COMMITTEE SUBSTITUTE
FOR
H. B. 3076
(By Delegates Martin, Walker, Butcher, D. Poling,
M. Poling, Boggs, Perry, Caputo, Hamilton and Ellem)
(Originating in the House Committee on the Judiciary)
[March 25, 2009]
A BILL to amend and reenact §21-3D-1, §21-3D-2, §21-3D-3, §21-3D-4,
and §21-3D-7 of the Code of West Virginia, 1931, as amended
all relating to the regulation and operation of cranes;
establishing certification renewal requirements; and adding
tower cranes to the penalty section.
Be it enacted by the Legislature of West Virginia:
That §21-3D-1, §21-3D-2, §21-3D-3, §21-3D-4, and §21-3D-7 of
the Code of West Virginia, 1931, as amended, be amended and
reenacted, 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 fixed cab-
telescoping boom cranes; swing cab-telescoping boom cranes; and
tower cranes. Provided, That the holders of a certification for the
large telescoping boom crane upon application for recertification
will be provided with a one time election to either be certified as
an operator of a fixed-cab or swing-cab telescoping boom crane, and
that holders of a certification for the small telescoping boom
crane, upon application for recertification, will be automatically
certified as a fixed cab operator.
(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-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.