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Chapter 64     Entire Code
‹ Chapter 63  |  Chapter 64 Printer Friendly Versions
Chapter 64  |  Article 64 - 10  |  Section 1
WVC 64- CHAPTER 64. LEGISLATIVE RULES.
WVC 64-10- ARTICLE 10. AUTHORIZATION FOR BUREAU OF COMMERCE TO PROMULGATE LEGISLATIVE RULES.

WVC 64 - 10 - 1 §64-10-1. Office of Miners' Health, Safety and Training.

     (a) The legislative rule filed in the State Register on March 26, 2013, authorized under the authority of section six, article one, chapter twenty-two-a of this code, relating to the Office of Miners' Health, Safety and Training (assessing health and safety violation penalties, 56 CSR 12 ), is authorized.

     (b) The legislative rule filed in the State Register on July 26, 2013, authorized under the authority of section four, article one, chapter twenty-two-a of this code, relating to the Office of Miners' Health, Safety and Training (program for the sharing of information between employers, 56 CSR 18 ), is authorized.

     (c) The legislative rule filed in the State Register on March 26, 2013, authorized under the authority of section fourteen, article six, chapter twenty-two-a of this code, modified by the Office of Miners' Health, Safety and Training to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 20, 2013, relating to the Office of Miners' Health, Safety and Training (substance abuse screening, standards and procedure, 56 CSR 19 ), is authorized with the following amendments:

     On page two, after subsection 3.7, by inserting a new subsection, designated subsection 3.8, to read as follows:

     3.8. Duly licensed, mental health professional. The term "duly licensed, mental health professional" means a psychiatrist, psychologist, professional counselor or substance abuse counselor in the United States who is licensed by, and in good standing with, the licensing authority of the jurisdiction in which the person practices.;

     And by renumbering the remaining subsections;

     On page four, subsection 3.17, by striking out the word "accidents" and inserting in lieu thereof the word "accident";

     On page six, by striking out all of subsection 4.7 and inserting in lieu thereof a new subsection, designated subsection 4.7, to read as follows:

     4.7. Any applicant, who is adversely affected by a decision of the Director following a hearing on an application for safety- sensitive certification, may petition for judicial review of the Director's decision in the Circuit Court of Kanawha County or in the circuit court of the county in which the applicant resides, pursuant to the provisions of W. Va. Code § 29A-5-4.;

     On page six, subsection 4.8, by striking out the word "shall" and inserting in lieu thereof the word "may";

     On page six, subsection 5.2, by striking out subsection 5.2 in its entirety and inserting in lieu thereof, a new subsection 5.2 to read as follows:'Every employer's program shall at a minimum comply with all state mine laws relevant to substance abuse screening, standards and procedures.";

     On page seven, subdivision 5.3.5, by striking out the word "Pphencyclidine" and inserting in lieu thereof the word "Phencyclidine";

     On page eight, subsection 5.5, by striking out "5.5" and inserting in lieu thereof "5.6";

     And by renumbering the remaining subsections;

     On page nine, subsection 5.11, by striking out the subsection in its entirety, and inserting in lieu thereof a new subsection 5.11., as follows:

     "5.11 Every employer shall notify the director, on a form prescribed by the director, within seven (7) days of any of the following:

     5.11.a A positive drug or alcohol test of a certified person, whether it be a pre-employment test, random test, reasonable suspicion test, or post-accident test;

     5.11.b. The refusal of a certified person to submit a sample;

     5.11.c. A certified person possessing a substituted sample or an adulterated sample; or

     5.11.d. A certified person submitting a substituted sample or an adulterated sample."

     On page nine, after subdivision 5.11.d. by inserting two new subsections designated 5.12. and 5.13., to read as follows:

     "5.12. When the employer submits the completed notification form prescribed by the director, the employer shall also submit a copy of the laboratory test results showing the substances tested for and the results of the test.

     5.13. A notice pursuant to subdivision 5.11., shall result in the immediate temporary suspension of all certificates held by the certified person who failed the screening, pending a hearing before the board of appeals, except in the case of a certified person who is subject to a collective bargaining agreement, in which case the notification pursuant subsection 5.11., shall not result in the immediate temporary suspension of any certificate held by the certified person who is subject to a collective bargaining agreement unless and until the arbitration is concluded and the discharge is upheld, and no certificate held by a certified person who is subject to a collective bargaining agreement shall be suspended or revoked unless the discharge is upheld in arbitration."

     And by renumbering the remaining subsections;

     On page eleven, subdivision 6.1.2, by striking out the words "Notify the Board of Appeals" and inserting in lieu thereof the words "Notify the Director";

     On page eleven, subsection 6.2, by striking out the words "notify the Board of Appeals" and inserting in lieu thereof the words "notify the Director";

     On page fourteen, subsection 8.1, by striking out the words "is found, by a preponderance of the evidence, to have: failed" and inserting in lieu thereof the words "has entered into a treatment plan agreement as specified in subsection 9.1 of this rule or who is found, by a preponderance of the evidence, to have failed";

     On page fourteen, by striking out all of subsection 8.2 and inserting in lieu thereof three new subsections, designated subsections 8.2, 8.3 and 8.4, to read as follows:

     8.2. Any person requesting a hearing who intends to challenge the sample collection methods, the laboratory test results, the medical review officer's verification of the laboratory test result or the chemical test of breath, shall notify the Director of his or her intent. The person shall submit the notification in writing, either in person or by mail to the Director, at least fourteen (14) days prior to the hearing date. The notification shall specify, in detail, the challenge the person intends to make.

     8.3. If the person requesting the hearing submits notification in writing to the Director that he/she intends to challenge the laboratory test results of the medical review officer's verification of the laboratory test result, that person shall have the split sample tested, at his/her expense, at a SAMSHA-certified laboratory and those results verified by a medical review officer. The split sample results and the results of the split sample verification by a medical review officer shall be provided to the Director and the original medical review officer. No other form of evidence shall be admissible to challenge the laboratory test result of the medical review officer's verification of the laboratory test result.

     8.4. If a person fails to comply with the notification requirements of this section, then the sample collection methods, the laboratory test results, the medical review officer's verification of the laboratory test result, or the chemical test of breath shall be admissible as though the person and the Director had stipulated to their admissibility.;

     And by renumbering the remaining subsections;

     On page fifteen, subdivision 9.1.1, by striking out the words "treatment at a facility licensed by the State of West Virginia in substance abuse" and inserting in lieu thereof the words "treatment, counseling and after-care under the supervision of a duly licensed, mental health professional";

    On page fifteen, subdivision 9.1.2, by striking out the words "treatment at a facility licensed by the State of West Virginia in substance abuse" and inserting in lieu thereof the words "treatment, counseling and after-care under the supervision of a duly licensed, mental health professional";

     On page fifteen, subdivision 9.1.3, by striking out the words "treatment at a facility licensed by the State of West Virginia in substance abuse" and inserting in lieu thereof the words "treatment, counseling and after-care under the supervision of a duly licensed, mental health professional";

     And,

     On page sixteen, after subdivision 9.1.4, by adding the following:

     "9.1.5. An admission by the individual that he or she has failed or refused a drug and alcohol test for the first time and that a second failure or refusal shall result in the permanent revocation of all mining certifications issued to him or her.

     9.2. The Director shall review all Treatment Agreements and shall not approve any Agreement that does not comply with this rule.

     9.3. The Director shall insure an individual has satisfied all conditions for reinstatement before reinstating any certificate."

WVC 64 - 10 - 2 §64-10-2. Division of Labor.

     (a) The legislative rule filed in the State Register on July 23, 2013, authorized under the authority of section thirteen, article five, chapter twenty-one of this code, modified by the Division of Labor to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on November 5, 2013, relating to the Division of Labor (Wage Payment and Collection Act, 42 CSR 5 ), is authorized with the following amendments:

     On page three, after subsection 4.2., by inserting a new subsection, designated subsection 4.3., to read as follows:

     4.3. An employer shall keep posted in a place accessible to all employees an abstract of the West Virginia Wage Payment and Collection law prepared and provided by the Commissioner.;

     On page four, by striking out all of subsection 7.2. and inserting in lieu thereof a new subsection, designated subsection 7.2., to read as follows:

     7.2. The scheduled payday for a railroad company shall occur within the time periods specified by West Virginia Code §21-5-2. The scheduled payday for every employer other than a railroad company shall occur at least once every 2 weeks, unless otherwise authorized by special agreement as provided in section eight of this rule.;

     On page five, after subsection 8.2., by inserting a new subsection, designated subsection 8.3. to read as follows:

     8.3. The Commissioner shall notify all employees identified by the employer and provide each employee with an opportunity to respond to the petition.

     And by renumbering the remaining subsections;

     On page five, subsection 8.4, by striking out the words "After the hearing," and inserting in lieu thereof the words "Following the submission of the petition, the responses of the affected employees, and the holding of the hearing, if any,";

     And,

     On page seven, subsection 10.6, by striking out the words "established by" and inserting in lieu thereof the words "specified in the written demand of".

     (b) The legislative rule filed in the State Register on July 23, 2013, authorized under the authority of section thirteen, article five, chapter twenty-one of this code, modified by the Division of Labor to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on November 5, 2013, relating to the Division of Labor (employer wage bonds, 42 CSR 33 ), is authorized.

WVC 64 - 10 - 3 §64-10-3. Division of Natural Resources.

     (a) The legislative rule filed in the State Register on July 25, 2013, authorized under the authority of section twenty-three, article seven, chapter twenty of this code, relating to the Division of Natural Resources (special motorboating, 58 CSR 27 ), is authorized.

     (b) The legislative rule filed in the State Register on July 25, 2013, authorized under the authority of section four, article two, chapter twenty of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on October 8, 2013, relating to the Division of Natural Resources (electronic registration of wildlife, 58 CSR 72 ), is authorized.

WVC 64 - 10 - 4 §64-10-4. Division of Natural Resources.

     (a) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, relating to the Division of Natural Resources (special boating, 58 CSR 26), is authorized.

     (b) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section twenty-three, article seven, chapter twenty of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on October 18, 2012, relating to the Division of Natural Resources (special motorboating, 58 CSR 27), is authorized.

     (c) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, relating to the Division of Natural Resources (defining the terms used in all hunting and trapping rules, 58 CSR 46), is authorized.

     (d) The legislative rule filed in the State Register on July 19, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, relating to the Division of Natural Resources (prohibitions when hunting and trapping, 58 CSR 47), is authorized.

     (e) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on October 18, 2012, relating to the Division of Natural Resources (deer hunting, 58 CSR 50), is authorized.

     (f) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, relating to the Division of Natural Resources (general trapping, 58 CSR 53), is authorized.

     (g) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, relating to the Division of Natural Resources (special waterfowl hunting, 58 CSR 58), is authorized.

     (h) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, relating to the Division of Natural Resources (special fishing, 58 CSR 61), is authorized.

     (i) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section seven, article one, chapter twenty of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on October 31, 2012, relating to the Division of Natural Resources (falconry, 58 CSR 65), is authorized with the following amendments:

     On page one, subsection 2.8., after the word "Falconiformes" by inserting a comma and the words "the Order Accipitriformes";

     On page one, after subsection 2.8., by inserting a new subsection 2.9. to read as follows:

     "2.9. "Passage" means a first-year raptor that is no longer dependent upon parental care.";

     On page three, by striking out all of subsection 4.5. and inserting in lieu thereof a new subsection 4.5. to read as follows:

     "4.5. A permittee may use a falconry to take any bird species for which there is a depredation order in place in 50 CFR at any time in accordance with the conditions of the applicable depredation order. The permittee may not receive any compensation for depredation activities.";

     On page four, subdivision 5.3.e., after the word "Falconiform" by inserting a comma and the word "Accipitriform";

     On page six, subdivision 7.2.a., by striking out the word "Alymeri" and inserting in lieu thereof the word "Aylmeri";

     On page eight, by striking out all of subsection 10.1. and inserting in lieu thereof a new subsection 10.1. to read as follows:

     "10.1. A raptor taken, possessed, transported or used for falconry purposes shall be marked with: a seamless, numbered band issued by the Division for captive-bred birds or a U. S. Fish and Wildlife Service permanent, non-reusable numbered band issued by the Division for birds originating from the wild. An ISO (International Organization for Standardization)-compliant (134.2 kHz) microchip may be implanted in addition to the band.";

     On page eight, by striking out all of subsection 10.3. and inserting in lieu thereof a new subsection 10.3. to read as follows:

     "10.3. A permittee must report the loss or removal of any band within five (5) days by filing a Federal form 3-186A either electronically or in paper form. Lost bands must be replaced by a permanent, nonreusable numbered band supplied by the division. Upon remarking the raptor, the permittee shall immediately complete and submit a Federal form 3-186A either electronically or on paper reporting the new band.";

     On page nine, by striking out all of subsection 10.6. and inserting in lieu thereof a new subsection 10.6. to read as follows:

     "10.6. A permittee shall remove and surrender to the division any markers from an intentionally released raptor which is indigenous to the state. A standard Federal band may be attached to the birds at the discretion of the division prior to release.";

     On page nine, subsection 11.1., by striking out the words "both the division and the U. S. Fish and Wildlife Service Regional Law-Enforcement office" and inserting in lieu thereof the words "the division";

     And,

     On page nine, by striking out all of subsection 11.3. and inserting in lieu thereof a new subsection 11.3. to read as follows:

     "11.3. Resident General or Master Falconers may take from the wild any species of Falconiform, Accipitriform or Strigiform in West Virginia except: eagles; peregrine falcon (Falco peregrines); Northern harrier (Circus cyaneus); northern goshawk (Accipiter gentilis); American rough-legged hawk (Buteo lagopus); barn owl (Tyto alba); long-eared owl (Asio otus); short-eared owl (Asio flammeus); saw-whet owl (Aegolius acadicus); merlin (Falco columbaris) eyases; and sharp-shinned hawk (Accipiter straitus) eyases." WVC 64 - 10 - 5 §64-10-5. Division of Labor.

     (a) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section fifteen, article one-a, chapter forty-seven of this code, modified by the Division of Labor to meet the objections of the Legislative Rule- Making Review Committee and refiled in the State Register on December 21, 2012, relating to the Division of Labor (bedding and upholstered furniture, 42 CSR 12), is authorized with the following amendments:

     On page two, following subsection 3.6, by striking subsection 3.7 and renumbering the remaining subsections;

     On page two, subsection 3.9, line two, following the word "manufacturing" and the comma, by striking the word "importing" and the comma;

     On page three, subsection 5.1, line one, following the word "manufacturing" and the comma, by striking the word "importing" and the comma;

     On page three, subsection 5.1, line three, following the word "manufacturer" and the comma, by striking the word "importer" and the comma;

     On page three, subsection 6.1, line one, following the word "manufacturer" and the comma, by striking the word "importer" and the comma;

     On page three, subsection 6.2, line one, following the word "manufacturer", by striking the words "or importer";

     One page five, subsection 9.3, line one, following the word "manufacturer" and the comma, by striking the word "importer" and the comma;

     On page five, subdivision 10.1.1, following the word "manufacturer", by striking the words "or importer";

     On page ten, appendix C, line sixteen, by striking out the misspelled word "ADRESS" and inserting the in lieu thereof, the word "ADDRESS";

     On page eleven, appendix D, line twenty, by striking out the misspelled word "ADRESS" and inserting the in lieu thereof, the word "ADDRESS";

     On page fourteen, appendix G, line fourteen, by striking out the misspelled word "ADRESS" and inserting the in lieu thereof, the word "ADDRESS";

     And,

     On page fifteen, appendix H, line thirteen, by striking out the misspelled word "ADRESS" and inserting the in lieu thereof, the word "ADDRESS";.

     (b) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section three, article ten, chapter twenty-one of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 21, 2012, relating to the Division of Labor (Amusement Rides and Amusement Attractions Safety Act, 42 CSR 17), is authorized with the following amendments:

     On pages three and four, by re-designating subdivisions 4.1.1., 4.1.2., 4.1.3., 4.1.4., 4.1.5., 4.1.6., 4.1.7., 4.1.8., 4.1.9., 4.1.10. and 4.1.11., as 4.1.a., 4.1.b., 4.1.c., 4.1.d., 4.1.e., 4.1.f., 4.1.g., 4.1.h., 4.1.i., 4.1.j. and 4.1.k.;

     On page seven, subdivision 9.2.b., line two, after the word "has", by striking out the word "of";

     On page eight, subdivision 10.2.b., line two, after the word "has", by striking out the word "of";

     On page eleven, subsection 17.4, line two, following the words "report of the", by inserting the word "serious";

     On page eleven, subsection 17.5, line one, following the words "document the", by striking the word "accident" and inserting in lieu thereof the words "serious injury or fatality";

     On page eleven, subsection 18.1, line two, following the words "required by", by striking the words "this section of the rule" and inserting in lieu thereof the words "sections 15 or 17 of this rule";

     On page eleven, subsection 18.1, line three, following the word "cessation" and the comma, by striking the words "imminent danger notification" and the comma;

     On page twelve, subsection 19.4, line three, following the word "operation", by striking the words "is prohibited" and inserting a colon;

     On page twelve, by re-designating subdivisions 19.4.1 and 19.4.2 as 19.4.a. and 19.4.b.;

     And,

     On page twelve, by re-designating paragraphs 19.4.2.1., 19.4.2.2., 19.4.2.3., 19.4.2.4., 19.4.2.5., 19.4.2.6. as 19.4.b.1., 19.4.b.2., 19.4.b.3., 19.4.b.4., 19.4.b.5., 19.4.b.6.

     (c) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section eleven, article three-c, chapter twenty-one of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 21, 2012, relating to the Division of Labor (supervision of elevator mechanics and apprentices, 42 CSR 21A), is authorized, with the following amendments:

     On page two, subsection 5.1., by un-striking the word "may" and striking out the word "shall";

     On page two, subsection 5.2., by un-striking the word "may" and striking out the word "shall";

     And,

     On page six, subsection 9.2, line two, after the word "with", by striking out the word "the".

    (d) The legislative rule filed in the State Register on August 31, 2012, authorized under the authority of section three, article three-d, chapter twenty-one of this code, modified by the Division of Labor to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on December 21, 2012, relating to the Division of Labor (Crane Operator Certification Act, 42 CSR 24), is authorized with the following amendment:

     On page two, subsection 3.4, line four, following the word "November", by striking "10" and inserting in lieu thereof "14".

     (e) The legislative rule filed in the State Register on August 21, 2012, authorized under the authority of section three, article three-d, chapter twenty-one of this code, relating to the Division of Labor (Crane Operator Certification Act - practical examination, 42 CSR 25), is authorized with the following amendments:

     On page two, subsection 3.4, line five, following the word "November", by striking "10" and inserting in lieu thereof "14";

     And,

     On page three, line fifteen, after the stricken subdivision designation 4.5.d., by inserting the subdivision designation 4.4.d.." WVC 64 - 10 - 6 §64-10-6. Division of Natural Resources

     (a) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand eleven, authorized under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of September, two thousand eleven, relating to the Division of Natural Resources (special boating, 58 CSR 26), is authorized.

     (b) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand eleven, authorized under the authority of section twenty-three, article seven, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of September, two thousand eleven, relating to the Division of Natural Resources (special motorboating, 58 CSR 27), is authorized.

     (c) The legislative rule filed in the State Register on the twenty-sixth day of July, two thousand eleven, authorized under the authority of section seven, article one, chapter twenty, of this code, relating to the Division of Natural Resources (hunting, trapping and fishing, 58 CSR 45A), is authorized.

     (d) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand eleven, authorized under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of September, two thousand eleven, relating to the Division of Natural Resources (defining the terms used in all hunting and trapping, 58 CSR 45), is authorized.

     (e) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand eleven, authorized under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of September, two thousand eleven, relating to the Division of Natural Resources (prohibitions when hunting and trapping, 58 CSR 470, is authorized.

     (f) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand eleven, authorized under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of September, two thousand eleven, relating to the Division of Natural Resources (general trapping, 58 CSR 53), is authorized, with the following amendment:     

     On page one, section three, subsection 3.2, in the first sentence, after the word "Areas" by adding "and State Forests",

     And,

     On page one, section three, subsection 3.2, in the second sentence, after the word "Area" by adding "or State Forest".

     (g) The legislative rule filed in the State Register on the twenty-fifth day of July, two thousand eleven, authorized under the authority of section seven, article one, chapter twenty, of this code, modified by the Division of Natural Resources to meet the objections of the Legislative Rule-Making Review Committee and refiled in the State Register on the twenty-second day of September, two thousand eleven, relating to the Division of Natural Resources (special fishing, 58 CSR 61), is authorized.

Note: WV Code updated with legislation passed through the 2014 1st Special Session
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