H. B. 3076
(By Delegates Martin, Walker, Butcher, D. Poling,
M. Poling, Boggs, Perry, Caputo, Hamilton and Ellem)
[Introduced March 11, 2009; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact §21-3D-1, §21-3D-2, §21-3D-3, §21-3D-4,
§21-3D-7 and §21-3D-8 of the Code of West Virginia, 1931, as
amended; and to amend said code by adding thereto five new
sections, designated §21-3D-5a, §21-3D-5b, §21-3D-6a,
§21-3D-6b and §21-3D-6c, all relating to the regulation and
operation of cranes; establishing certification renewal
requirements; requiring the display of licenses; establishing
complaint process, hearing procedures and judicial review.
Be it enacted by the Legislature of West Virginia:
That §21-3D-1, §21-3D-2, §21-3D-3, §21-3D-4, §21-3D-7 and
§21-3D-8 of the Code of West Virginia, 1931, as amended, be amended
and reenacted; and that said code be amended by adding thereto five
new sections, designated §21-3D-5a, §21-3D-5b, §21-3D-6a, §21-3D-6b
and §21-3D-6c, all to read as follows:
ARTICLE 3D. CRANE OPERATOR CERTIFICATION ACT.
§21-3D-1. Definitions.
For purposes of this article:
(a) "Commissioner" means the Commissioner of the Division of
Labor, or his or her authorized representative.
(b) "Crane" means a power-operated hoisting machine used in
construction, demolition or excavation work, which has a power-
operated winch and load line and a power-operated boom that moves
laterally by the rotation of the machine on a carrier, and which
has a manufacturer's rated lifting capacity of five tons or more.
"Crane" does not mean a forklift, digger derrick truck, bucket
truck or any vehicle, aircraft or helicopter, or equipment which
does not have a power-operated winch and load line.
(c) "Emergency basis" means an occurrence of an event,
circumstance or situation that presents an imminent threat to
persons or property and constitutes a serious health or safety
hazard.
(d) "Employer" means any person, firm, corporation or other
entity who hires or permits any individual to work.
(e) "Employee" means any individual employed by an employer
and also as defined by the commissioner.
(f) "Tower crane" means a crane in which a boom, swinging jib,
or other structural member is mounted on a vertical mast or tower.
(f) (g) "Training or training course" means a course approved
by the commissioner which includes some form of testing throughout, or a final written examination or practical test, or both, which
ensures, or tends to ensure that learning has occurred and that the
objectives of the training have been realized. The commissioner
will evaluate whether the approved training adequately demonstrates
competency to safely operate cranes.
§21-3D-2. Certification required; exemptions.
(a) Commencing with September 1, two thousand one, A person
may not operate a crane with a lifting capacity of five tons or
more or tower crane without certification issued under this article
except for those persons exempted under subsection (b) of this
section.
(b) A person is not required to obtain certification under
this article if the person:
(1) Is a member of the Armed Forces of the United States or an
employee of the United States, when such member or employee is
engaged in the work of a crane operator exclusively for such
governmental unit; or
(2) Is primarily an operator of farm machinery who is
performing the work of a crane operator as part of an agricultural
operation; or
(3) Is operating a crane on an emergency basis; or
(4) Is operating a crane for personal use and not for profit
on the site of real property which the person owns or leases; or
(5) Is under the direct supervision of a certified crane operator and:
(A) Who is enrolled in an industry recognized in-house
training course based on the American National Standards Institute
Standards for Crane Operators and who is employed by the entity
that either taught the training course or contracted to have the
training course taught, all of which is approved by the
commissioner; or
(B) Who is enrolled in an apprenticeship program or training
program for crane operators approved by the United States
Department of Labor, Bureau of Apprenticeship and Training;
(6) Is an employee of and operating a crane at the direction
of any manufacturing plant or other industrial establishment,
including any mill, factory, tannery, paper or pulp mill, mine,
colliery, breaker or mineral processing operation, quarry, refinery
or well or is an employee of and operating a crane at the direction
of the person, firm or corporation who owns or is operating such
plant or establishment;
(7) Is an employee of a public utility operating a crane to
perform work in connection with facilities used to provide a public
service under the jurisdiction of the Public Service Commission,
Federal Energy Regulatory Commission or Federal Communications
Commission; or
(8) Is operating timbering harvesting machinery associated
with the production of timber and the manufacturing of wood products.
§21-3D-3. Powers and duties of commissioner.
The commissioner shall:
(a) Propose rules for legislative approval in accordance with
the provisions of article three, chapter twenty-nine-a of this
code, no later than July 1, two thousand, which rules at the
minimum must include provisions for:
(1) Certification of individuals who operate cranes or tower
crane in the State of West Virginia, which certification process
must include a written examination and a practical demonstration,
and must utilize standards no less restrictive than those
prescribed by the American society of mechanical engineers/American
National Standards Institute Safety Code and personnel
certification accreditation standards; as of the effective date of
this article: Provided, That the rule governing the practical
examination must be a separate rule and provide for the
implementation of the practical examination on or before July 1,
two thousand one: Provided, however, That the successful
completion of a training course approved by the commissioner may be
substituted for the written examination and for the practical
demonstration as set forth in section four of this article
(2) Certification categories that must include including
lattice boom truck cranes; lattice boom crawler cranes; small
telescoping boom cranes, with a lifting capacity of at least five tons but not more than seventeen and one-half tons
and large
telescopic boom cranes, with a lifting capacity greater than
seventeen and one-half tons fixed cab-telescoping boom cranes;
swing cab-telescoping boom cranes; and tower cranes;
(3) Certification renewal requirements;
of individuals who operate cranes in the State of West Virginia,
that may not be more restrictive than those prescribed for the
individual's initial certification, but must include a written
examination and a current physician's certificate at least every
five years: Provided, That the successful completion of a training
course approved by the commissioner may be substituted for the
written examination
(b) Prescribe application forms for original and renewal
certification.
(c) Set application fees in amounts that are reasonable and
necessary to defray the costs of the administration of this article
in an amount not to exceed seventy-five dollars per year.
(d) Set examination and training course fees in an amount not
to exceed the actual cost of the examination and the training
course.
(e) Administer or cause to be administered the written
examination, practical demonstrations and the training course as
required for certification.
(f) Determine the standards for acceptable performance on the written examination, practical demonstration and the required
training course.
Provided, That the minimum Standards must be
consistent with national standards, current operating procedures
and technology and be transferable to other states where possible.
Provided, however, That the commissioner shall develop standards
and criteria to establish a dual classification system of
certification and implement this dual system of certification no
later than January 1, two thousand one
(g) Provide the option for applicants and crane operators to
take examinations that meet or exceed requirements for national
crane operator certification.
(h) Take other action as necessary to enforce this article.
§21-3D-4. Minimum certification requirements.
(a) The commissioner shall certify an applicant who:
(1) Is at least eighteen years of age;
(2) Meets the application requirements as prescribed by rule;
(3) Passes the written examination; Provided, That
any person
who documents at least two thousand hours of on-the-job experience
operating a crane during the four years immediately preceding
filing for application, or successfully completes a training course
approved by the commissioner, and applies for certification no
later than September 1, two thousand one, and meets all other
requirements and pays all applicable fees, is entitled to
certification without a written examination
(4) Passes the practical demonstration; Provided, That the
practical demonstration approved by the commissioner may be
administered on-site by a qualified company representative:
Provided, however, That any person who documents at least two
thousand hours of on-the-job experience operating a crane during
the preceding four years next prior to filing for application or
the successful completion of a training course approved by the
commissioner is entitled to certification without a practical
demonstration under this article if the person applies for
certification no later than September 1, two thousand one, meets
all other requirements and pays applicable application and
examination fees
(5) Presents the original, or a photographic copy, of a
physician's certificate that he or she is physically qualified to
drive a commercial motor vehicle as required by 49 C.F.R. §391.41,
as of the effective date of this article or an equivalent
physician's certificate as approved by the commissioner; and
(6) Pays the application, training or examination fees as is
appropriate fees.
(b) Certification issued under this article is valid
throughout the state and is not assignable or transferable, and is
valid for one year from the date on which it was issued.
(c) Notwithstanding any other provision of this section, the
Division of Labor may issue a temporary certification, to expire on January 1, two thousand one, to an applicant who: (1) Documents at
least two thousand hours of on-the-job experience during the
preceding four years; (2) submits scores for the written
examination; and (3) provides proof of attendance at an approved
crane safety training course, in an application for certification
filed not later than July 1, two thousand.
(d) Notwithstanding any other provision of this article to the
contrary, the commissioner shall establish a dual classification
system of certification no later than January 1, two thousand one.
One classification will provide eligibility for national
certification, and the applicant must achieve a passing score of
seventy on the national commission for the certification of crane
operators written examination. To be classified for West Virginia
certification, the commissioner may accept a lesser score on the
national commission for the certification of crane operators
written examination: Provided, That this score may not be less
than sixty for state certification: Provided, however, That the
successful completion of a training course approved by the
commissioner may be substituted for the written examination and for
the practical demonstration if the applicant applies for
certification no later than September 1, two thousand one. The
commissioner shall propose a legislative rule as to the dual
classification system no later than July 1, two thousand.
§21-3D-5a. Renewal requirements.
(a) All persons regulated by this article shall annually
before January 1, renew his or her certification by completing a
form prescribed by the commissioner and submit any other
information required by the commissioner.
(b) At least thirty days prior to January 1, annually, the
commissioner shall mail to every person regulated by the article an
application for renewal.
(c) The commissioner shall charge a fee for each renewal of a
certification and shall charge a late fee for any renewal not
properly completed and received with the appropriate fee by the
commissioner before January 1.
(d) The commissioner may renew the certification of an
individual who was licensed only in West Virginia if that person
completes a training program approved by the commissioner.
(e) The commissioner may deny an application for renewal for
any reason which would justify the denial of an original
application for a certification.
§21-3D-5b. Display of license.
(a) The commissioner shall prescribe the form for a license,
permit and certification and may issue a duplicate, upon payment of
a fee.
(b) Any person regulated by the board shall carry proof of
valid certification on his or her person during the performance of
their duties.
§21-3D-6a. Complaints; investigations; due process procedure;
grounds for disciplinary action.
(a) The commissioner shall upon any accident or upon the
written complaint of any person cause an investigation to be made
to determine whether grounds exist for disciplinary action under
this article or the legislative rules of the commissioner.
(b) Upon initiation or receipt of the complaint, the
commissioner shall provide a copy of the complaint to the
certificate holder.
(c) The commissioner may cause an investigation to be made
into the facts and circumstances giving rise to the complaint and
any person regulated by this article has an affirmative duty to
assist the commissioner, or its authorized representative, in the
conduct of its investigation.
(d) After reviewing any information obtained through an
investigation, the commissioner shall determine if probable cause
exists that the certificate holder has violated any provision of
this article or rules promulgated pursuant to this article.
(e) Upon a finding that probable cause exists that the
certificate holder has violated any provision of this article or
rules promulgated pursuant to this article, the commissioner may
enter into a consent decree or hold a hearing for the suspension or
revocation of the certification or the imposition of sanctions
against the certificate holder. The hearing shall be held in accordance with the provisions of section fourteen of this article.
(f) The commissioner may issue subpoenas and subpoenas duces
tecum to obtain testimony and documents to aid in the investigation
of allegations against any person regulated by the article.
(g) The commissioner may sign a consent decree or other legal
document.
(h) The commissioner may, after notice and opportunity for
hearing, deny or refuse to renew, suspend or revoke the
certification of, impose probationary conditions upon or take
disciplinary action against, any certificate holder for any of the
following reasons:
(1) Obtaining a certification by fraud, misrepresentation or
concealment of material facts;
(2) Being convicted of a felony or other crime involving moral
turpitude;
(3) Being guilty of unprofessional conduct as defined by
legislative rule of the commissioner;
(4) Violating any provision of this article or lawful order or
rule of the commissioner;
(5) Having had an authorization revoked or suspended, other
disciplinary action taken, or an application for licensure or other
authorization refused, revoked or suspended by the proper
authorities of another jurisdiction, irrespective of intervening
appeals and stays; or
(6) Engaging in any act which has endangered or is likely to
endanger the health, welfare or safety of the public.
(i) For the purposes of subsection (h) of this section,
disciplinary action may include:
(1) Reprimand;
(2) Probation;
(3) Administrative fine, not to exceed $1,000 per day per
violation;
(4) Mandatory attendance at continuing education seminars or
other training;
(5) Practicing under supervision or other restriction;
(6) Requiring the licensee to report to the commissioner for
periodic interviews for a specified period of time; or
(7) Other corrective action considered by the commissioner to
be necessary to protect the public, including advising other
parties whose legitimate interests may be at risk.
(j) A person whose certification has been revoked may apply
for certification one year after the date of the revocation.
§21-3D-6b. Procedures for hearing; right of appeal.
(a) Hearings shall be governed by the provisions of section
eight, article one of this chapter.
(b) The commissioner may conduct the hearing or elect to have
an administrative law judge conduct the hearing.
(c) If the hearing is conducted by an administrative law judge, at the conclusion of a hearing he or she shall prepare a
proposed written order containing findings of fact and conclusions
of law. The proposed order may contain proposed disciplinary
actions if the commissioner so directs. The commissioner may
accept, reject or modify the decision of the administrative law
judge.
(d) The commissioner has the authority to administer oaths,
examine any person under oath and issue subpoenas and subpoenas
duces.
(e) If, after a hearing, the commissioner determines the
certificate holder has violated any provision of this article or
the commissioner's rules, a formal written decision shall be
prepared which contains findings of fact, conclusions of law and a
specific description of the disciplinary actions imposed.
§21-3D-6c. Judicial review; appeal to Supreme Court of Appeals.
Any certificate holder adversely affected by a decision of the
commissioner entered after a hearing may obtain judicial review of
the decision in accordance with section four, article five, chapter
twenty-nine-a of this code, and may appeal any ruling resulting
from judicial review in accordance with article six, chapter
twenty-nine-a of this code.
§21-3D-7. Penalties.
(a) A person required to obtain certification under this
article, who operates a crane
or tower crane without certification, is guilty of a misdemeanor and, upon conviction thereof, shall be
fined not less than $50 nor more than $500 for each violation.
(b) No person may knowingly or intentionally drive or operate
a crane
or tower crane while:
(1) Having any measurable alcohol in his or her system; or,
(2) Under the influence of any controlled substance, as
defined by subdivision (d), section one hundred one, article one,
chapter sixty-a of this code; or
(3) Under the combined influence of alcohol and any controlled
substance or any other drug.
A person who violates this subsection is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not less
than $100 nor more than $1,000. In addition to the fine, the
Commissioner of Labor shall revoke the person's certification for
not less than one year.
(c) An employer who knowingly employs, permits or directs a
person to operate a crane
or tower crane without proper
certification is guilty of a misdemeanor and, upon conviction
thereof, shall be fined not less than $100 nor more than $1,000 for
each violation.
(d) A person, operating a crane
or tower crane, who fails to
produce the certification within twenty-four hours after request
of the commissioner or his or her authorized representative, is
guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $50 nor more than $100.
(e) If a person is convicted for an offense described in this
section, and does not act to appeal the conviction within the time
periods as hereinafter described, then the person's certification
may be revoked or suspended in accordance with the provisions of
this article, and, further:
(1)
The clerk of the court in which a person is convicted for
an offense described in this section shall forward to the
commissioner a transcript of the judgment of conviction. If the
conviction is the judgment of a magistrate court, the magistrate
court clerk shall forward the transcript when the person convicted
has not requested an appeal within twenty days of the sentencing
for such conviction. If the conviction is the judgment of a
circuit court, the circuit clerk shall forward the transcript when
the person convicted has not filed a notice of intent to file a
petition for appeal or writ of error within thirty days after the
judgment was entered; and,
(2) If, upon examination of the transcript of the judgment of
conviction, the commissioner shall determine that the person was
convicted for any of the offenses described in this section, the
commissioner shall make and enter an order revoking or suspending
the person's certificate to operate a crane or tower crane in this
state. The order shall contain the reasons for the revocation or
suspension and the revocation or suspension periods provided for by this article or by rule. Further, the order shall give the
procedures for requesting a hearing. The person shall be advised
in the order that because of the receipt of a transcript of the
judgment of conviction by the commissioner a presumption exists
that the person named in the transcript of the judgment of
conviction is the person named in the commissioner's order and such
constitutes sufficient evidence to support revocation or suspension
and that the sole purpose for the hearing held under this section
is for the person requesting the hearing to present evidence that
he or she is not the person named in the transcript of the judgment
of conviction. A copy of the order shall be forwarded to the
person by registered or certified mail, return receipt requested.
No revocation or suspension shall become effective until ten days
after receipt of a copy of the order; and
(3) The provisions of this subsection shall do not apply if an
order reinstating the crane or tower crane operator's certification
of the person has been entered by the commissioner prior to the
receipt of the transcript of the judgment of conviction; and
(4) For the purposes of this section, a person is convicted
when the person enters a plea of guilty or is found guilty by a
court or jury.
§21-3D-8. Crane operator certification fund; fees; disposition
of funds.
(a) There is hereby established continued a Crane Operator Certification Fund in the State Treasurer's Office.
(b) The commissioner may set reasonable application fees for
the issuance or renewal of certificates and other services
associated with crane operator certification.
(c)(1) (b)(1) The commissioner shall receive and account for
all money that is derived pursuant to the provisions of this
article. The commissioner shall pay all money collected into the
Crane Operator Certification Fund that has been established
pursuant to subsection (a), section eight of this article, with the
exception of money received as fines. This money shall be used
exclusively by the commissioner for purposes of administration and
enforcement of his or her duties pursuant to this article.
(2) Expenditures from the Crane Operator Certification Fund
shall be for the purposes set forth in this article and are not
authorized from collections but are to be made only in accordance
with appropriation by the Legislature in accordance with the
provisions of article three, chapter twelve of this code and upon
the fulfillment of the provisions set forth in article two, chapter
five-a of this code. Provided, That for the fiscal year ending on
June 30, one thousand nine hundred ninety-nine, expenditures are
authorized from collections rather than pursuant to an
appropriation by the Legislature Amounts collected which are found
from time to time to exceed the funds needed for purposes set forth
in this article may be transferred to other accounts or funds and redesignated for other purposes by appropriation of the
Legislature.
NOTE: The purpose of this bill is to regulate the operation of
cranes; to establish certification renewal requirements; to require
the display of licenses; to establish a complaint process, hearing
procedures and judicial review.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
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