H. B. 2493
(By Delegates Caputo, Manchin, Coleman,
Kuhn, Perdue, Hatfield and Brown)
[Introduced January 22, 2003; referred to the
Committee on Roads and Transportation then the Judiciary.]
A BILL to amend and reenact section one, article six, chapter
seventeen-c of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; to further amend said article
by adding thereto a new section, designated section ten; to
amend and reenact sections ten and eleven, article seventeen
of said chapter; to amend said chapter by adding thereto two
new articles, designated articles seventeen-a and seventeen-b;
to amend and reenact section three, article one, chapter
seventeen-e of said code; and to amend chapter twenty-four-a
of said code by adding thereto a new article, designated
article one-a, all relating to the regulation of commercial
vehicles; decreasing speed limits and increasing speeding
fines for commercial vehicles transporting coal; authorizing
public service commission and its employees to enforce laws of
the road for commercial vehicles; authorizing weight
enforcement for commercial vehicles moving or parked on or within one hundred feet of public rights-of-way; establishing
administrative enforcement process and penalties for vehicles
transporting coal; providing legislative findings for special
regulation of coal transportation on public highways; defining
terms; directing public service commission to administer
commercial vehicle weights and measures; providing that the
division of highways administers all aspects of weight and
safety requirements for public highways; authorizing the
public service commission to promulgate emergency and
legislative rules; providing special operator and vehicle
requirements; providing reporting requirements for vehicle
owners, coal shippers and coal receivers; authorizing
commission employees to inspect certain weight transportation
records; establishing administrative sanctions for coal
vehicle weight violations; establishing new criminal penalties
for weight violations of vehicles transporting coal; creating
criminal penalties for spotting for another vehicle; providing
for the transfer of certain duties, authority and employees of
the division of highways to the public service commission;
providing dates for transfer of these duties; providing that
state road funds for these costs be transferred to the public
service commission; providing that the transfer of these
duties does not alter other law-enforcement agencies
authority; and removing weight from this list of nonserious traffic violations.
Be it enacted by the Legislature of West Virginia:
That section one, article six, chapter seventeen-c of the code
of West Virginia, one thousand nine hundred thirty-one, as amended,
be amended and reenacted; that said article be further amended by
adding thereto a new section, designated section ten; that sections
ten and eleven, article seventeen of said chapter be amended and
reenacted; that said chapter be further amended by adding thereto
two new articles, designated articles seventeen-a and seventeen-b;
that section three, article one, chapter seventeen-e of said code
be amended and reenacted; and that chapter twenty-four-a of said
code be amended by adding thereto a new article, designated article
one-a, all to read as follows:
CHAPTER 17C. TRAFFIC REGULATIONS AND LAWS OF THE ROAD.
ARTICLE 6. SPEED RESTRICTIONS.
§17C-6-1. Speed limitations generally; penalty.
(a) No person may drive a vehicle on a highway at a speed
greater than is reasonable and prudent under the existing
conditions and the actual and potential hazards. In every event
speed shall be so controlled as may be necessary to avoid colliding
with any person, vehicle or other conveyance on or entering the
highways in compliance with legal requirements and the duty of all
persons to use due care.
(b) Where no special hazard exists that requires lower speed for compliance with subsection (a) of this section, the speed of
any vehicle not in excess of the limits specified in this section
or established as hereinafter authorized is lawful, but any speed
in excess of the limits specified in this subsection or established
as hereinafter authorized is unlawful.
(1) Fifteen miles per hour in a school zone during school
recess or while children are going to or leaving school during
opening or closing hours. A school zone is all school property
including school grounds and any street or highway abutting such
school grounds and extending one hundred twenty-five feet along
such street or highway from the school grounds. The speed
restriction does not apply to vehicles traveling on a
controlled-access highway which is separated from the school or
school grounds by a fence or barrier approved by the division of
highways;
(2) Twenty-five miles per hour in any business or residence
district;
(3) Fifty-five miles per hour on open country highways, except
as otherwise provided by this chapter.
The speeds set forth in this section may be altered as
authorized in sections two and three of this article.
(c) The driver of every vehicle shall, consistent with the
requirements of subsection (a) of this section, drive at an
appropriate reduced speed when approaching and crossing an intersection or railway grade crossing, when approaching and going
around a curve, when approaching a hill crest, when traveling upon
any narrow or winding roadway and when special hazard exists with
respect to pedestrians or other traffic or by reason of weather or
highway conditions.
(d) The speed limit on controlled-access highways and
interstate highways, where no special hazard exists that requires
a lower speed, shall be not less than fifty-five miles per hour and
the speed limits specified in subsection (b) of this section do not
apply.
(e) The speed limit for any commercial motor vehicle engaged
in the transportation of coal with a gross vehicle weight of
twenty-six thousand pounds or more shall be five miles per hour
less than the speed limit applicable to other vehicles on that
road, highway or street.
(e) (f) Unless otherwise provided in this section, any person
who violates the provisions of this section is guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more
than one hundred dollars; upon a second conviction within one year
thereafter, shall be fined not more than two hundred dollars; and,
upon a third or subsequent conviction within two years thereafter,
shall be fined not more than five hundred dollars: Provided, That
if such third or subsequent conviction is based upon a violation of
the provisions of this section where the offender exceeded the speed limit by fifteen miles per hour or more, then upon
conviction, shall be fined not more than five hundred dollars or
confined in the county or regional jail for not more than six
months, or both.
(f) (g) Any person who violates the provisions of subdivision
(1), subsection (b) of this section is guilty of a misdemeanor and,
upon conviction thereof, shall be fined not less than one hundred
dollars nor more than five hundred dollars: Provided, That if such
conviction is based upon a violation of the provisions of
subdivision (1), subsection (b) of this section where the offender
exceeded the speed limit by fifteen miles per hour or more in the
presence of one or more children, then upon conviction, shall be
fined not less than one hundred dollars nor more than five hundred
dollars or confined in the regional or county jail for not more
than six months, or both.
(g) (h) If an owner or driver is arrested under the provisions
of this section for the offense of driving above the posted speed
limit on a controlled-access highway or interstate highway, and if
the evidence shall show that the motor vehicle was being operated
at ten miles per hour or less above said speed limit, then, upon
conviction thereof, such person shall be fined not more than five
dollars, plus court costs.
(i) Any person operating a commercial motor vehicle engaged in
the transportation of coal who violates subsection (e) of this section by exceeding the speed limit therein declared by ten miles
per hour or more shall, upon conviction, be fined not less than one
thousand dollars, plus court costs. Upon conviction for a second
and each subsequent offense, such fine shall be no less than two
thousand dollars, plus court costs.
(j) If an owner or driver is convicted under the provisions of
this section for the offense of driving above the speed limit on a
controlled-access highway or interstate highway of this state, and
if the evidence shall show shows that the motor vehicle was being
operated at ten miles per hour or less above said speed limit, then
notwithstanding the provisions of section four, article three,
chapter seventeen-b of this code, a certified abstract of the
judgment on such conviction shall not be transmitted to the
division of motor vehicles: Provided, That the provisions of this
subsection do not apply to conviction of owners or drivers who have
been issued a commercial driver's license as defined in chapter
seventeen-e of this code, if the offense was committed while
operating a commercial vehicle.
(h) (k) If an owner or driver is convicted in another state
for the offense of driving above the maximum speed limit on a
controlled-access highway or interstate highway, and if the maximum
speed limit in such other state is less than the maximum speed
limit for a comparable controlled-access highway or interstate
highway in this state, and if the evidence shall show that the motor vehicle was being operated at ten miles per hour or less
above what would be the maximum speed limit for a comparable
controlled-access highway or interstate highway in this state, then
notwithstanding the provisions of section four, article three,
chapter seventeen-b of this code, a certified abstract of the
judgment on such conviction shall not be transmitted to the
division of motor vehicles, or, if transmitted, shall not be
recorded by the division, unless within a reasonable time after
conviction, the person convicted has failed to pay all fines and
costs imposed by the other state: Provided, That the provisions of
this subsection do not apply to conviction of owners or drivers who
have been issued a commercial driver's license as defined in
chapter seventeen-e of this code, if the offense was committed
while operating a commercial vehicle.
§17C-6-10. Enforcement of article with respect to operations of
commercial motor vehicles.
In addition to enforcement by officers and other persons
authorized by law, designated employees of the public service
commission of West Virginia may enforce the provisions of this
article as they relate to the operation of commercial motor
vehicles.
ARTICLE 17. SIZE, WEIGHT AND LOAD.
§17C-17-10. Officers may weigh, measure, or examine vehicles and
require removal or rearrangement of excess loads.
(a) Any police officer or employee of the department of
highways or the public service commission designated by the
commissioner of highways as a member of an official weighing crew
may require the driver of any vehicle or combination of vehicles
located on or within one hundred feet of any public highway or
right-of-way, and whether moving or stopped, to stop and submit
such vehicle or combination of vehicles to a weighing with portable
or stationary weighing devices or submit such vehicle or
combination of vehicles to a measuring or to any other examination
necessary to determine if such vehicle or combination of vehicles
is in violation of any of the provisions of this article or article
seventeen-a, and may require that such vehicle or combination of
vehicles be driven to the nearest weighing device. but only if
such weighing device is within two miles of the place where the
vehicle or combination of vehicles is stopped
No police officer or member of an official weighing crew may
stop a vehicle or combination of vehicles may be submitted for
weighing unless a portable or stationary weighing device is
actually present at the location where, and at the time, the
vehicle or combination of vehicles is stopped or unless the vehicle
or combination of vehicles is escorted immediately after being
stopped to a the nearest portable or stationary weighing device.
In no case may a vehicle or combination of vehicles be detained
more than one hour from the time the same it is stopped for weighing unless the vehicle or combination of vehicles is impounded
for a another violation. in accordance with the provisions of
section fourteen of this article
(b) Whenever an officer or a member of an official weighing
crew determines that a vehicle or combination of vehicles is in
violation of any of the provisions of this article or article
seventeen-a, he or she may require the driver to stop such vehicle
or combination of vehicles in a suitable place and to remain
standing until such vehicle or combination of vehicles is brought
into conformity with the provisions violated.
In the case of a weight violation all material unloaded shall
be cared for by the owner, lessee or borrower of such vehicle or
combination of vehicles at the risk of such owner, lessee or
borrower: Provided, That no criminal charge shall be preferred
against any driver, operator or owner of a vehicle when a
rearrangement of the load upon the vehicle, without removal
therefrom, reduces the axle loads of said vehicle to such limit as
is permitted under this chapter.
(c) Any driver of a vehicle or combination of vehicles who
fails or refuses to comply with any requirement or provision of
this section shall be guilty of a misdemeanor, or in the case of
any vehicles engaged in the transportation of coal, subject to any
other additional penalties that may be applicable under the
provisions of article seventeen-a of this chapter.
§17C-17-11. Permits for excess size and weight.
(a) The commissioner of highways public service commission
may, in its his or her discretion, upon application in writing and
good cause being shown therefor issue a special permit in writing
authorizing: (1) The applicant, in crossing any highway of this
state, to operate or move a vehicle or combination of vehicles of
a size or weight or load exceeding the maximum specified in this
chapter or otherwise not in conformity with the provisions of this
chapter, whether the operation be continuous or not, provided the
applicant shall agree to compensate the commissioner of highways
for all damages or expenses incurred in connection with the
crossing; (2) the applicant to operate or move a vehicle or
combination of vehicles of a size or weight of vehicles or
nondivisible load exceeding the maximum specified in this chapter
or otherwise not in conformity with the provisions of this chapter;
and (3) the applicant to move or operate, for limited or continuous
operation, a vehicle hauling containerized cargo in a sealed,
seagoing container to or from a seaport or inland waterway port
that has or will be transported by marine shipment where the
vehicle is not, as a result of hauling the container, in conformity
with the provisions of this article relating to weight limitations,
upon the conditions that: (A) The container be hauled only on the
roadways and highways designated by the commissioner of highways;
(B) the contents of the container are not changed from the time it is loaded by the consignor or the consignor's agent to the time it
is delivered to the consignee or the consignee's agent; and (C) any
additional conditions as the commissioner of highways or the
public service commission may impose to otherwise ensure compliance
with the provisions of this chapter.
(b)(1) The commissioner of highways may issue a special permit
to operate or move a vehicle or combination of vehicles of a size
or weight of vehicles or nondivisible load exceeding the maximum
specified in this chapter or otherwise not in conformity with the
provisions of this chapter over routes designated by the
commissioner of highways upon such terms and restrictions as the
public service commission, together with the commissioner of
highways, may prescribe.
(2) For purposes of this section, nondivisible load means any
load exceeding applicable length or weight limits which, if
separated into smaller loads or vehicles, would: (A) Compromise
the intended use of the vehicle, to the extent that the separation
would make it unable to perform the function for which it was
intended; (B) destroy the value of the load or vehicle, to the
extent that the separation would make it unusable for its intended
purpose; or (C) require more than eight workhours to dismantle
using appropriate equipment: Provided, That the applicant for a
nondivisible load permit has the burden of proof as to the number
of workhours required to dismantle the load.
(c) The application for any permit other than a special annual
permit shall specifically describe the vehicle or vehicles and load
to be operated or moved along or across the highway and the
particular highway or crossing of the highway for which permit to
operate is requested, and whether the permit is requested for a
single trip or for a continuous operation.
(d) The commissioner of highways public service commission is
authorized to issue or withhold a permit at his or her discretion;
or, if the permit is issued, to limit the number of trips, or to
establish seasonal or other time limitations within which the
vehicles described may be operated on or across the highways
indicated, or otherwise to limit or prescribe conditions of
operation of the vehicle or vehicles, when necessary to assure
against undue damage to the road foundations, surface, or
structures, and may require the undertaking, bond or other security
as may be considered necessary to compensate for any injury to any
roadway structure and to specify the type, number and the location
for escort vehicles for any vehicle: Provided, That in
establishing limitations on permits issued under this section, the
public service commission shall consult with the commissioner of
highways, and may not issue, limit or condition a permit in a
manner inconsistent with the authority of the commissioner of
highways.
The commissioner public service commission may charge a fee not to exceed five dollars for the issuance of a permit for a
mobile home and a reasonable fee for the issuance of a permit for
any other vehicle under the provisions of this section to pay the
administrative costs thereof.
(e) Every permit shall be carried in the vehicle or
combination of vehicles to which it refers and shall be open to
inspection by any police officer or authorized agent of the
commissioner of highways or the public service commission, granting
the permit and no person shall violate any of the terms or
conditions of the special permit.
ARTICLE 17A. REGULATION OF THE COMMERCIAL TRANSPORTATION OF COAL.
§17C-17A-1. Legislative findings and creation of program.
(a) The Legislature finds and declares that:
(1) No other economic undertaking in the history of West
Virginia has had a greater impact upon the citizens of this state,
providing such an economic force and affecting the social construct
and day to day life and environment of the people and communities
of this state, than the activities associated with the extraction,
transportation and consumption of coal or its byproducts. In areas
of this state where the coal industry exists, the economic benefits
of coal production are an indispensable part of the local
community's vitality.
(2) The historic progression of the coal industry has resulted
in an increasing use of the public highways of this state for the transportation of coal to river ports, power generators or rail
loading facilities. Roads where coal is transported are mainly two
lane rural roads and highways of varying grades and conditions.
The daily presence of large commercial motor vehicles on these
roads and highways causes significant impact to local communities
and the local transportation infrastructure. Local residents are
exposed on a daily basis to the dangers associated with sharing the
road with a large number of these vehicles.
(3) The increased capacity of coal hauling vehicles, tied with
increased economic pressures to reduce industry transportation
costs, have created economic incentives for transporting coal at
higher than legal limits, and for drivers to drive long hours and
operate these vehicles at higher rates of speed. Consequently,
average vehicle weights have increased and many coal transport
vehicles regularly exceed the lawful limit by more than one hundred
percent. The excessive weights of these vehicles have also
resulted in the rapid deterioration of state roads and bridges,
creating significant costs to the state of millions of dollars in
lost road and bridge use and life.
(4) Advances in technology have made tracking and recording
individual vehicles, their operators and load significantly more
efficient.
(5) Enforcement of truck safety and driver safety laws has
been divided between various jurisdictions such as local and state law enforcement, division of highways, and the public service
commission. As a result, local and state enforcement of those
comprehensive laws has not been uniform, with the result that many
of these laws have not been enforced.
(6) The current condition of the state's coal transportation
system requires that a comprehensive regulatory enforcement program
be established; that this program include special safety
protections for the public that shares the roads with the large
coal hauling vehicle fleet of this state; that the program be
designed to assure that state weight and safety requirements be
effectively enforced to provide protections for the public sharing
these roadways.
(b) A special centralized regulatory program with
administrative enforcement authority over all vehicles hauling coal
in West Virginia is hereby created. This program is designed to
address the economic needs of the coal industry within the confines
of the ability of the transportation infrastructure to accommodate
these needs and in careful consideration for road safety.
§17C-17A-2. Definitions.
For purposes of this article:
(a) "Coal" or coal by-products means the mineral in raw or
clean state, and includes such synthetic fuel manufactured or
produced for which credit is allowable under 26 U.S.C. §29 of the
Internal Revenue Code (1996).
(b) "Commission" means the public service commission of West
Virginia.
(c) "Division" means the division of highways within the
department of transportation.
(d) "Mining operation" means any activity related to
extraction of coal regulated under the provisions of this code.
(e) "Operator" means the person driving a commercial motor
vehicle transporting coal on any public highway of this state.
(f) "Person" means any individual, partnership, firm, society,
association, trust, corporation, other business entity or any
agency, unit or instrumentality of federal, state or local
government.
(g) "Shipper" means the person who loads coal or causes coal
to be loaded into any commercial motor vehicle that will operate on
any public highway in this state.
(h) "Receiver" means the person who accepts for unloading coal
from any vehicle that has operated on any public highway in this
state.
(i) "Vehicle owner" means the person who as owner of a
commercial motor vehicle employs, contracts or otherwise directs a
driver to operate that vehicle on a public highway of this state
for the purpose of transporting coal.
§17C-17A-3. Authority of the division of highways and public
service commission generally.
(a) The commission may, during normal business hours, conduct
inspections of all trucking related records of shippers, vehicle
operators, vehicle owners and receivers engaged in the
transportation of coal. This provision may not be construed to
authorize the commission to reveal trade secrets or other
confidential financial information of those persons inspected;
however the commission may use any weight measurement records as
evidence of a violation of this article.
(b) The commission shall implement a study of commercial
vehicle safety related issues, including utilizing higher education
institutions and other research organizations.
(c) The commission shall establish procedures to utilize
electronic real time reporting of coal vehicle weights by shippers
and receivers. The commission may require daily certified reports
from shipper or receiver if electronic reporting methods are not
used. The commission may authorize alternative measures of
reporting that require same day reporting of weight measurements by
shippers and receivers.
(d) Notwithstanding the provisions of section three, article
one, chapter twenty-nine-a of this code, both the commission and
the division shall propose legislative rules for promulgation in
accordance with the provisions of article three, chapter
twenty-nine-a of this code to carry out and implement the
provisions of this article.
§17C-17A-4. Coal truck operation requirements.
(a) Notwithstanding the provisions of section three, article
one, chapter twenty-nine-a, the commission shall promulgate
emergency and legislative rules to effectuate purposes of this
section, which shall provide, at a minimum, the following:
(1) Twenty-four hours mandatory specialized training
requirements for commercial vehicles operators with less than two
years of commercial driving experience;
(2) Requirements for random drug and alcohol testing;
(3) Requirements for daily records consistent with the
provisions of any applicable federal statutory or regulatory
requirements.
§17C-17A-5. Operation of coal trucks; authorizing commission to
promulgate rules.
(a) For purposes of this section, the dimensional requirements
of motor vehicles shall conform to all applicable federal laws and
regulations. Nothing in this section may be construed or
administered so as to jeopardize the receipt of federal funds for
highway purposes.
(b) Any vehicle or combination of vehicles transporting coal
pursuant to the provisions of this article shall be securely
covered to prevent the escape of the load on any trip exceeding a
total distance of one mile on any public highway.
(c) The commission shall propose rules in accordance with the provisions of article three, chapter twenty-nine-a of this code
regarding the implementation of the requirements of this section.
The rules shall be initially promulgated as emergency rules
pursuant to the provisions of article three, chapter twenty-nine-a
of this code by no later than the first day of July, two thousand
three.
§17C-17A-6. Reporting requirements for shippers, vehicle owners
and receivers of coal transported on public
highways.
(a) Every shipper of coal for transport on a public highway in
this state must report to the commission weight and other transport
related data as required by the commission. The commission shall
by rule establish special recording and reporting methods for
timely and accurate disclosure of all shipments of coal made by a
vehicle upon a public highway of this state.
(b) Every vehicle owner who transports coal on a public
highway of this state is subject to the provisions of this article
and any rules established by the commission requiring reporting,
monitoring or removal from service any unsafe vehicle or driver.
(c) Every receiver of coal transported on a public highway in
this state that unloads coal or causes it to be unloaded must
report the weight of any vehicle delivering the coal.
(d) The commission shall by rule establish special recording
and reporting methods for timely and accurate disclosure of all shipments of coal made by commercial motor vehicles upon a public
highway of this state. The commission shall by rule establish a
schedule to assess a fee on shippers and receivers of coal based
on the method used to report weight-shipping records.
§17C-17A-7. Powers and duties of the commission; rules and rule
making.
In addition to all other powers, duties, responsibilities and
authority granted and assigned to the commission in this code and
elsewhere prescribed by law, notwithstanding any provision of the
code to the contrary, the commission:
(1) The commission or any authorized representative, employee
or agent may, at reasonable times, enter onto any coal shipping or
receiving facility for the purpose of making an inspection or
investigation;
(2) The commission may also perform or require a person, by
order, to perform any and all acts necessary to carry out the
provisions of this article or the rules promulgated thereunder;
(3) The commission, its authorized representative, employee
or agent shall make periodic inspections at coal shipping or
receiving facilities to effectively implement and enforce the
requirements of this article or its rules and may conduct at weigh
stations or any other adequate site or facility inspections of coal
in transit.
§17C-17A-8. Administrative sanctions.
(a) It is the intent of the Legislature to impose
administrative sanctions in addition to any criminal or civil
penalties upon any person violating or assisting in the violation
of the provisions of this article.
(b) After providing notice and an opportunity to show cause
why penalties should not be imposed for the violation of provisions
of this article, the commission may impose sanctions upon an
operator, shipper, receiver or truck owner when a violation is
found to have occurred. Lack of intent is not a defense to a
violation except as it applies to receivers.
(c) Administrative sanctions for violations may be imposed as
follows:
(1) It is unlawful for any person to operate a commercial
motor vehicle engaged in the transportation of coal with a gross
vehicle weight in excess of the lawful maximum weight on a public
highway. Any person violating this subsection shall have his or
her driver's license suspended by the commissioner of the division
of motor vehicles for a period of ninety days for the first
offense, six months for the second offense, and one year for the
third offense.
(2) Any shipper or receiver that ships or receives an
overweight coal load transported by a vehicle in violation of the
law shall have its state-issued business license suspended by the
commissioner of the state tax division for a period of ninety days for the first offense, six months for the second offense, and
revoked for the third offense.
(3) Any person who aids or abets another person's attempt to
avoid suspension shall have his or her driver's license suspended
by the commissioner of the division of motor vehicles for a period
of sixty days for the first offense, one hundred twenty days for
the second offense, and six months for the third offense.
(4) Any person that aids or abets a person's attempt to avoid
suspension shall have its state-issued business license suspended
by the commissioner of the state tax division for a period of three
months for the first offense, six months for the second offense,
and one year for the third offense.
(d) Administrative sanctions may be imposed pursuant to the
following procedures:
(1) No administrative sanction may be imposed until after the
person has been notified by certified mail or personal service.
The notice shall include: A reference to the section of statute,
rule, order or permit violated; a concise statement of the facts
alleged to constitute a violation; a statement of the
administrative penalties to be imposed; and a statement of the
person's right to a hearing. The person shall have twenty days
from receipt of the notice within which to deliver to the
commission a written request for a hearing.
(2) Subsequent to the hearing and upon finding that a violation has occurred, the commission shall issue a final order.
If no hearing is requested, the notice shall become a final order
upon the expiration of the twenty-day period.
(3) The authority to levy an administrative sanction is in
addition to all other sanctions provided by law, and the imposition
of any civil or criminal penalty may not affect the availability
of any other enforcement provision in connection with the
violation.
(4) In addition to the imposition of an administrative
sanction, the commission may, by administrative order and upon an
appropriate finding, assess a violator for the reasonable costs of
any investigation, inspection, or monitoring survey which led to
the establishment of the violation.
§17C-17A-9. Penalties for violation of weight laws; impounding
vehicles.
(a) Any owner, lessee or borrower of a commercial motor
vehicle or combination of vehicles transporting coal who operates
or permits to be operated on any highway such vehicle or
combination of vehicles with a total gross weight with load imposed
upon the highway in excess of that permitted by law, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined in
proportion to the number of pounds in excess of the registered
weight, in accordance with the following schedule.
Excess WeightAmount of Fine
1 to 4,000 pounds1 cent per overweight pound
4,001 to 8,000 pounds3 cents per overweight pound
8,001 to 12,000 pounds7 cents per overweight pound
12,001 to 16,000 pounds10 cents per overweight pound
16,001 to 20,000 pounds15 cents per overweight pound
20,001 to 40,000 pounds30 cents per overweight pound
40,001 pounds or more45 cents per overweight pound
(b) Upon a second or subsequent conviction within two years
thereafter, the owner, lessee or borrower shall be fined according
to the following schedule:
Excess WeightAmount of Fine
4,001 to 8,000 pounds5 cents per overweight pound
8,001 to 12,000 pounds10 cents per overweight pound
12,001 to 16,000 pounds15 cents per overweight pound
16,001 to 20,000 pounds20 cents per overweight pound
20,001 to 40,000 pounds40 cents per overweight pound
40,001 pounds or more80 cents per overweight pound
(c) The fines specified in subsections (a) and (b) of this
section are mandatory and may not be waived or reduced by any
judicial officer.
(d) In the event any owner, lessee or borrower of a vehicle
is charged with violating this section, the vehicle charged to have
been overloaded shall be impounded by the arresting officer. The vehicle shall not be released to the alleged offender or the owner
unless and until he or she either has: (1) Been acquitted of the
charge; (2) been found guilty of the charge and paid any fine
assessed under subsection (a) or (b); or (3) furnished cash or
surety bond in at least double the amount of the fine which may be
assessed the offender under subsection (a) or (b) conditioned upon
the payment of any fine and costs assessed for such violation. The
offender is liable for any reasonable storage costs incurred in
storing impounded vehicles: Provided, That if the owner of the
vehicle is a resident of or has a principal place of business
located in this state, and the vehicle has been duly licensed in
the state, then the vehicle may not be impounded by the arresting
officer who shall deliver to the operator a written notice of the
violation; place, date and time of violation; the license number
of the vehicle; the title number and name and address of the owner;
the driver's name, address, and the number of his or her commercial
driver's license; and the court, place, date and time for hearing,
which shall be within ten business days of the violation. A copy
of the notice shall be mailed to the owner of the vehicle within
two business days. If the owner or his, her or its agent fails to
appear at the designated place and time or, if convicted, fails to
pay the fine and costs assessed for the violation, the court shall
order the owner to post a bond or the impounding of the vehicle as
provided in this section.
(e) Any shipper or receiver who directs or knowingly permits
a commercial motor vehicle to be loaded in excess of a lawful
weight is also guilty of a misdemeanor and, upon conviction, shall
be fined equal to that amount which may be imposed on the owner,
lessee or borrower of a commercial motor vehicle under subsection
(a) of this section.
(f) The penalties and fees specified in this section shall be
in addition to any other liability that may be legally fixed
against the owner, operator or other person charged with a weight
violation.
§17C-17A-10. "Spotting" unlawful; penalties.
It is unlawful for any person to intentionally assist an owner
or operator of a commercial motor vehicle engaged in the
transportation of coal to avoid a road, safety or other lawful
inspection or enforcement activity by any law- or
weight-enforcement officer through electronic communications or
other means intended to give the commercial vehicle driver
knowledge of the location of such officers. Any person who
violates this section is guilty of a misdemeanor and shall, upon
conviction, be fined not less than one thousand dollars and, upon
a second or subsequent conviction, fined not less than two thousand
dollars.
ARTICLE 17B. TRANSFER OF CERTAIN JURISDICTION AND EMPLOYEES TO
PUBLIC SERVICE COMMISSION.
§17C-17B-1. Legislative findings and purposes.
(a) The Legislature finds that:
(1) Enforcement officers of the public service commission of
West Virginia are, as part of their enforcement of chapters
twenty-four and twenty-four-a of this code with respect to common
and contract carriers by motor vehicle, other for-hire carriers,
and private commercial carriers, currently inspecting for safety
many of the same vehicles and loads that are inspected for size and
weight by employees of the department of transportation;
(2) To effectuate the legislative findings and declarations
set forth in section one, article one, chapter five-f of this code,
the jurisdiction over the administration and enforcement of state
statutes and rules relating to vehicular weight and the
jurisdiction over the issuance of permits for excess vehicular
weight should be transferred to the public service commission;
(3) To preserve continuity and to maximize efficiency, those
employees of the department of transportation who are employed
primarily in the performance of the governmental duties described
in this section should be transferred to the public service
commission;
(4) The enforcement of state statutes and rules relating to
coal truck weight, including costs of inspections of such vehicles
and loads, training of enforcement officers, program oversight,
administrative proceedings, personal services, employee benefits and all other costs associated with enforcement matters, falls
within the scope of maintenance of state roads and public highways
as described in section fifty-two, article six of the constitution
of this state and in section one, article three, chapter seventeen
of this code; and
(5) Revenues in the state road fund, established pursuant to
the provisions of section one, article three, chapter seventeen of
this code shall be used to fund costs relating to enforcing the
provisions of this article.
(b) The purposes of this article are:
(1) To transfer jurisdiction over the enforcement of state
statutes and rules, including, but not limited to, the provisions
of article seventeen-a of this chapter, relating to coal truck
weight, from the commissioner of highways, division of highways,
and department of transportation to the public service commission
of West Virginia;
(2) To transfer jurisdiction over the issuance of permits for
excess vehicular weight under section eleven, article seventeen of
this chapter, from the commissioner of highways, division of
highways, and department of transportation to the public service
commission of West Virginia; and
(3) To transfer to the public service commission of West
Virginia those employees of the division of highways and department
of transportation whose primary governmental duties include the administration and enforcement of statutes and rules relating to
vehicular weight.
§17C-17B-2. Transfer of jurisdiction over vehicle weight
enforcement and excess weight permit issuances to
public service commission.
(a) Effective the first day of July, two thousand three, the
jurisdiction over the enforcement of state statutes and rules,
including, but not limited to, applicable provisions of article
seventeen of this chapter, relating to vehicular weight, shall be
transferred from the commissioner of highways, division of
highways, and department of transportation to the public service
commission of West Virginia.
(b) Effective the first day of July, two thousand three, the
jurisdiction over the issuance of permits for excess vehicular
weight shall be transferred from the commissioner of highways,
division of highways, and department of transportation to the
public service commission of West Virginia.
§17C-17B-3. Transfer of certain employees from department of
transportation to public service commission.
(a) Effective the first day of July, two thousand three,
employees of the division of highways, department of transportation
whose primary governmental duties as of the thirty-first day of
December, two thousand two, included the administration and
enforcement of state statutes and rules relating to vehicular weight or the issuance of permits for excess vehicular weight shall
be transferred from the division of highways and department of
transportation to the public service commission of West Virginia.
(b) Upon the transfer of employees as provided in subsection
(a) of this section, the division of highways of the department of
transportation shall pay to the public service commission the costs
of personal services, employees benefits and other associated costs
of the transferred employees. The funds necessary to effectuate
the purposes of this section shall be transferred from the state
road fund to the public service commission motor carrier fund.
§17C-17B-4. Costs of enforcement to be funded from revenues in
state road fund.
(a) On and after the first day of July, two thousand three,
costs of enforcement of state statutes and rules relating to
vehicular weight, including inspections of vehicles and loads,
training of enforcement officers, administrative proceedings,
personal services, employee benefits and all other costs associated
with enforcement matters, shall be funded by revenues in the state
road fund, established pursuant to the provisions of section one,
article three, chapter seventeen of this code.
(b) The commissioner of highways and the treasurer shall take
all actions necessary to implement the transfer of funding to
effectuate the purposes of this article.
§17C-17B-5. Exceptions.
(a) Nothing in this article may be construed to reduce or
eliminate the authority of any police officer to enforce the
provisions of article seventeen of this chapter.
(b) Nothing in this article may be construed to reduce or
eliminate the jurisdiction of the commissioner of highways,
division of highways, or department of transportation to administer
and enforce sections eleven-a, eleven-b, eleven-c and twelve,
article seventeen of this chapter.
(c) Nothing in this article may be construed to expand,
reduce, or eliminate any remedies otherwise available by law.
CHAPTER 17E. UNIFORM COMMERCIAL DRIVER'S LICENSE ACT.
ARTICLE 1. COMMERCIAL DRIVER'S LICENSE.
§17E-1-3. Definitions.
Notwithstanding any other provision of this code, the
following definitions apply to this article:
"Alcohol" means:
(a) Any substance containing any form of alcohol, including,
but not limited to, ethanol, methanol, propanol and isopropanol;
(b) Beer, ale, port or stout and other similar fermented
beverages (including sake or similar products) of any name or
description containing one half of one percent or more of alcohol
by volume, brewed or produced from malt, wholly or in part, or from
any substitute therefor;
(c) Distilled spirits or that substance known as ethyl alcohol, ethanol, or spirits of wine in any form (including all
dilutions and mixtures thereof from whatever source or by whatever
process produced); or
(d) Wine of not less than one half of one percent of alcohol
by volume.
"Alcohol concentration" means:
(a) The number of grams of alcohol per one hundred milliliters
of blood; or
(b) The number of grams of alcohol per two hundred ten liters
of breath; or
(c) The number of grams of alcohol per sixty-seven milliliters
of urine.
"Commercial driver license" means a license issued in
accordance with the requirements of this article to an individual
which authorizes the individual to drive a class of commercial
motor vehicle.
"Commercial driver license information system" is the
information system established pursuant to the federal commercial
motor vehicle safety act to serve as a clearinghouse for locating
information related to the licensing and identification of
commercial motor vehicle drivers.
"Commercial driver instruction permit" means a permit issued
pursuant to subsection (d), section nine of this article.
"Commercial motor vehicle" means a motor vehicle designed or used to transport passengers or property:
(a) If the vehicle has a gross vehicle weight rating as
determined by federal regulation;
(b) If the vehicle is designed to transport sixteen or more
passengers, including the driver; or
(c) If the vehicle is transporting hazardous materials and is
required to be placarded in accordance with 49 C.F.R. part 172,
subpart F.
"Commissioner" means the commissioner of motor vehicles of
this state.
"Controlled substance" means any substance so classified under
the provisions of chapter sixty-a of this code (uniform controlled
substances act) and includes all substances listed on Schedules I
through V, article two of said chapter sixty-a, as they may be
revised from time to time.
"Conviction" means the final judgment in a judicial or
administrative proceeding or a verdict or finding of guilty, a plea
of guilty, a plea of nolo contendere or a forfeiture of bond or
collateral upon a charge of a disqualifying offense, as a result of
proceedings upon any violation of the requirement of this article.
"Division" means the division of motor vehicles.
"Disqualification" means a prohibition against driving a
commercial motor vehicle.
"Drive" means to drive, operate or be in physical control of a motor vehicle in any place open to the general public for
purposes of vehicular traffic. For purposes of sections twelve,
thirteen and fourteen of this article "drive" includes operation or
physical control of a motor vehicle anywhere in this state.
"Driver" means any person who drives, operates or is in
physical control of a commercial motor vehicle, in any place open
to the general public for purposes of vehicular traffic, or who is
required to hold a commercial driver license.
"Driver license" means a license issued by a state to an
individual which authorizes the individual to drive a motor vehicle
of a specific class.
"Employee" means a person who is employed by an employer to
drive a commercial motor vehicle, including independent
contractors. An employee who is self employed as a commercial
motor vehicle driver must comply with both the requirements of this
article pertaining to both employees and employers.
"Employer" means any person, including the United States, a
state, or a political subdivision of a state, who owns or leases a
commercial motor vehicle, or assigns a person to drive a commercial
motor vehicle.
"Farm vehicle" includes a motor vehicle or combination vehicle
registered to the farm owner or entity operating the farm and used
exclusively in the transportation of agricultural or horticultural
products, livestock, poultry and dairy products from the farm or orchard on which they are raised or produced to markets, processing
plants, packing houses, canneries, railway shipping points and cold
storage plants and in the transportation of agricultural or
horticultural supplies and machinery to such farms or orchards to
be used thereon.
"Farmer" includes owner, tenant, lessee, occupant or person in
control of the premises used substantially for agricultural or
horticultural pursuits, who is at least eighteen years of age with
two years licensed driving experience.
"Farmer vehicle driver" means the person employed and
designated by the "farmer" to drive a "farm vehicle" as long as
driving is not his sole or principal function on the farm, who is
at least eighteen years of age with two years licensed driving
experience.
"Gross combination weight rating (GCWR)" means the value
specified by the manufacturer as the loaded weight of a combination
(articulated) vehicle. In the absence of a value specified by the
manufacturer, GCWR will be determined by adding the GVWR of the
power unit and the total weight of the towed unit and any load
thereon.
"Gross vehicle weight rating (GVWR)" means the value specified
by the manufacturer as the loaded weight of a single vehicle. In
the absence of a value specified by the manufacturer the GVWR will
be determined by the total weight of the vehicle and any load thereon.
"Hazardous materials" has the meaning as that found in the
Hazardous Materials Transportation Act (
§
49 U.S.C. 5101 et seq.
(1998)).
"Motor vehicle" means every vehicle which is self-propelled,
and every vehicle which is propelled by electric power obtained
from overhead trolley wires but not operated upon rails.
"Out-of-service order" means a temporary prohibition against
driving a commercial motor vehicle as a result of a determination
by a federal agency or the public service commission, pursuant to
chapter twenty-four-a of this code, that: (a) The continued use of
a commercial motor vehicle may result in death, serious injury or
severe personal injury; or (b) the continued actions by the driver
of a commercial motor vehicle poses an imminent hazard to public
safety.
"Violation of an out-of-service order" means: (a) The
operation of a commercial motor vehicle during the period the
driver was placed out of service; or (b) the operation of a
commercial motor vehicle by a driver after the vehicle was placed
out of service and before the required repairs are made.
"Serious traffic violation" means:
(a) Excessive speeding defined as fifteen miles per hour in
excess of all posted limits;
(b) Reckless driving as defined in section three, article five, chapter seventeen-c of this code including erratic lane
changes and following the vehicle ahead too closely;
(c) A violation of state or local law relating to motor
vehicle traffic control (other than a parking violation) arising in
connection with a fatal traffic accident. Vehicle weight and
vehicle defects are excluded as serious traffic violations; or
(d) Any other serious violations as may be determined by the
U.S. United States Secretary of Transportation.
"State" means a state of the United States and the District of
Columbia.
"Tank vehicle" means any commercial motor vehicle that is
designed to transport any liquid or gaseous materials within a tank
that is either permanently or temporarily attached to the vehicle
or the chassis. Such vehicles include, but are not limited to,
cargo tanks and portable tanks, as defined in 49 C.F.R. Part 171
(1998). However, this definition does not include portable tanks
having a rated capacity under one thousand gallons.
"At fault traffic accident" means for the purposes of waiving
the road test, a determination, by the official filing the accident
report, of fault as evidenced by an indication of contributing
circumstances in the accident report.
CHAPTER 24A. COMMERCIAL MOTOR CARRIERS.
ARTICLE 1A. COMMERCIAL VEHICLE REGULATION.
§24A-1A-1. Regulation of commercial vehicle weights.
(a) Effective the first day of July, two thousand three, the
commission has jurisdiction over the enforcement of state statutes
and rules, including, but not limited to, applicable provisions of
articles seventeen and seventeen-a, chapter seventeen-c of this
code, relating to vehicular weight.
(b) Effective the first day of July, two thousand three, the
commission has jurisdiction over the issuance of permits for excess
vehicular weight.
(c) Effective the first day of July, two thousand three,
employees of the division of highways, department of
transportation, whose primary governmental duties as of the
thirty-first day of December, two thousand two, included the
administration and enforcement of state statutes and rules relating
to vehicular weight or the issuance of permits for excess vehicular
weight shall be transferred from the division of highways and
department of transportation to the commission.
(d) The commission shall implement and administer the
provisions of this section, and of articles six, six-a and six-b of
this chapter.
NOTE: The purpose of this bill is to provide for enhanced
weight enforcement and other regulatory provisions for coal trucks.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
§17C-6-10; §§17C-17A and 17B; and §24A-1A are new; therefore,
strike-throughs and underscoring have been omitted.