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Session Law

2009

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Chapter 5 AN ACT MAKING APPROPRIATIONS FOR THE FISCAL YEAR 2009 TO PROVIDE FOR SUPPLEMENTING CERTAIN EXISTING APPROPRIATIONS AND FOR CERTAIN OTHER ACTIVITIES AND PROJECTS.

Whereas, The deferred operation of this act would tend to defeat its purposes, which is to make forthwith supplemental appropriations for fiscal year 2009 and to make certain changes in law, therefore it is hereby declared to be an emergency law, necessary for the immediate preservation of the public convenience.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. To provide for supplementing certain items in the general appropriation act and other appropriation acts for fiscal year 2009, the sums set forth in section 2 are hereby appropriated from the General Fund unless specifically designated otherwise in this act or in those appropriation acts, for the several purposes and subject to the conditions specified in this act or in those appropriation acts, and subject to the laws regulating the disbursement of public funds for the fiscal year ending June 30, 2009. These sums shall be in addition to any amounts previously appropriated and made available for the purposes of those items.

SECTION 2.

EXECUTIVE OFFICE OF ENERGY AND ENVIRONMENTAL AFFAIRS
Department of Conservation and Recreation

2820-2000.......................................................... $2,930,793

EXECUTIVE OFFICE OF TRANSPORTATION AND PUBLIC WORKS
Department of Highways

6010-0002.......................................................... $3,853,886
6030-7201......................................................... $98,474,331

SECTION 2A. To provide for certain unanticipated obligations of the commonwealth, to provide for an alteration of purpose for current appropriations and to meet certain requirements of law, the sums set forth in this section are hereby appropriated from the General Fund unless specifically designated otherwise in this section, for the several purposes and subject to the conditions specified in this section and subject to the laws regulating the disbursement of public funds for the fiscal year ending June 30, 2009. These sums shall be in addition to any amounts previously appropriated and made available for the purposes of those items.

EXECUTIVE OFFICE OF HEALTH AND HUMAN SERVICES
Department of Public Health

4513-1010 For the department of public health; provided, that the department may expend not more than $7,000,000 in revenue received from the collection of federal financial participation for early intervention services delivered to Medicaid-eligible children by developmental educators and professionals in related disciplines; provided further, that nothing in this item shall give rise to enforceable legal rights to any such services or an enforceable entitlement to the services funded in this item; and provided further, that the revenue may be used to pay for current and prior year claims........................... $500,000

4513-1012 For the department of public health; provided, that the department may expend not more than $25,600,000 from revenues received from the federal cost-containment initiatives including, but not limited to, infant formula rebates; provided further, that for the purpose of accommodating timing discrepancies between the receipt of retained revenues and related expenditures, the department may incur expenses and the comptroller may certify for payment amounts not to exceed the lesser of this authorization or the most-recent revenue estimate as reported in the state accounting system........................... $1,000,000

EXECUTIVE OFFICE OF PUBLIC SAFETY AND HOMELAND SECURITY
Military Division

8700-1140 For the state quartermaster; provided, that the quartermaster may expend not more than $1,400,000 from revenues collected for the purposes described in this item; provided, that the state quartermaster may expend from fees collected for the nonmilitary rental or use of armories for the costs of utilities and maintenance; and provided further, that the quartermaster may expend not more than $250,000 for salaries, subsistence, quarters and associated costs for national guard soldiers ordered to perform state missions under chapter 33 of the General Laws, from revenues resulting from the acceptance of funds from any person, governmental entity or nongovernmental entity to defray such expenses. $1,000,000

SECTION 2B.
To provide for supplementing certain intragovernmental chargeback authorizations in the general appropriation act and other appropriation acts for fiscal year 2009, to provide for certain unanticipated intragovernmental chargeback authorizations, to provide for alterations of purpose for current intragovernmental chargeback authorizations and to meet certain requirements of law, the sum set forth in this section is hereby authorized from the Intragovernmental Service Fund for the several purposes specified in this section or in those appropriation acts and subject to laws regulating the disbursement of public funds for the fiscal year ending June 30, 2009. These sums shall be in addition to any amounts previously authorized and made available for the purposes of those items.

EXECUTIVE OFFICE OF TRANSPORTATION AND PUBLIC WORKS
Highway Department

6030-7501......................................................... $1,000,000.

SECTION 3. Chapter 10 of the General Laws is hereby amended by striking out section 35V, as appearing in the 2006 Official Edition, and inserting in place thereof the following section:-

Section 35V. There shall be established upon the books of the commonwealth a separate fund to be known as the Division of Professional Licensure Trust Fund, to be expended, without prior appropriation, by the division of professional licensure. Unless a greater amount is authorized by law, the fund shall consist of 50 per cent of the revenue of any fee increase collected after July 1, 1996 by the various boards serving within the division under section 9 of chapter 13 and by the division. The director of professional licensure shall make necessary expenditures from this account for the shared administrative costs of the operations and programs of the division. The director shall further direct that funds from the account shall be expended to provide services in an amount reasonably related to the cost of each board or unit's administrative and regulatory mandates with consideration to revenue generated from each board or unit. The division may incur expenses, and the comptroller may certify for payment, amounts in anticipation of expected receipts; provided, however, that no expenditure shall be made from the fund which shall cause the fund to be in deficit at the close of a fiscal year. Moneys deposited in the trust fund that are unexpended at the end of a fiscal year and that total not more than 20 per cent of the division's expenditures for the previous fiscal year shall not revert to the General Fund. The director shall report annually on March 1 to the house and senate committees on ways and means: (i) the revenue credited to the trust fund; (ii) the amount of trust fund expenditures that are attributable to the shared administrative costs of the division and an explanation of why such administrative costs are necessary; (iii) an itemized list of the amount of trust funds expended by board or unit; and (iv) an analysis of the services provided based on trust fund expenditures by board or unit, including the manner in which the trust fund expenditures assist the division in meeting its regulatory mandates.

SECTION 4. Subsection (b) of section 40 of chapter 62C of the General Laws, as so appearing, is hereby amended by striking out the first paragraph and inserting in place thereof the following paragraph:-

If an overpayment of tax is refunded within 90 days after the last day prescribed for filing the return of such tax, determined without regard to any extension of time for filing the return, or, in case the return is filed after such last date, is refunded within 90 days after the date the return is filed, no interest shall be allowed hereunder on such overpayment. If any overpayment of tax is not refunded within 90 days after a return is filed where such return is filed after the last day prescribed for filing such return, determined without regard to any extension of time for filing such return, interest shall be allowed hereunder on such overpayment only from the date the return is filed. Where 2 or more corporations elect to file returns on a combined net income basis under section 32B of chapter 63, the return of each such corporation filed under section 11 shall not be considered filed for purposes of this section until all members of the combined group have filed their returns.

SECTION 5. Chapter 167 of the General Laws is hereby amended by striking out section 2, as so appearing, and inserting in place thereof the following section:-

Section 2. (a)(1) The commissioner, either personally or by his examiners or such other assistants that he designates, shall, at least once in each calendar year, or at least once in an 18-month period in the case of a bank which is well capitalized as defined in 12 U.S.C. § 1831(o) and the regulations adopted under that section, make a thorough examination of the books, securities, cash, assets and liabilities and ascertain the condition of all banks under the commissioner’s supervision, including out-of-state branches, the ability of each bank to fulfill its obligations and whether it has complied with all applicable laws. The commissioner may also, whenever he considers it expedient, make or cause to be made, at the expense of the bank, any further examinations or audits by his examiners or by certified public accountants or public accountants approved by him and subject to his direction and not connected with the bank. The commissioner may also, whenever he considers it expedient, appoint individuals certified as real estate appraisers by the Society of Real Estate Appraisers or a similar successor society to make, at the expense of the bank, appraisals of real estate securing loans of the bank. When the commissioner appoints an appraiser, he shall so notify the bank of the date on which he has requested submission of the appraisal report to him. The bank may then appoint an appraiser who may submit the report of his appraisal to the commissioner on the same date.
(2) The commissioner or the person making the examination shall, at the time of the examination, have free access to the vaults, investments, cash, books and papers. In making an examination, the commissioner shall have access to the vaults, books and papers of each of the bank’s affiliates and may make any examination of the affairs of its affiliates that may be necessary to disclose fully the relations between the bank and its affiliates and the effect of this relationship upon the affairs of the bank.
(b)(1) The commissioner shall preserve a full record of an examination of a bank, including a statement of its condition. All records of investigations and reports of examinations by the commissioner, including workpapers, information derived from the reports or responses to the reports and any copies of the records in the possession of a bank under the supervision of the commissioner, shall be confidential and privileged communications, shall not be subject to subpoena and shall not be a public record under clause Twenty-sixth of section 7 of chapter 4. For the purposes of this paragraph, records of investigations and reports of examinations shall include records of investigation and reports of examinations conducted by a financial regulatory agency of the federal government or of a state or a foreign government which are considered confidential by the agency or foreign government and which are in possession of the commissioner. In a proceeding before a court, the court may issue a protective order to seal the record protecting the confidentiality of these records, other than a record on file with the court or filed in connection with the court proceeding, and the court may exclude the public from any portion of the proceeding at which the record may be disclosed.
(2) Copies of reports of these examinations shall be furnished to the bank for its use only and shall not be exhibited to any other person, organization or agency without the prior written approval of the commissioner. The commissioner may, in his discretion, furnish to the Chief National Bank Examiner, the Federal Reserve Bank of Boston, the Federal Deposit Insurance Corporation, the Depositors Insurance Fund, the Cooperative Central Bank, the Massachusetts Credit Union Share Insurance Corporation, the National Credit Union Administration, the Office of Thrift Supervision or any successors to these entities, any other bank regulatory or law enforcement agency, or the banking departments of other states or foreign countries, any information, reports and statements relating to the institutions under his supervision that he considers appropriate.
(c)(1) An annual charge shall be paid by each bank under the supervision of the commissioner which shall be based on the total amount of assets held by each bank as stated on the most recent report to the commissioner filed before December 31 of the preceding year. The charge assessed to all such banks shall be determined based on a calculation of the amount that would be sufficient to pay for the operations of the division of banks in the amount set forth in the division’s appropriation for the fiscal year, and each bank shall pay the charge within 30 days after receiving notice from the commissioner of the charge assessed. The notice shall be issued annually by the commissioner on January 31. The charge shall be determined annually by the secretary of administration and finance under section 3B of chapter 7, with the assistance of the commissioner, and may contain such classifications and differentiations based upon the financial condition of such banks as he considers appropriate. Classifications of individual institutions shall be exempt from section 10 of chapter 66. The annual charge shall be paid, on a pro rata basis, by the successor of any bank which is merged into, or whose assets are purchased and its deposit liabilities are assumed by, a federally-chartered or out-of-state bank during the preceding year. No annual charge shall be collected from a bank which has been in operation for 1 year or less. The aggregate amount of charges assessed by the division of banks for a fiscal year under this section and other applicable fee provisions shall not be less than the aggregate amount of revenues for the fiscal year as estimated for the division of banks or its successor agency in section 1B of the general appropriation act for that fiscal year.
(2) If the assessment in a fiscal year by the division of banks is insufficient to pay for the operations of the division of banks in the amount set out in its annual appropriation and any additional appropriations for that fiscal year, the division of banks shall assess the remaining amount upon all depository and nondepository financial institutions under the supervision of the division. This assessment shall be determined by regulations of the secretary of administration and finance under section 3B of chapter 7, with the assistance of the commissioner, and may contain such classifications and differentiations based upon the regulatory condition of each institution as the commissioner considers necessary. The classifications of individual institutions shall be exempt from section 10 of chapter 66. The assessment shall be paid within 30 days after notice from the commissioner of the amount due.
(3) The expense of the examination of the affairs of an affiliate of a bank, including all monies expended by the commonwealth for personal services and the proportion of the general overhead of the division of banks and loan agencies, including travel, hotel and meal allowances and other costs that are determined by the commissioner to be attributable to the examination or audit, shall be paid by the affiliate examined. For the purposes of this section, “affiliate” shall include holding company affiliates, but shall not include any person or corporation the control of which is held by a bank when acting in a fiduciary capacity.

SECTION 6. The fifth sentence of section 3 of chapter 192 of the acts of 1994 is hereby amended by striking out the words “and the house vice chairman of the committee on revenue”, inserted by section 3B of chapter 62 of the acts of 2008.

SECTION 7. The sixth sentence of said section 3 of said chapter 192, as amended by section 2 of chapter 3 of the acts of 2005, is hereby further amended by inserting after the word “technologies”, in line 12, the following words:- , the house vice chairman of the committee on revenue.

SECTION 8. Item 0699-9100 of section 2 of chapter 182 of the acts of 2008 is hereby amended by inserting after the penultimate proviso the following proviso:- ; provided further, that not more than $500,000 shall be made available to the state treasurer, in collaboration with the secretary of administration and finance and the comptroller, for the continued efforts to improve the processes and reporting of projecting the commonwealth’s official cash flow under section 10 of chapter 10 of the General Laws.

SECTION 9. Item 4000-0700 of said section 2 of said chapter 182 is hereby amended by striking out the words “provided further, that not less than $10,000,000 shall be expended to pay for an increase in Medicaid rates for community health centers, as defined in section 1 of chapter 118G of the General Laws”, inserted by section 41 of chapter 302 of the acts of 2008, and inserting in place thereof the following words:- provided further, that not less than $5,800,000 shall be expended to pay for an increase in Medicaid rates for community health centers, as defined in section 1 of chapter 118G of the General Laws.

SECTION 10. Said section 2 of said chapter 182 is hereby further amended by striking out item 7006-0010 and inserting in place thereof the following item:-

7006-0010 For the operation of the division of banks; provided, that notwithstanding any general or special law to the contrary, the division shall assess 100 per cent of the amount appropriated in this item upon financial institutions which the division currently regulates under section 2 of chapter 167 and section 24 of chapter 167B of the General Laws at a rate sufficient to produce $12,582,991 in revenue that shall pay for this item.................................................. $12,582,991.

SECTION 11. Item 9110-1630 of said section 2 of said chapter 182 is hereby amended by striking out the figure “$8,000,000” and inserting in place thereof the following figure:- $11,500,000.

SECTION 12. Subsection (c) of section 88 of said chapter 182 is hereby amended by striking out the figure “$346,000,000” and inserting in place thereof the following figure:- $386,000,000.

SECTION 13. Said subsection (c) of said chapter 188 is hereby further amended by striking out the figure “$148,000,000” and inserting in place thereof the following figure:- $228,000,000.

SECTION 14. Said subsection (c) of said section 88 of said chapter 182 is hereby further amended by striking out the figure “$74,000,000” and inserting in place thereof the following figure:- $114,000,000.

SECTION 15. Section 2A of chapter 302 of the acts of 2008 is hereby amended by striking out item 1599-6379 and inserting in place thereof the following item:-

1599-6379 For a reserve to meet the fiscal year 2009 costs of salary adjustments and other economic benefits authorized by the collective bargaining agreement between the commonwealth and the Service Employees International Union; provided, that the secretary of administration and finance may transfer from the sum appropriated in this item to other items of appropriation and allocations thereof for fiscal year 2009 amounts that are necessary to meet those costs where the amounts otherwise available are insufficient for the purpose, in accordance with a transfer plan which shall be filed in advance with the house and senate committees on ways and means; and provided further, that no more than $20,000,000 of the appropriated amount shall be transferred for the costs of the collective bargaining agreement, and the rest shall revert to the General Fund on June 30, 2010.................. $20,000,000

SECTION 16. Notwithstanding any general or special law to the contrary in addition to funds already authorized to be transferred, the comptroller shall, on or before June 30, 2009, transfer $327,000,000; or a lesser amount if the secretary of administration and finance so requests in writing to the General Fund from the Commonwealth Stabilization Fund. The comptroller, in consultation with the secretary of administration and finance, may take the overall cash flow needs of the commonwealth into consideration in determining the timing of any transfer of funds. The comptroller shall provide a schedule of transfers to the secretary of administration and finance and to the house and senate committees on ways and means.

SECTION 17. Notwithstanding any general or special law to the contrary in addition to the reduction made by clause (2) of subsection (a) of section 7 of chapter 377 of the acts of 2008, the appropriations for fiscal year 2009 in section 2 of chapter 182 of the acts of 2008 for the office of the governor shall be reduced by $286,943.

SECTION 18. Notwithstanding sections 12 and 15 of chapter 29 of the General Laws, the authorization to transfer from the General Fund to the MassHealth provider payment account in the Medical Assistance Trust Fund under section 123 of chapter 139 of the acts of 2006, chapters 146 and 176 of the acts of 2006 and section 57 of chapter 61 of the acts of 2007 shall expire on June 30, 2009; provided, that such transfers may be made during fiscal year 2009 upon the direction of the secretary of administration and finance.

SECTION 19. Notwithstanding any general or special law to the contrary the commissioner of capital asset management and maintenance, after consulting with the head of the leasing state agency or the chief justice for administration and management, may exercise any contractual right to terminate a lease for nonappropriation or nonallotment if, in the determination of the agency head or the chief justice for administration and management, insufficient funds are available within the agency's or the court's appropriation or allotment to maintain the lease consistent with maintaining core governmental functions.

SECTION 20. Notwithstanding any general or special law to the contrary, for weeks of unemployment beginning on or after March 15, 2009, the governor may elect to pay unemployment compensation to otherwise eligible individuals pursuant to the emergency unemployment compensation provisions of the Supplemental Appropriations Act of 2008, Pub. L. 110-252, as amended by the Unemployment Compensation Extension Act of 2008, Pub. L. 110-449, and any further extensions or amendments thereto, prior to the payment of extended benefits under section 30A of chapter 151A of the General Laws.

SECTION 21. Section 4 shall take effect for returns filed on or after January 1, 2009.

SECTION 22. Sections 6 and 7 shall take effect on March 21, 2008.

SECTION 23. Section 19 shall expire on June 30, 2010.

Approved March 19, 2009


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