Senate Bill No. 168

(By Senator White)

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[Introduced January 13, 2010; referred to the Committee on Energy, Industry and Mining; and then to the Committee on Finance .]

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A BILL to amend and reenact §17C-17A-5, §17C-17A-6, §17C-17A-9 and §17C-17A-10 of the Code of West Virginia, 1931, as amended, all relating to the commercial transportation of coal; establishing when a shipper's permit is required; providing sanctions for failure to pay certain assessments; and revising methodology for calculation of administrative sanctions and penalties for excess weights.

Be it enacted by the Legislature of West Virginia:
That §17C-17A-5, §17C-17A-6, §17C-17A-9 and §17C-17A-10 of the Code of West Virginia, 1931, as amended, be amended and reenacted, all to read as follows:
ARTICLE 17A. REGULATION OF THE COMMERCIAL TRANSPORTATION OF COAL.

 §17C-17A-5. Operation of coal trucks under special permits; weight
limitations; payment of permit fees.

(a) Any vehicle, when transporting coal over certain public highways, designated as coal resource transportation roads by the Commissioner of the department Division of Highways, may be operated at the weights as set forth in this section in excess of the maximum gross weight prescribed in section nine, article seventeen of this chapter 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.
(b) 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 eighty thousand pounds with a tolerance of five percent and pay a special permit fee annually of $100;
(2) A single unit truck having one steering axle and three axles in tridem arrangement shall be limited to a maximum gross weight of ninety thousand pounds with a tolerance of five percent and pay a special permit fee annually of $160;
(3) A tractor-semitrailer combination with five axles shall be limited to a maximum gross weight of one hundred ten thousand pounds with a tolerance of five percent and pay a special permit fee annually of $300;
(4) A tractor-semitrailer combination with six or more axles shall be limited to a maximum gross weight of one hundred twenty thousand pounds with a tolerance of five percent and pay a special permit fee annually of $500.
(c) The axle loads set forth in subsection (b) of this section may in no event exceed the maximum axle load allowable based upon the minimum axle spacings as determined by the Division of Highways in accordance with generally accepted industry standards and bridge loading analysis.
(d) In order to qualify for issuance of a special permit, the applicant shall provide information that demonstrates 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, the manufacturer's rated capacity. In the event that manufacturer's rated capacity is not available, any other information 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 commission on forms prescribed and furnished by it. The special permit indicium 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 indicia shall be replaced in accordance with legislative rules to be promulgated by the commission. The special permit indicium shall be issued to a particular vehicle and shall remain with the vehicle upon transfer of possession or ownership of the vehicle.
(f) Special permits issued pursuant to the provisions of this article are valid for a period of one year from the date of purchase: Provided, That no renewal permits shall be issued to any permittee who, at the time of the renewal, has any administrative or criminal actions pending relating to the operation of commercial motor vehicles in this or other states.
(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 may be construed or administered to jeopardize the receipt of federal funds for highway purposes.
(h) Any operator of a vehicle with a special permit issued under the provisions of this article shall submit the vehicle or combination of vehicles to 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 forfeits all privileges granted by the special permits.
(i) 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.
(j) As a condition of receipt of a special permit, vehicle owners and operators shall submit permitted vehicles to safety checks and other vehicle inspection requirements as required by legislative rules of the commission. The commission may impose additional vehicle operation and maintenance requirements by rule as the commission deems appropriate to assure the safe operation of vehicles issued a special permit.
(k) 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 said article by no later than October 1, 2003.
(l) The payment of the special permit fee is in addition to any state registration fee, user fee or other decal fee.
(m) All revenues generated pursuant to this section shall be credited to a special account within the road fund which is created and shall be designated as the "Coal Resource Transportation Road Fund". Moneys of the fund shall be used by the Division of Highways for construction, maintenance and repair of public highways and bridges over which substantial quantities of coal are transported.
(n) For periods of less than one year, the permit fee imposed by subsection (b) of this section shall be prorated to the nearest month.
(o) The commission may suspend any special permit for failure of any permittee to pay any administrative sanction as required by section nine of this article within sixty days of a final order assessing the sanction, or at any time if the permittee owes in total more than $25,000 in administrative sanctions pursuant to a final order.
§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 coal resource transportation road in this state that loads vehicles shall be required to have a shippers permit and report to the commission weight and other transport-related data as required in this article. The commission shall by rule establish a process for issuing shippers permits and special recording and reporting methods for timely and accurate disclosure of all shipments of coal made upon any coal resource transportation road of this state. The rules shall provide for administrative penalties and a process for revocation of a shipping permit to be imposed for failure to timely or accurately report weight or other required data. A shippers permit is only required when the shipper is loading coal to a hauler that has been issued a special permit as authorized by sections four and five of this article. The shippers permit is to cost $100 per annum and is to be retained by the commission.
(b) Every vehicle owner who transports coal on a coal resource transportation road 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 of any unsafe vehicle or driver.
(c) Every receiver of coal transported on a coal resource transportation road in this state that unloads or causes to be unloaded any shipment of coal shall report to the commission the weight of the shipment and other data related to the shipment as required by rules promulgated by the commission. The rules shall provide for administrative penalties to be imposed for failure to timely or accurately report the weight or other data. Compliance with the reporting requirements shall cause the receiver to be immune from any and all criminal, civil and administrative liability, damages, costs, fines and penalties based on, arising out of or resulting from the receiver's receipt or acceptance of the shipment.
(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 coal resource transportation road of this state.
(e) Any receiver receiving any vehicle transporting coal in excess of eighty-eight thousand pounds on any noncoal transportation highways shall file a report with the Public Service Commission, identifying the vehicle and its driver within twenty- four hours of being received. The reports shall be subject to freedom of information requests in accordance with chapter twenty- nine-b of this code. Nothing contained in this subsection shall be construed to restrict application of any other provision of this chapter or any rules promulgated pursuant to this chapter.
§17C-17A-9. Administrative sanctions.
(a) This section imposes administrative sanctions for violations occurring on the coal resource transportation road system. It is the intent of the Legislature to impose administrative sanctions in addition and separate from any criminal or civil penalties upon any person violating or assisting in the violation of the provisions of this article.
(b) For a particular violation, the commission may take administrative notice of criminal convictions, or a plea of nolo contendere, for a violation for purposes of imposing the administrative sanctions in this section in lieu of the procedure provided in subsection (f) of this section. 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 shall impose sanctions upon an operator, shipper, receiver or truck owner when a violation is found to have occurred. Notwithstanding the provisions of section five of this article providing a tolerance of five percent for excess vehicle weight, any administrative sanction for a vehicle exceeding the weight limit and tolerance established for that vehicle shall be assessed by the numerical weight limit established for that vehicle, and any assessment shall include the excess weight that would be otherwise waived if the vehicle had not exceeded the five percent tolerance. Lack of intent is not a defense to a violation except as it applies to receivers.
(c) Administrative sanctions for violations shall be imposed as follows:
(1) Every shipper of coal for transport on the public roads or highways of this state which loads coal in an amount which results in gross vehicle weight to be in excess of the weight limits established in this article shall be subject to an administrative penalty per pound in excess of the lawful weight pursuant to the penalty schedule established in section ten of this article;
(2) It is unlawful for any person to operate a commercial motor vehicle engaged in the transportation of coal with a gross vehicle weight for nonpermitted vehicles in excess of the lawful maximum weight on a coal resource transportation road without a permit required by section five of this article. 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: Provided, That in the case of a permit, expired for less than thirty days, the operator my may present a valid permit to the commission within five days of the date of the offense in order to avoid the penalty;
(3) Any owner of a commercial motor vehicle engaged in the transportation of coal operating without an excess weight hauling permit and bearing a gross vehicle weight in excess of the lawful maximum weight for the public highway for nonpermitted vehicles who allows the operation of that vehicle upon a coal resource transportation road of this state shall have any state-issued hauling permit then in force suspended by the commission for a period of ninety days for the first offense, six months for the second offense, and revoked for the third offense: Provided, That in the case of a permit, expired for less than thirty days, the operator my may present a valid permit to the commission of motor vehicles within five days of the date of the offense in order to avoid the penalty: Provided, however, That should there be no state-issued hauling permit then in force, the owner shall have his or her vehicle registration suspended by the commission of motor vehicles for a period of ninety days for the first offense, six months for the second offense and revoked for the third offense;
(4) Any operator who operates a vehicle engaged in the transportation of coal that has been issued a special permit by the division upon the coal resource transportation road system and who operates the vehicle with a gross vehicle weight that is in excess of the lawful maximum weight allowed pursuant to the permit shall have his or her driver's license suspended by the Commissioner of the Division of Motor Vehicles for a period of three days for the first offense, thirty days for the second offense and six months for the third offense;
(5) Any owner of a vehicle engaged in the transportation of coal that has been issued a special permit by the commission who allows the operation of that vehicle upon the coal resource transportation road system with a gross vehicle weight that is in excess of the lawful maximum weight allowed pursuant to the permit shall have the special permit suspended by the commission for a period of three days for the first offense, thirty days for the second offense and revoked for the third offense;
(6) Any operator who operates a vehicle engaged in the transportation of coal with a suspended excess weight hauling permit at a weight in excess of the limits imposed by article seventeen of this chapter upon the coal resource transportation road system shall have his or her driver's license suspended by the Commissioner of the Division of Motor Vehicles for a period of six months for the first offense, twelve months for the second offense, and two years for the third offense: Provided, That if the operator is also the owner of the vehicle, the owner penalties set forth in subdivision (5) of this subsection also apply;
(7) Any owner of a vehicle engaged in the transportation of coal with a suspended excess weight hauling permit who allows the operation of that vehicle upon the roads or highways of this state during a period of permit suspension at a weight in excess of the limits imposed by article seventeen of this chapter shall have all state-issued hauling permits then in force suspended by the commission or, if applicable, the Commissioner of Highways for a period of twelve months for the first offense, two years for the second offense and revoked for the third offense;
(8) Any operator who operates a vehicle engaged in the transportation of coal that has been issued a special permit by the commission under the provisions of section five of this article and who is charged with a violation of section one, article six, chapter seventeen-c of this code upon a road or highway of this state designated by the Commissioner of Division of Highways as a part of the coal resource transportation road system shall have his or her driver's license suspended by the Commissioner of the Division of Motor Vehicles for a period of three days for the first offense, thirty days for the second offense and revoked for the third offense;
(9) Any person who falsifies information relating to the acquisition of a hauling permit 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;
(10) Any person regulated pursuant to this article that falsifies information relating to the acquisition of a hauling permit shall have its state-issued business license suspended by the Commissioner of the state Tax Division for a period of six months for the first offense, one year for the second offense and two years for the third offense;
(11) Any person who fabricates or displays an altered, forged or counterfeited permit 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 revoked for the third offense;
(12) Any person that bribes or attempts to bribe an employee of the State of West Virginia or who gives an employee of the State of West Virginia a gift, gratuity, entertainment, loan, favor or other thing of monetary value for the purpose of avoiding any penalties permitted under this article shall have his or her state- issued hauling permit then in force suspended by the commission for a period of sixty days for the first offense, one hundred twenty days for the second offense and revoked for the third offense;
(13) In the case of multiple violations by a permittee, shipper, operator or receiver, the commission may direct that the imposed suspension be served concurrently or consecutively, taking into account the frequency of violations committed during the inclusive time periods, or in the same course of misconduct if the commission determines that sufficient mitigating or aggravating circumstances are present;
(14) 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; and
(15) Any person that aids or abets a person's attempt to avoid suspension shall have its state-issued business license suspended by the Tax Commissioner for a period of three months for the first offense, six months for the second offense and one year for the third offense.
(d) Without providing a hearing, the commission may immediately suspend a person from obtaining permits or operating under permit authority for failure to pay a fee required under this article until proper payment is received. Upon the completion of all administrative appeals of any violation that results in a license suspension, the commission shall notify the Division of Motor Vehicles which shall act accordingly.
(e) Without providing a hearing, the commission and law- enforcement personnel may immediately confiscate an altered, forged or counterfeited permit, or a permit used in violation of its terms and conditions. Upon issuance of a citation alleging a violation of this subsection, the vehicle and its load shall be impounded by law-enforcement personnel until such time as a hearing on the matter is conducted by the division.
(f) 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 has 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) For purposes of the enhanced penalty provisions of this section, the second and subsequent offenses shall be calculated on a per-year basis.
(4) In addition to the imposition of an administrative sanction, the commission or division may, by administrative order and upon an appropriate finding, assess a violator for the reasonable costs, as established by rules of any investigation, inspection or monitoring survey which led to the establishment of the violation.
§17C-17A-10. 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 the vehicle or combination of vehicles with a total gross weight load imposed upon the highway by any one group of two or more consecutive axles in excess of that permitted by section five of this article is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine based on the number of pounds in excess of the registered weight, or in excess of allowable weights for single axle, or in excess of allowable weights for groups of two or more consecutive axles, in accordance with the following schedule:
Excess Weight Amount of Fine
1 to 4,000 pounds. 1 cent per overweight pound
4,001 to 8,000 pounds.3 cents per overweight pound
8,001 to 12,000 pounds.7 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 punished by a fine according to the following schedule:

Excess WeightAmount of Fine
1 to 4,000 pounds 1 cent per overweight pound
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. Notwithstanding the provisions of section five of this article providing a tolerance of five percent for excess vehicle weight, any fine assessed pursuant to this section for a vehicle exceeding the weight limit and tolerance established for that vehicle shall be assessed by the numerical weight limit established for that vehicle and any fine shall include the excess weight that would be otherwise waived if the vehicle had not exceeded the five percent tolerance.
(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) of this section; 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) of this section conditioned upon the payment of any fine and costs assessed for the 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; the 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 days of the violation, Saturdays, Sundays and holidays excluded. A copy of the notice shall be mailed to the owner of the vehicle within forty-eight hours. 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 registered weight, allowable weights for single axle or allowable weights for groups of two or more consecutive axles is also guilty of a misdemeanor and, upon conviction, shall be punished by a fine equal to that 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 are in addition to any other liability that may be legally fixed against the owner, operator or other person charged with a weight violation.

NOTE: The purpose of this bill is to establish when a shippers permit is required for transporting coal. The bill provides sanctions for failure to pay certain assessments and revises the methodology for calculation of administrative sanctions and penalties for excess weights.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.