COMMITTEE SUBSTITUTE
FOR
H. B. 4105
(By Delegates Kuhn, Manuel, Seacrist,
Tillis, Pettit, Linch and Willison)
(Originating in the Committee on Government Organization)
[February 24, 1998]
A BILL to amend chapter twenty-one of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article three-d, relating
to the certification of crane operators; providing
definitions; identifying the commencement date;
distinguishing who is required to be certified; authorizing
the commissioner of the division of labor to propose rules;
providing that rules include the certification process,
categories and renewal requirements; setting forth
additional duties of the commissioner; authorizing the
minimum certification requirements; permitting the
commissioner to deny, suspend, revoke or reinstate
certification in certain instances; requiring certified
crane operators to carry proof of certification while
operating a crane; allowing application for certification
after revocation; requiring due process procedures be
followed prior to revocation, suspension or other disciplinary action; providing for fines and criminal
penalties upon conviction of operating a crane without
certification; providing for fines and criminal penalties
upon conviction of knowingly and intentionally operating a
crane under the influence of certain substances; providing
for fines and criminal penalties upon conviction of
employing, permitting or directing certain crane operators;
establishing a crane operator certification fund and
providing procedures therefor; and, authorizing reciprocity.
Be it enacted by the Legislature of West Virginia:
That chapter twenty-one of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article three-d, 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 include a forklift, digger derrick truck, bucket
truck or any vehicle 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.
§21-3D-2. Certification required; exemptions.
(a) Commencing with the first day of January, two thousand
and notwithstanding the provisions contained in subsection (b) of
this section, a person may not operate a crane with a lifting
capacity of five tons or more without certification issued under
this article.
(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 the first day of July, one thousand nine
hundred ninety-eight, which rules at the minimum shall include
provisions for:
(1) Certification of individuals who operate cranes in the
state of West Virginia, which certification process shall include
a written examination and a practical demonstration, and shall
utilize standards no less restrictive than those prescribed by
the american society of mechanical engineers/american national
standards institute safety code as of the effective date of this
article: Provided, That the rule governing the practical
examination shall be a separate rule and shall provide for the
implementation of the practical examination on or before the
first day of January, two thousand one.
(2) Certification categories that shall include 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;
(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 shall include a written examination
and a current physician's certificate at least every five years;
(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 fees in an amount not to exceed the
actual cost of the examination.
(e) Administer or cause to be administered the written
examination and practical demonstrations as required for
certification.
(f) Determine the standards for acceptable performance on
the written examination and practical demonstration: Provided,
That the minimum standards shall be consistent with national
standards and transferable to other states where possible.
(g) If requested by an individual who fails an examination,
provide the person a written analysis of the person's performance
on the examination.
(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;
(4) Passes the practical demonstration: Provided, 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 is entitled to certification
without a practical demonstration under this article if the
person applies for certification no later than the first day of
January, two thousand, 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 and examination 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.
§21-3D-5. Denial, suspension, revocation, or reinstatement of
certification.
(a) The commissioner may deny, suspend, revoke or reinstate
certification.
(b) A violation of this article or rule adopted pursuant to
this article is grounds for the denial, suspension, revocation or
refusal to reinstate certification and permits the imposition of
disciplinary action: Provided, That no disciplinary action against a crane operator may be imposed without a proper prior
notice as served under section one, article two, chapter fifty- six of this code, and an opportunity for hearing held before the
commissioner or his designee wherein the crane operator will be
provided the opportunity to present evidence in person, by
counsel or both and after which, if the commissioner finds a
violation of this article has occurred, the commissioner may
impose any disciplinary action permitted in this article:
Provided, however, That the provisions of subsection (e) of
section seven of this article have not been met.
(c) Operation of a crane in violation of this article or
other provision of this code may result in the suspension of
certification for not less than twenty-four hours nor more than
one year, or revocation of certification until reinstated.
(d) Each certified crane operator shall carry proof of
certification on his or her person during operation of a crane.
(e) A person whose certification has been revoked may apply
for certification one year after the date of the revocation.
§21-3D-6. Effect of accident.
(a) The commissioner may suspend or revoke the certification
of a person involved in an accident relating to the operation of
a crane by that person: Provided, That no disciplinary action
against a crane operator may be imposed without a proper prior
notice as served under section one, article two, chapter fifty- six of this code, and hearing held before the commissioner or his
or her designee wherein the crane operator will be provided the opportunity to present evidence in person, by counsel or both and
after which, the commissioner finds a violation of this article
has occurred, the commissioner may impose any disciplinary action
permitted in this article: Provided, however, That the provisions
of subsection (e) of section seven of this article have not been
met.
(b) If the commissioner makes a finding that the accident
was caused by the actions or omissions of the certificate holder,
the commissioner may require the certificate holder to retake and
pass the certification examination and/or demonstration before
the certificate holder may apply to have the certification
reinstated.
§21-3D-7. Penalties.
(a) A person required to obtain certification under this
article, who operates a crane without certification, is guilty of
a misdemeanor and, upon conviction thereof, shall be fined not
less than fifty dollars nor more than five hundred dollars for
each violation.
(b) No person may knowingly or intentionally drive or
operate a 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 one hundred dollars nor more than one thousand dollars. 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 without proper certification is guilty
of a misdemeanor and, upon conviction thereof, shall be fined not
less than one hundred dollars nor more than one thousand dollars
for each violation.
(d) A person, operating a 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 fifty dollars nor more than one hundred dollars.
(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 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 not apply if an
order reinstating the 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 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) 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) 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 the thirtieth day of June, 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.
§21-3D-9. Reciprocity.
To the extent that other states provide for the
certification of crane operators for similar action, the
commissioner, in his or her discretion, may grant certification
of the same or equivalent classification to persons certified by
other states, without examination upon satisfactory proof
furnished to the commissioner that the qualifications for the
applicants are equal to the qualifications of the holders of
similar certification in this state, and upon payment of the
required application fee.
NOTE: The purpose of this bill is to require certain
persons who operate cranes to be tested and certified by the West
Virginia Division of Labor.
This article is new; therefore, strike-throughs and
underscoring have been omitted.