H. B. 4529


(By Delegates Kominar and Frederick)

[Introduced February 18, 2002; referred to the

Committee on the Judiciary then Finance.]
A BILL to amend chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article seventeen-a, relating to creating the special permits system allowing for transportation of natural resources and natural resources byproducts at weights in excess of certain maximum gross weights; prescribing the criteria for issuance of special permits and conditions thereon; providing that the secretary of the department of transportation determine the permit system; requiring decals indicating use of system; prescribing decal fees; prescribing requirements for requests for decals and prorating fees; providing for impoundment of vehicles operated in violation of the weight limits prescribed herein; providing for criminal penalties for owners, lessees and borrowers of vehicles and civil administrative penalties for producers, shippers, purchasers and consignees of any product shipped and providing for reduction of weight and speed limits by the secretary of the department of transportation; providing the secretary of the department of transportation authority to promulgate rules relating to special permits, inspections, and the assessment of administrative penalties; providing for the concurrent jurisdiction of magistrates and the disposition of civil administrative penalties.

Be it enacted by the Legislature of West Virginia:
That chapter seventeen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article seventeen-a, to read as follows:
ARTICLE 17A. SPECIAL PERMITS FOR TRANSPORTATION OF NATURAL RESOURCE AND NATURAL RESOURCE BYPRODUCTS.

§17C-17A-1. Operation of vehicles under special permits; weight limitations; payment of decal fees.

(a) Any vehicle, when transporting natural resource or natural resource byproducts over public highways, may be operated at the weights as set forth herein in excess of the maximum gross weight prescribed in section nine, article seventeen, chapter seventeen-c of this code and any other maximum weight limitations on any public highway by paying the corresponding special permit fee and otherwise complying with the provisions of this article as set forth below.
(b) For purposes of this article, the following definitions shall apply:
(1) "Natural resources" means water, dirt, sand, gravel, stone, coal, oil, natural gas, timber, salt, crops or any other mineral or material directly obtained, mined, cut or otherwise derived from the land and transported in its natural form; and
(2) "Natural resources products" or "natural resources byproducts" means materials derived from a natural resource or in which natural resources are used as a substantial component, including, but not limited to, synthetic fuel manufactured from coal, ready-mixed concrete, asphalt, petroleum products, block, coke, ash, stone and limestone aggregates.
(c) Special permits shall be issued subject to the following requirements:
(1) A single unit truck having one steering axle and two axles in tandem shall be limited to a maximum gross weight of thirty- eight tons with a tolerance of five percent and pay a special permit fee annually of one hundred sixty dollars;
(2) A single unit truck having one steering axle and three axles in tridem arrangement shall be limited to a maximum gross weight of forty-five and one-half tons with a tolerance of five percent and pay a special permit fee annually of two hundred sixty dollars;
(3) A tractor-semitrailer combination with five axles shall be limited to a maximum gross weight of fifty-three tons with a tolerance of five percent and pay a special permit fee annually of three hundred dollars;
(4) A tractor-semitrailer combination with six or more axles shall be limited to a maximum gross weight of sixty-six tons with a tolerance of five percent and pay a special permit fee annually of five hundred dollars.
(d) In order to qualify for issuance of a special permit, the applicant therefor must provide information which shows that the vehicle, as configured, has a total combined axle rating capacity equal to or greater than the maximum amount of weight for which a special permit is sought. The information may include, but not be limited to, manufacturer rated capacity. In the event that manufacturer rated capacity is not available, such other information as reasonably determined by the secretary of the department of transportation to give evidence of adequate combined axle rating capacity may be submitted.
(e) Special permits authorized by this section shall be issued by the division of motor vehicles. Application for special permits shall be made on forms prescribed and furnished by the division of motor vehicles. The special permit shall be permanently affixed immediately below the window glass on the top of the door on the driver?s side of the vehicle. Lost, destroyed, stolen or otherwise unusable special permits shall be replaced in accordance with regulations to be promulgated by the secretary of the department of transportation. The special permit shall be issued to a particular vehicle and shall remain with the vehicle upon transfer of possession or ownership of such vehicle.
(f) Special permits issued pursuant to this section shall be valid from the date of purchase until the thirty-first day of March of the year for which the permit is issued: Provided, That the special permit fee shall be prorated, if necessary, pursuant to rules to be promulgated by the secretary of the department of transportation.
(g) For purposes of this section, the dimensional requirements of motor vehicles shall conform to all applicable federal laws and regulations. Nothing in this section shall be construed or administered so as to jeopardize the receipt of federal funds for highway purposes.
(h) Any vehicle operated with a special permit issued under the provisions of this section shall stop and submit the vehicle or combination of vehicles to a weighing with portable or stationary weighing devices as required by section ten, article seventeen of this chapter. Any driver or owner of a vehicle or combination of vehicles operating under the provisions of this section who fails or refuses to comply with any requirement of section ten, article seventeen of this chapter shall forfeit all privileges granted by the special permits.
(i) Any vehicle or combination of vehicles transporting any load of natural resources or natural resource byproducts pursuant to the provisions of this section shall be securely covered to prevent the escape of the load on any trip exceeding a total distance of ten miles on any public highway.
(j) The secretary of the department of transportation shall propose rules for legislative approval 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 within thirty days of the effective date of this enactment.
(k) The payment of the special permit fee shall be in addition to any state registration fee, user fee or other decal fee.
(l) All revenues generated pursuant to this section shall be credited to a special account within the road fund called the "natural resource recovery road fund." All natural resource recovery road funds shall be used, in addition to regularly appropriated funds, by the division of highways for construction, maintenance, and repair of public highways and bridges over which substantial quantities of natural resource or natural resource byproducts are transported.
§17C-17A-2. Liability of producers and shippers; civil penalties.
(a) No producer or shipper of any product transported under the provisions of a special permit issued under this article may knowingly and willfully allow any vehicle to leave its premises with a load which is in excess of the permitted weight limits set forth in section one of this article.
(b) Any person found to be in violation of this section is liable for a civil administrative penalty in accordance with the following schedule:
Tons in excess of permitted weight, or in excess of allowable weights under a special permit for single axle, or in excess of allowable weights under a special permit for groups of two or more consecutive axles plus a tolerance of five percent of the permitted weight:
Amount
of
Fine
Greater than 1 to
2$ 100

Greater than 2 to
2.5$ 200

Greater than 2.5 to5$ 700
Greater than 5 to7.5$1,400
Greater than 7.5 to10$2,400
Greater than 10 to12.5$3,400
Greater than 12.5 to
15$4,400

Greater than 15 to17.5$4,500
Greater than l7.5 to
20$4,600

Greater than 20 to22.5$4,800
Greater than 22.5 to
25$5,000

Greater than 25
$7,500

(d) Within five business days' notice, all producers and shippers of natural resources or natural resource byproducts shall make available for inspection, upon the presentation of proper credentials and at reasonable times, by the secretary of the department of transportation or his or her designee, at the place of business of the producer or shipper, all shipping tickets directly related to the enforcement of a specific violation of this section. The notice shall include a reference to the section of the statute allegedly violated, the nature and substance of the alleged violation, and a description of the documents sought to be reviewed: Provided, That records allowed to be inspected pursuant to this section shall be those kept onsite only during the normal course of business: Provided, however, That the records may not be required to be maintained for more than three months after the date of the event recorded thereon.
§17C-17A-3. Liability of owners, lessees or borrowers of vehicles; criminal penalties; impounding vehicles.

(a) Any owner, lessee, or borrower of a vehicle or combination of vehicles who knowingly and willfully operates or permits to be operated on any highway such vehicle or combination of vehicles with any axle load in excess of that permitted by this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine scheduled in proportion to the amount of pounds in excess of the permitted weight plus a tolerance of five percent of the permitted weight, or in excess of allowable weights for groups of two or more consecutive axles plus a tolerance of five percent of the permitted weight, in accordance with the schedule in words and figures as follows:
Tons in excess of permitted weight, or in excess of allowable weights under a special permit for single axle, or in excess of allowable weights under a special permit for groups of two or more consecutive axles plus a tolerance of five percent of the permitted weight:
Amount
of
Fine
Greater than 1 to
2
$ 100

Greater than 2 to2.5
$ 200

Greater than 2.5 to
5
$ 700

Greater than 5 to7.5$1,400
Greater than 7.5 to
10
$2,400

Greater than l0 to12.5$3,400
Greater than l2.5 to
15$4,400

Greater than 15 to17.5$4,500
Greater than l7.5 to
20$4,600

Greater than 20 to22.5$4,800
Greater than 22.5 to
25$5,000

Greater than 25
$7,500

(b) If any owner, lessee or borrower of a vehicle is charged with knowingly and willfully violating this section, the vehicle which is charged to be overloaded shall be impounded by the arresting officer and may not be released to the owner, lessee or borrower unless and until the owner, lessee or borrower either is found guilty and paid any fine assessed against the owner, lessee or borrower, or has furnished cash or surety bond in at least double the amount of the fine which may be assessed against the owner, lessee or borrower for the violation of this section and conditioned upon the payment of any fine and costs assessed for the violation, or has been acquitted of the charge. The owner, lessee or borrower is liable for any reasonable storage costs incurred in storing the 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 but the arresting officer shall deliver to the driver a written notice stating the violation; the place, date and time; 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 operator?s or chauffeur?s card or permit; and the court, place, date and time for hearing, which shall be within ten days of the violation (Saturdays, Sundays and holidays, excluded). A copy of the notice shall within forty-eight hours be served by certified mail to the owner of the vehicle. Upon the failure by the owner of his or her or its agent to appear at the designated place and time, or upon failure to pay the fine and costs assessed for such violation, unless the owner has been acquitted of the charge, the court shall order a bond or the impounding of the vehicle as provided in this section.
§17C-17A-4. Liability of receivers, purchasers or consignees; civil penalties; liability limitations for receivers.

(a) No receiver of any product transported under the provisions of a special permit issued under this article may knowingly and willfully accept, receive or pay for any load which is in excess of the permitted weight limits set forth in this section or pay the shipper or hauler for any product in excess of the permitted weight limit.
(b) Any person found to be in violation of this section is liable for a civil administrative penalty.
(c) Within five business days' notice, all receivers, purchasers or consignees of natural resources or natural resource byproducts, shipped pursuant to a special permit issued in accordance with this article, shall make available for inspection, upon the presentation of proper credentials and at reasonable times, by the secretary of the department of transportation or his or her designee, at the place of business of the producer, shipper, receiver, purchaser or consignee, all shipping tickets directly related to the enforcement of a specific violation of this section. The notice shall include a reference to the section of the statute allegedly violated, the nature and substance of the alleged violation, and a description of the documents sought to be reviewed: Provided, That records allowed to be inspected pursuant to this section shall be those kept onsite only during the normal course of business: Provided, however, That the records may not be required to be maintained for more than three months after the date of the event recorded thereon.
(d) Any receivers of natural resource products or byproducts transported under the provisions of a special permit issued pursuant to this article shall be immune from all civil liability, damages, costs, fines and penalties resulting from the receiver?s refusal to accept, receive or pay for any load that is in excess of the permitted weight limits set forth in article seventeen-a of this chapter.
§17C-17A-5. Reduction of load and speed limits.
(a) The secretary of the department of transportation, in respect to state and federal highways, may prescribe, by notice as provided in subsection (c) of this section, load and speed limits lower than the limits prescribed in this code whenever in his or her judgment any highway may, by reason of its design, deterioration, rain or other natural causes, be damaged or destroyed by motor trucks or semitrailer trucks, if their gross weight or speed exceeds certain limits. The secretary of the department of transportation may, by like notice, regulate or prohibit the operation of motor trucks or semitrailer trucks on state highways or county roads for limited periods of specified days, or parts of days, if their load and speed exceed those limits, whenever, in the judgment of the secretary, the regulations or prohibition is necessary, by reason of traffic density or intensive use by the traveling public, to provide for the public safety on the highway.
(b) The secretary of the department of transportation in respect to bridges on the roads designated by the secretary of the department of transportation may prescribe, by notice, as provided in subsection (c) of this section, gross weight limits lower than the limits prescribed herein when in the judgment of the secretary any bridge on the roads designated by the secretary of the department of transportation may, by reason of its design or deterioration, be damaged or destroyed to the point of catastrophic failure by motor vehicles, if their gross weight exceeds certain limits.
(c) The notice or the substance of it shall be posted at conspicuous places at the termini of and at all intermediate crossroads and road junctions with the section of the highway to which the notice applies. After the notice has been posted, no person may operate any motor truck or semitrailer truck contrary to its provisions.
(d) Nothing contained herein may abrogate any authority given the secretary of the department of transportation or any company under the provisions of article twenty-five, chapter seventeen of this code.
§17C-17A-6. Authority to promulgate rules.
(a) The secretary of the department of transportation shall propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code relating to the operation of vehicles under special permits authorized by this article and driving habits generally, along with appropriate penalties for violations which may include, but not be limited to, revocation of driver licenses and other privileges. The secretary of the department of transportation may also propose rules for legislative approval in accordance with the provisions of article three, chapter twenty-nine-a of this code specifying that when any person operating a vehicle under a special permit issued under this article violates the speed limitations set forth in the provisions of article six of this chapter, the penalty to be imposed for the violation shall be at the maximum allowed by law.
(b) The secretary of the department of transportation shall propose rules for legislative approval in accordance with the provisions of article three, in accordance with the provisions of chapter twenty-nine-a of this code relating to allowing the secretary of the department of transportation to inspect weight records or bills of lading directly related to the purposes of assessing civil penalties under this section against the producer and/or shipper of any product. For purposes of this section, "receiver" means the person accepting the transported goods at the point of ultimate destination within the state. For purposes of this section, "producer" means the person producing or manufacturing natural resources or natural resource byproducts for sale, and "shipper" means any person arranging for the transportation of natural resources or natural resource byproducts.
(c) The secretary of the department of transportation shall promulgate rules in accordance with the provisions of chapter twenty-nine-a of this code relating to allowing the secretary of the department of transportation to assess a fine two times that permitted by law for safety violations of owners, lessees or borrowers of vehicles regulated by this chapter.
(d) Pursuant to state law, the secretary of the department of transportation shall, within thirty days of passage, redesignate and reassign weight limits to all state highways.
(e) All rules authorized by this section shall be initially promulgated as emergency rules pursuant to the provisions of article three, chapter twenty-nine-a of this code within thirty days of the effective date of this enactment.
§17C-17A-7. Concurrent jurisdiction of magistrates.
Magistrates have concurrent jurisdiction with the circuit courts to hear, try and determine actions commenced under this article.
§17C-17A-8. Disposition of civil administrative penalties.
Any civil administrative penalty imposed pursuant to this article shall be paid by the defendant to the state of West Virginia road fund and shall be available for appropriation therefrom.
§17C-17A-9. Exclusion of interstate highways.
Notwithstanding any other provisions of state law to the contrary, no provisions of this article shall apply to the interstate highways in West Virginia.

NOTE: The purpose of this bill is to create a special permits system allowing for transportation of natural resources and natural resources byproducts at weights in excess of certain maximum gross weights. It prescribes the criteria for issuance of special permits and conditions and provides that the secretary of the Department of Transportation determine the permit system.

 This article is new; therefore, strike-throughs and underscoring have been omitted.