulosic ethanol.  Industrial hemp also expands opportunities for on-farm renewable energy production.

(7)  The production of industrial hemp can play a useful agronomic role in farm land management as part of a crop rotation system.

Sec. 2.  6 V.S.A. chapter 34 is added to read:

CHAPTER 34.  INDUSTRIAL HEMP

§ 561.  INTENT

     The intent of this act is to establish policy and procedures for growing industrial hemp in Vermont so that farmers and other businesses in the Vermont agricultural industry can take advantage of this market opportunity when federal regulations permit.

§ 562.  DEFINITIONS

As used in this chapter:

(1)  “Grower” means any person or business entity licensed under this chapter by the secretary as an industrial hemp grower.

(2)  “Hemp products” means all products made from industrial hemp, including but not limited to cloth, cordage, fiber, food, fuel, paint, paper, particle board, plastics, seed, seed meal, seed oil, and certified seed for cultivation if such seeds originate from industrial hemp varieties.

(3)  “Industrial hemp” means varieties of the plant cannabis sativa having no more than 0.3 percent tetrahydrocannabinol, whether growing or not, that are cultivated or possessed by a licensed grower in compliance with this chapter.

(4)  “Secretary” means the secretary of agriculture, food and markets.

§ 563.  INDUSTRIAL HEMP:  AN AGRICULTURAL PRODUCT

Industrial hemp is an agricultural product which may be grown, produced, possessed, and commercially traded in Vermont pursuant to the provisions of this chapter.

§ 564.  LICENSING; APPLICATION

(a)  Any person or business entity wishing to engage in the production of industrial hemp must be licensed as an industrial hemp grower by the secretary.  A license from the secretary shall authorize industrial hemp production only at a site or sites specified by the license.

(b)  A license from the secretary shall be valid for 24 months from the date of issuance and may be renewed but shall not be transferable.

(c)(1)  The secretary shall obtain from the Vermont criminal information center a record of convictions in Vermont and other jurisdictions for any applicant for a license who has given written authorization on the application form.  The secretary shall file a user's agreement with the center.  The user's agreement shall require the secretary to comply with all statutes, rules, and policies regulating the release of criminal conviction records and the protection of individual privacy.  Conviction records provided to the secretary under this section are confidential and shall be used only to determine the applicant’s eligibility for licensure.

(2)  A person who has been convicted in Vermont of a felony offense or a comparable offense in another jurisdiction shall not be eligible for a license under this chapter.

(d)  When applying for a license from the secretary, an applicant shall provide information sufficient to demonstrate to the secretary that the applicant intends to grow and is capable of growing industrial hemp in accordance with this chapter, which at a minimum shall include:

(1)  Filing with the secretary a set of classifiable fingerprints and written authorization permitting the Vermont criminal information center to generate a record of convictions as required by subdivision (c)(1) of this section.

(2)  Filing with the secretary documentation certifying that the seeds obtained for planting are of a type and variety compliant with the maximum concentration of tetrahydrocannabinol set forth in subdivision 560(3) of this chapter.

(3)  Filing with the secretary the location and acreage of all parcels sown and other field reference information as may be required by the secretary.

(e)  To qualify for a license from the secretary, an applicant shall demonstrate to the satisfaction of the secretary that the applicant has adopted methods to ensure the legal production of industrial hemp, which at a minimum shall include:

(1)  Ensuring that all parts of the industrial hemp plant that do not enter the stream of commerce as hemp products are destroyed, incorporated into the soil, or otherwise properly disposed of.

(2)  Maintaining records that reflect compliance with the provisions of this chapter and with all other state laws regulating the planting and cultivation of industrial hemp.

(f)  Every grower shall maintain all production and sales records for at least three years.

(g)  Every grower shall allow industrial hemp crops, throughout sowing, growing season, harvest, storage, and processing, to be inspected by and at the discretion of the secretary or his or her designee.

§ 565.  REVOCATION AND SUSPENSION OF LICENSE; ENFORCEMENT

(a)  The secretary may deny, suspend, revoke, or refuse to renew the license of any grower who:

(1)  Makes a false statement or misrepresentation on an application for a license or renewal of a license.

(2)  Fails to comply with or violates any provision of this chapter or any rule adopted under it.

(b)  Revocation or suspension of a license may be in addition to any civil or criminal penalties imposed on a grower for a violation of any other state law.


§ 566.  RULEMAKING AUTHORITY

The secretary shall adopt rules to provide for the implementation of this chapter, which shall include rules to allow for the industrial hemp to be tested during growth for tetrahydrocannabinol levels and to allow for supervision of the industrial hemp during sowing, growing season, harvest, storage, and processing.

Sec. 3.  EFFECTIVE DATE

This act shall take effect upon passage, except 6 V.S.A. § 566, which shall take effect at such time as the United States Congress amends the definition of "marihuana" for the purposes of the Controlled Substances Act (21 U.S.C. 802(16)) or the United States drug enforcement agency amends its interpretation of the existing definition in a manner affording an applicant a reasonable expectation that a permit to grow industrial hemp may be issued in accordance with part C of chapter 13 of Title 21 of the United States Code Annotated, or the drug enforcement agency takes affirmative steps to approve or deny a permit sought by the holder of a license to grow industrial hemp in another state.

And that the bill ought to pass in concurrence with such proposal of amendment.

Senator Racine Assumes the Chair

Thereupon, the bill was read the second time by title only pursuant to Rule 43, the proposal of amendment was agreed to, and third reading of the bill was ordered on a roll call, Yeas 25, Nays 1.

Senator Sears having demanded the yeas and nays, they were taken and are as follows:

Roll Call

Those Senators who voted in the affirmative were: Ayer, Campbell, Carris, Collins, Condos, Coppenrath, Cummings, Doyle, Flanagan, Giard, Hartwell, Kitchel, Kittell, Lyons, MacDonald, Maynard, McCormack, Mullin, Nitka, Scott, Sears, Shumlin, Snelling, Starr, White.

The Senator who voted in the negative was: Mazza.

Those Senators absent or not voting were: Bartlett, Illuzzi, Miller, Racine (presiding).

Thereupon, on motion of Senator Shumlin, the rules were suspended and the bill was placed on all remaining stages of its passage in concurrence with proposal of amendment forthwith.

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

Thereupon, on motion of Senator Shumlin, the rules were suspended, and the bill was ordered messaged to the House forthwith.

Message from the House No. 71

     A message was received from the House of Representatives by Ms. Wrask, its Second Assistant Clerk, as follows:

Mr. President:

I am directed to inform the Senate the House has considered Senate bills of the following titles:

S. 261.  An act relating to phthalates in products for young children.

S. 358.  An act relating to enhanced driver licenses.

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

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

H. 545.  An act relating to the Agency of Human Services.

And has concurred therein.

The House has considered the reports of the Committees of Conference upon the disagreeing votes of the two Houses on 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 adopted the same on its part.

Adjournment

On motion of Senator Shumlin, the Senate adjourned until ten o’clock in the morning.



Published by:

The Vermont General Assembly
115 State Street
Montpelier, Vermont


www.leg.state.vt.us