WEST virginia legislature

2019 regular session

Committee Substitute

for

House Bill 3016

By Delegates Butler and Porterfield

(By Request of the Department of Transportation)

[Originating in the Committee on Finance, February 21, 2019.]

A BILL to repeal §29-2A-9,  §29-2A-17, §29-2A-18, §29-2A-19, §29-2A-21, §29-2A-22, §29-2A-23, §29-2A-24, §29-2A-25, §29-2A-26, §29-2A-27 and §29-2A-28 of the Code of West Virginia, 1931, as amended; and to amend and reenact §29-2A-1, §29-2A-2, §29-2A-3, §29-2A-4, §29-2A-5, §29-2A-6, §29-2A-7, §29-2A-11,  §29-2A-14 and §29-2A-20 of said code, all relating to the State Aeronautics Commission; repealing provisions relating to state airways systems,  investigations, inquiries and hearings, disposition of fees, joint hearings, cooperation with and reports to agencies of state the United States, the use of state and municipal facilities and services, commission orders, notices and opportunity for hearings, judicial review of commission actions, criminal penalties and exchange of information for violations of provisions of article, severability, repeal of inconsistent provisions, and short title; removing antiquated and inoperable provisions modifying and deleting definitions; continuing the State Aeronautics Commission; modifying and updating membership requirements, powers, and duties of the commission; setting forth quorum and meeting requirements; providing for the organization and operation of the commission; modifying provisions related to the director of the commission; updating provisions related to funding and federal aid; continuing general powers related to planning, establishing, constructing, maintaining, and operating of airports; removing requirement for delivery of abstract of conviction to commission;  and clarifying authority to require presentment of certificate, permit, rating or license and to enforce aeronautics laws.

Be it enacted by the Legislature of West Virginia:

ARTICLE 2A. STATE AERONAUTICS COMMISSION.

§29-2A-1. Definitions.

As used in the statutes of West Virginia, unless the context otherwise requires:

(a) “Aeronautics” means the art and science of flight, including, but not limited to, transportation by aircraft; the operation, construction, repair, or maintenance of aircraft, aircraft power plants and accessories, including the repair, packing, and maintenance of parachutes; and the design, establishment, construction, extension, operation, improvement, repair, or maintenance of airports or other air navigation facilities; and education about aeronautics.

(b) “Aircraft” means any contrivance now known, or hereafter invented, used or designed for navigation of or flight in the air.

(c) “Airmen” means any individual who engages, as the person in command, or as pilot, mechanic or member of the crew, in the navigation of the aircraft while under way and any individual who is directly in charge of the inspection, maintenance, overhauling or repair of aircraft engines, propellers or appliances and any individual who serves in the capacity of aircraft dispatcher or air-traffic control-tower operator. It does not include any individual employed outside the United States, or any individual employed by a manufacturer of aircraft, aircraft engines, propellers or appliances to perform duties as inspector or mechanic in connection therewith, or any individual performing inspection or mechanical duties in connection with aircraft owned or operated by him or her

(d) “Air navigation” or “navigation” means the operation or navigation of aircraft in the air space over this state, or upon any airport within this state.

(e) “Air navigation facility” means any facility other than one owned or controlled by the federal government used in, available for use in, or designed for use in aid of air navigation, including airports, and any structures, mechanisms, lights, beacons, markers, communications system or other instrumentalities or devices used or useful as an aid or constituting an advantage or convenience to the safe taking off, navigation, and landing of aircraft or the safe and efficient operation or maintenance of an airport, and any combination of any or all of such facilities.

(f) “Airport” means any area of land or water which is used, or intended for use, for the landing and takeoff of aircraft and any appurtenant areas which are used, or intended for use, for airport buildings or other airport facilities or rights-of-way, together with all airport buildings and facilities located thereon.

(g) “Airport hazard” means any structure, object of natural growth or use of land which obstructs the air space required for the flight of aircraft in landing or taking off at any airport or is otherwise hazardous to such landing or taking off

(h) “Commission” means the West Virginia State Aeronautics Commission.

(i) “Director” means the director of aeronautics of this state the Commission.

(j) “Municipality” means any county, city, town, village, or other political subdivision of this state. “Municipal” means pertaining to a municipality as herein defined.

(k) “Operation of aircraft” or “operate aircraft” means the use, navigation, or piloting of aircraft in the airspace over this state or upon the ground within this state.

(l) “Person” means any individual, firm, copartnership partnership, corporation, company, association, joint stock association, or body politic and includes any trustee, receiver, assignee, or other similar representative thereof.

(m) The singular of any of the above defined terms shall include the plural and plural the singular.

§29-2A-2. Creation and membership Short title; continuation of commission; membership and compensation; quorum.

There is hereby created an aeronautics commission, to be known as “The West Virginia State Aeronautics Commission”, to consist (a) This article may be cited as the “State Aeronautics Commission Act”.

(b) The West Virginia State Aeronautics Commission is hereby continued. The current members shall retain their seats until the expiration of their terms and may be reappointed. The commission consists of five members to be appointed by the Governor, by and with the advice and consent of the Senate. One of such members member shall be the Secretary of Transportation ex officio, whose term as such member shall continue for the period that he or she holds the office of Secretary of Transportation. The other four members of the commission shall be are initially appointed by the Governor, each to serve a term beginning the July 1, 1947 one to serve for a term of one year, one to serve for a term of two years, one to serve for a term of three years, and one to serve for a term of four years. The successors of the members (other than the Secretary of Transportation) initially appointed as provided herein shall be appointed for terms of four years each in the same manner as the members originally appointed under this article section, except that any person appointed to fill a vacancy occurring prior to the expiration of the term for which his or her predecessor was appointed shall be appointed only for the remainder of such term. Each member shall serve until the appointment and qualification of his or her successor. No more than three members of the commission shall be members of the same political party. All members of the commission shall be citizens and residents of this state. The members of the commission who shall be are appointed by the Governor as provided by this section shall be selected with due regard to their fitness by reason of their aeronautical, legal, administrative, or management knowledge. and practical experience in the field of aeronautics  In making such appointments, the Governor shall, so far as may be possible and practicable, select the several members from different geographical sections of the state.

(c) No member shall may receive any salary for his or her services, but each shall be reimbursed for actual and necessary expenses incurred by such member in the performance of his or her duties in accordance with state travel rules.

(d) Three members are a quorum, and a quorum is necessary to conduct business. Members may participate in any meeting by phone.

§29-2A-3. Powers and duties of commission.

The commission shall assume, carry on and succeed to all the duties, rights, powers, obligations and liabilities heretofore belonging to, exercised by, or assumed by the state board of aeronautics, pursuant to statutory authority heretofore existing and as changed or modified by the provisions of this article. It The commission may enter into any contracts necessary to the execution of the powers granted to it by this article. It is empowered and directed to encourage, foster, and assist in the development of aeronautics in this state and to encourage the establishment of airports and air navigation facilities. It shall cooperate with and assist the federal government, the municipalities of this state, and other persons in the development of aeronautics and shall act to coordinate the aeronautical activities of these bodies and persons. Municipalities are authorized to cooperate with the commission in the development of aeronautics and aeronautics facilities in this state. The commission is hereby given the power and authority to make such rules rules, policies, and guidelines as it may deem necessary and advisable for the public safety, governing the designing, laying out, locating, building, equipping and operating of all airports and the conduct of all other phases of aeronautics to effectuate the requirements of this article.

(1)  The commission shall keep on file with the Secretary of State, and at the principal office of the commission, a copy of all its rules and orders having general effect for public inspection. It shall provide for the publication and general distribution of all its orders, rules, and procedures having general effect other information of public interest. Copies of any such orders, or rules, and other information shall be delivered made available electronically and provided to any person interested, free of charge, upon request. The publication and distribution of any such order or rule as provided herein in proposed for legislative approval in accordance with the provisions of §29A-3-1 et seq. of this code shall be sufficient notice to the public of the provisions, requirements, and effect thereof.

Each rule of the commission shall be promulgated as a legislative rule pursuant to the provisions of chapter twenty-nine-a of this code

(2)  Except where otherwise prohibited, the commission is authorized to permit the state Board of Investments West Virginia Board of Treasury Investments or the West Virginia Investment Management Board to invest, as provided by this code, any funds received by the commission pursuant to the provisions of this code.

§29-2A-4. Organization of commission; meetings; reports; offices.

(a)  The commission shall make, and may from time to time amend, rules for the administration of the powers granted to it by this article. as are not inconsistent therewith and as the commission may deem expedient The commission shall organize by electing from among its members a chairman chairperson who shall serve as such for a period of two years. Such chairman shall have the power The chairperson is authorized to sign documents, execute contracts, and otherwise act for and in the name of the commission in all matters within the lawful powers of the commission and duly authorized by a majority of its members.

(b)  The commission shall determine the number, date, and place of its regular meetings, but at least one such meeting shall be held annually at the commission's established offices in the city of Charleston. Whenever the convenience of the public or of interested persons may be promoted, or delay or expense may be prevented, the commission may hold meetings hearings or proceedings at any other place designated by it.

(c)  The commission shall report in writing to the Governor on or before August 31 of each year. The report shall contain a summary of the commission's proceedings during the preceding fiscal year, a detailed and itemized statement of all revenue received, and all expenditures made by or on behalf of the commission, such other information as it may deem which may be necessary or useful, and any additional information which may be requested by the Governor. The fiscal year of the commission shall conform to the fiscal year of the state.

(d)  An office shall be established and maintained by the commission in the city of Charleston. In addition, the commission may establish and maintain such other offices within the state as it may deem necessary and expedient

§29-2A-5. Director of aeronautics; appointment, qualifications, compensation, powers and duties; administrative and other assistants staff.

(a)  A director of aeronautics shall be appointed by the commission, with the advice and consent of the Secretary of Transportation, who shall serve for an indefinite term at the pleasure of the commission. The director shall be appointed with due regard to his or her fitness by aeronautical education and by knowledge of and recent practical experience in aeronautics, for the efficient dispatch of the powers and duties vested in and imposed upon him by this article as an administrator. The director shall devote his or her time to the duties of his or her office as required and prescribed by this article and shall may not have any pecuniary interest in, or any stock in, or bonds of, any civil aeronautical enterprise. The director shall receive such compensation as the commission may determine.  which said The Secretary of Transportation, in consultation with the commission, shall determine the director’s compensation. The compensation shall however conform in general to the compensation received by persons occupying positions of similar importance and responsibility with other agencies of this state. The director’s compensation may not be paid, in whole or in part, from grant funds received by the commission.  The director shall be reimbursed for all traveling and other expenses incurred by him or her in the discharge of his or her official duties in accordance with state travel rules. The director shall be the executive officer of the commission and under its supervision shall administer the provisions of this article and the rules and orders established thereunder and all other applicable laws of the state relative to aeronautics. The director shall attend, but not vote, at all meetings of the commission. The director shall act as serves as the secretary of the commission and shall be is in charge of its offices and responsible to the commission for the preparation of reports and the collection and dissemination of data and other public information relating to aeronautics. At the direction of the commission, the director shall, together with the chairman of the commission, is authorized to execute all contracts entered into by the commission which are legally authorized and for which funds are provided in any state or federal appropriations act.

(b)  The commission may, by written order filed in its office, delegate to the director any of the powers or duties vested or imposed upon it by this article. Such Any delegated powers and duties may be exercised by such the director in the name of the commission. The commission may also employ such any necessary administrative, engineering, technical, and clerical assistance as may be required staff.  The director and such other assistants may, under the supervision of the commission, insofar as is reasonably possible, make available the engineering and other technical services of the commission, without charge to any municipality, and with or without charge to any other person desiring them, in connection with the construction, maintenance or operation, or proposed construction, maintenance or operation of any airport

§29-2A-6. State financial assistance for county, municipal, and regional airports.

The commission, out of any appropriation made to it by the Legislature or out of any funds at its disposal, may make funds available by grant or otherwise to counties, municipalities, and regional airport authorities, created under the provisions of chapter eight of this code, for the planning, acquisition, construction, improvement, maintenance, or operation of airports owned or operated or to be owned or operated by such counties, municipalities, or regional airport authorities. Acceptance of any moneys so made available to any such county, municipality, or regional airport authority, shall constitute consent by the recipient that a reasonable use of such the airport may be made, upon request of the commission, by the United States government, the state, or any of their respective agencies, including the State Aeronautics Commission and the National Guard of West Virginia for state purposes related or incidental to aeronautics. Such financial assistance may be furnished in connection with federal or other financial aid for the same purpose

§29-2A-7. Federal aid.

(a) The commission is authorized to cooperate with the government of the United States, and any agency or department thereof, in the planning, acquisition, construction, improvement, maintenance and operation of airports and other air navigation facilities in this state. and The commission is authorized to accept federal aid either outright or by way of matching the same funds, in whole or in part, as may be required, and when by the federal government.  When matching funds for matching are available to the commission, and to comply they may be used in compliance with the provisions of the laws and regulations of the United States and any regulations made thereunder for the expenditure of federal moneys upon such for airports and other air navigation facilities. 

(b) The commission is authorized to accept and receive and receipt for federal moneys and other moneys, either public or private, for and in on behalf of this state, or any municipality thereof, for the planning, acquisition, construction, improvement, maintenance, and operation of airports and other air navigation facilities. whether such The funds may be expended regardless of whether the work is to be done by the state or by such a municipality, or jointly.  If the funds are aided by grants of aid from the United States, they shall be expended upon such terms and conditions as are or may be prescribed by the laws of the United States and any rules or regulations made thereunder. and it The commission is hereby designated as the agency of the state, and is authorized to and may act as agent of any municipality of this state upon the request of such municipality, in accepting and receiving and receipting for such moneys in on its behalf for airports or other air navigation facility purposes, and in contracting for the planning, acquisition, construction, improvement, maintenance, or operation of airports or other air navigation facilities, financed, either in whole or in part, by federal moneys. and any such A municipality is authorized to and may enter into an agreement with the commission prescribing the terms and conditions of such agency in accordance with federal laws, rules, and regulations and with this article. Such All moneys as are paid over by the United States government shall be retained by the state or paid over to said municipalities under such terms and conditions as may be imposed by the United States government in making such grants.

(c)  All contracts for the planning, acquisition, construction, improvement, maintenance, and operation of airports, or other air navigation facilities made by the commission, either as the agent of the state or as the agent of any municipality therein, shall be made pursuant to the laws of this state governing the making of like contracts: Provided, That where the planning, acquisition, construction, improvement, maintenance, and operation of any airport or other air navigation facility is financed wholly or partially with federal moneys, the commission, as agent of the state or of any municipality thereof, may let contracts in the manner prescribed by the federal authorities, acting under the laws of the United States, and any rules or regulations made thereunder, notwithstanding any other state law to the contrary.

(d) All moneys accepted for disbursement by the commission pursuant to this section shall be deposited in the State Treasury, and, unless otherwise prescribed by the authority from which the money is received, kept in separate funds, designated according to the purposes for which the moneys were made available, and held by the state in trust for such purposes. All such moneys are hereby appropriated for the purposes for which the same they were made available and shall be expended in accordance with federal laws and regulations and with the provisions of this article. The commission is authorized, whether acting for this state or as the agent of any municipality therein, when requested by the United States government or any agency or department thereof, or when requested by the state or municipality for which the money has been made available, to disburse such moneys for the designated purposes, but this shall not preclude any other authorized method of disbursement.

(e) The state or any municipality therein is authorized to cooperate with the government of the United States, and any agency or department thereof, in the acquisition, construction, improvement, maintenance, and operation of airports and other air navigation facilities in this state and is authorized to accept federal aid, either by way of outright grant or by matching the same funds, in whole or in part, as may be required, and to comply with the provisions of the laws of the United States and any rules or regulations made thereunder for the expenditure of federal moneys upon such airports and other navigation facilities.

§29-2A-8. Establishment and operation of state airports.

(a) The commission is authorized on behalf of and in the name of the state, out of appropriations and other moneys made available for such purposes, to plan, establish, construct, maintain, and operate airports and air navigation facilities within the state. For such these purposes the commission may, by purchase, gift, devise, lease, condemnation, or otherwise, acquire such property, real or personal, as is necessary to permit safe and efficient operation of the airports and air navigation facilities. In like manner, the commission may acquire existing airports and air navigation facilities: Provided, however, That it shall not acquire or take over any airport or air navigation facility owned or controlled by a municipality of this or any other state without the consent of such the municipality. The commission may by sale, lease, or otherwise, dispose of any such property, airport, air navigation facility, or portion thereof or interest therein. Such Any disposal by lease shall be made pursuant to the terms of §8-11-6 of the Code of West Virginia §8-28-7 of this code. Such Any disposal by sale or otherwise shall be in accordance with the laws of this state governing the disposition of other property of the state, except that in the case of disposal to any municipality or state government or the United States for aeronautical purposes incident thereto the sale or other disposal may be effected in such manner and upon such terms as the commission may deem determines are in the best interest of the state.

(b)  Nothing contained in this article shall be construed to limit any right, power, or authority of the state or a municipality to regulate airport hazards by zoning.

(c)  The commission may exercise any powers granted by this section jointly with any municipalities or agencies of the state government, with other states or their municipalities, or with the United States.

(d)  In the condemnation of property authorized by this section, the commission shall proceed in the name of the state in the manner provided by §54-1-1, et seq. of this code.

§29-2A-11. Operation of aircraft while under influence of alcohol, controlled substances or drugs; criminal penalties.

(a) Any person who:

(1) Operates an aircraft in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(C) He or she is under the influence of any other drug; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight; and

(2) When so operating an aircraft does any act forbidden by law or fails to perform any duty imposed by law in the operation of such aircraft, which act or failure proximately causes bodily injury to any person other than himself or herself, is guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than five years, or in the discretion of the court, be confined in jail not more than one year and be fined not more than $500.

(b) Any person who:

(1) Operates an aircraft in this state while:

(A) He or she is under the influence of alcohol; or

(B) He or she is under the influence of any controlled substance; or

(C) He or she is under the influence of any other drug; or

(D) He or she is under the combined influence of alcohol and any controlled substance or any other drug; or

(E) He or she has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $500, or both, in the discretion of the court.

(c) Any person who:

(1) Knowingly permits his or her aircraft to be operated in this state by any other person who is:

(A) Under the influence of alcohol; or

(B) Under the influence of any controlled substance; or

(C) Under the influence of any other drug; or

(D) Under the combined influence of alcohol and any controlled substance or any other drug; or

(E) Has an alcohol concentration in his or her blood of four hundredths of one percent or more, by weight;

(2) Is guilty of a misdemeanor, and, upon conviction thereof, shall be confined in jail not more than one year or fined not more than $500, or both, in the discretion of the court.

(d) A person violating any provision of subsection (a) of this section is, for the second offense under this section, guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than five years.

(e) A person violating any provision of subsection (b) or (c) of this section is, for the second offense under this section, guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary for a definite term of imprisonment of not less than one year nor more than three years.

(f) For purposes of subsections (d) and (e) of this section relating to second and subsequent offenses, the following types of convictions shall be regarded as convictions under this section:

(1) Any conviction under the provisions of the prior enactment of this section;

(2) Any conviction under a statute of the United States or of any other state of an offense which has the same elements as an offense described in subsection (a), (b) or (c) of this section.

(g) A person may be charged in a warrant or indictment or information for a second or subsequent offense under this section if the person has been previously arrested for or charged with a violation of this section which is alleged to have occurred within the applicable time periods for prior offenses, notwithstanding the fact that there has not been a final adjudication of the charges for the alleged previous offense. In such case, the warrant or indictment or information must set forth the date, location and particulars of the previous offense or offenses. No person may be convicted of a second or subsequent offense under this section unless the conviction for the previous offense has become final.

(h) The fact that any person charged with a violation of subsection (a) or (b) of this section, or any person permitted to operate an aircraft as described under subsection (c) of this section, is or has been legally entitled to use alcohol, a controlled substance or a drug shall not constitute a defense against any charge of violating subsection (a), (b) or (c) of this section.

(i) For purposes of this section, the term "controlled substance" shall have the meaning ascribed to it in chapter sixty-a of this code.

(j) When any person is convicted of violating any provision of this section, the clerk of the court in which such conviction is had shall, within seventy-two hours after such conviction is had, transmit to the commission a certified abstract of the judgment of conviction. The commission shall, within seventy-two hours after receipt thereof, transmit a true copy thereof to the federal aviation administration.

§29-2A-14. Federal license required for operation of aircraft.

No person shall operate or cause or authorize to be operated any aircraft within this state unless such aircraft has an appropriate effective certificate, permit or license issued by the United States, if such certificate, permit or license is required by the United States; nor shall any person engage in aeronautics as an airman in this state unless he or she has an appropriate effective airman certificate, permit, rating or license issued by the United States authorizing him or her to engage in the particular class of aeronautics in which he or she is engaged, if such certificate, permit, rating or license is required by the United States.

Where a certificate, permit, rating or license is required for an airman by the United States, it shall be kept in his or her personal possession when he or she is operating within this state and shall be presented for inspection upon the demand of any peace officer or any other officer of the state or of a municipality or member, official, or employee of the commission authorized under this article to enforce the aeronautics law of this state,  law enforcement officer, or any official, manager or person in charge of any airport upon which the airman shall land, or upon the reasonable request of any other person. Where a certificate, permit or license is required by the United States for an aircraft, it shall be carried in the aircraft at all times while the aircraft is operating in the state, shall be conspicuously posted in the aircraft where it may readily be seen by passengers or inspectors, and shall be presented for inspection upon the demand of any peace officer, or any other officer of the state or of a municipality or member, official or employee of the commission authorized under this article to enforce the aeronautics laws of this state, law enforcement officer, or any official, manager or person in charge of any airport upon which the aircraft shall land, or upon the reasonable request of any person.

§29-2A-20. Enforcement of aeronautics laws.

It shall be the duty of the commission, its members, the director, officers and such employees of the commission as may be designated by it, and every state and municipal officer charged with the enforcement of state and municipal laws, all law enforcement officers, to enforce and assist in the enforcement of this article and of all rules and orders issued pursuant thereto and of all other laws of this state relating to aeronautics;. and in that connection each of the aforesaid persons is Law enforcement officers are authorized to inspect and examine at reasonable hours any aircraft, the credentials of any airman or other person engaged in aeronautics required by the laws of this state or of the United States to have in his or her possession credentials evidencing his or her authority or permission to engage in aeronautics, any premises and the buildings and other structures thereon, where airports, air navigation facilities or other aeronautical activities are operated or conducted.

The commission is authorized in the name of the state to enforce the provisions of this article and the rules and orders issued pursuant thereto by injunction or other legal process in the courts of this state.

§29-2A-9. State airways.

[Repealed.]

§29-2A-17. Investigations; hearings; power to subpoena witnesses; self-incrimination.

[Repealed.]

§29-2A-18. Disposition of fees.

[Repealed.]

§29-2A-19. Federal-state joint hearings; reciprocal services; accident reporting.

[Repealed.]

§29-2A-21. Use of state and municipal facilities and services.

[Repealed.]

§29-2A-22. Commission orders, notices and opportunity for hearings.

[Repealed.]

§29-2A-23. Judicial review of commission's action.

[Repealed.]

§29-2A-24. Penalties for violation of provisions of article.

[Repealed.]

§29-2A-25. Exchange of information as to violations.

[Repealed.]

§29-2A-26. Severability.

[Repealed.]

§29-2A-27. Repeal.

[Repealed.]

§29-2A-28. Short title.

[Repealed.]