Title 42 W. Va. C.S.R.

Labor Labor

Series 03 High-Pressure Steam Boiler and Forced Flow Steam Generator Requirements

W. Va. Code R. § 42-3-1 General

1.1. Scope. -- This rule establishes the requirements for an application for a permit to install a high-pressure steam boiler or a forced flow steam generator, the issuance of permits to operate a high-pressure steam boiler or a forced flow steam generator, the inspection of high-pressure steam boilers and forced flow steam generators, fees for inspections of and the issuance of permits for high-pressure steam boilers and forced flow steam generators, the certification of inspectors and special inspectors, and grounds for the revocation of a permit to operate a high-pressure steam boiler or a forced flow steam generator.

1.2. Authority. -- W. Va. Code §21-3-7.

1.3. Filing Date. -- April 27,2021

1.4. Effective Date. -- June 9, 2021

1.5. Sunset Date. This rule shall terminate and have no further force or effect upon June 9, 2031.

W. Va. Code R. § 42-3-2 Application and Enforcement

2.1. Application. This legislative rule applies to high-pressure steam boiler and forced flow steam generator inspectors and special inspectors, to the installation, inspection, and operation of high-pressure steam boilers and forced flow steam generators, and to any person responsible for the inspection or operation of a high-pressure stream boiler or forced flow steam generator.

2.2. Enforcement. The enforcement of this legislative rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-3-3 Definitions

The following definitions are in addition to the terms defined in the National Board’s Recommended Administrative Boiler and Pressure Vessel Safety Rules and Regulations (NB-132), Part 1, Definition of Terms,” incorporated by reference in subsection 4.2. of this rule:

3.1. “Act” means W. Va. Code §21-3-7, “Regulation of operation of steam boilers.”

3.2. “Appurtenance” means any control, fitting, appliance, or device attached to or working in conjunction with a high-pressure steam boiler.

3.3. “ASME” means the American Society of Mechanical Engineers, located at Two Park Avenue, New York, NY 10016-5990, and whose website is https://www.asme.org/.

3.4. “Certificate of Competency” means the document issued by the Commissioner to an inspector or special inspector who meets the commissioned inspector qualifications established by the National Board.

3.5. “Chief inspector” or “inspector” means the commissioned inspector employed by the Division of Labor.

3.6. “Commission Card” means the annual card issued to an inspector or special inspector by the National Board of Boiler and Pressure Vessel Inspectors.

3.7. “Commissioned inspector” means an inspector or special inspector who meets the education, experience, employment and examination requirements of the National Board, who is qualified to perform high-pressure steam boiler or forced flow steam generator inspections, and who has a current Commission Card issued by the National Board.

3.8. “Commissioner” means the Commissioner of the West Virginia Division of Labor, and his or her authorized representatives.

3.9. “Days” means calendar days unless otherwise specified.

3.10. “Division” means the West Virginia Division of Labor, and its authorized representatives.

3.11. “Forced flow steam generator” or “generator,” as used in this rule, means a device that uses a once-through, forced flow design to convert incoming water to steam during a single pass through a water coil.

3.12. “Hydrostatic pressure test” means an examination of a new or repaired high-pressure steam boiler to ensure that the boiler is free from leakage conducted in accordance with the National Board Inspection Code, Part 4.3.1, “Pressure Testing.”

3.13. “Inspection” means the internal and external examination of a high-pressure steam boiler or forced flow steam generator while the device is not under pressure and includes an examination of the boiler’s or generator’s design, construction, installation, condition, appurtenances, and operation. Inspection can also include the examination of a boiler or generator after repairs or alterations have been performed.

3.14. “Inspection report” means one of the National Board’s report forms, or a form that contains the same information as the appropriate National Board form, completed by an inspector or special inspector detailing the results of a high-pressure steam boiler or forced flow steam generator inspection.

3.15. “Jurisdiction,” when used in the standards incorporated by reference in Section 4 of this rule, means the State of West Virginia.

3.16. “Manufacturer’s Data Report” or “MDR” means the report submitted by a high-pressure steam boiler or forced flow steam generator manufacturer to the National Board that registers the boiler’s or generator’s compliance with the design and construction specifications in the ASME Boiler and Pressure Vessel Code and that includes the inspection results of the boiler or generator by an inspector or special inspector.

3.17. “National Board” or “Board” means the National Board of Boiler and Pressure Vessel Inspectors, located at 1055 Crupper Avenue, Columbus, OH 43229, and whose website address is https://www.nationalboard.org/.

3.18. “National Board number” means the unique number assigned to a high-pressure steam boiler or forced flow steam generator by the National Board.

3.19. “NBIC” means the National Board of Boiler and Pressure Vessel Inspectors Inspection Code.

3.20. “Owner” or “operator” means the person, firm, or corporation legally responsible for the safe installation, operation, and maintenance of a high-pressure steam boiler or forced flow steam generator.

3.21. “Permit to install” means the document issued by the Commissioner to the owner or operator of a high-pressure steam boiler or forced flow steam generator after receipt of a complete application for a permit to install a high-pressure steam boiler or forced flow steam generator.

3.22. “Permit to operate” means the document issued by the Commissioner to the owner or operator of a high-pressure steam boiler or forced flow steam generator after receipt of an inspection report confirming that the boiler or generator complies with the NBIC, Part 2, “Inspections.”

3.23. “Repair” means the work necessary to restore a high-pressure steam boiler or forced flow steam generator to a safe and satisfactory operating condition, or as further defined in the NBIC, Part 3, “Repairs and Alterations” and the ASME Boiler and Pressure Vessel Code, Section 1, “Power Boilers.”

3.24. “Special inspector” means an inspector employed by or contracted with an insurance company to inspect the company’s insured high-pressure steam boilers and forced flow steam generators and who is certified by the Commissioner as having met the minimum qualifications for boiler inspectors established by the National Board.

3.25. “Temporary use” means an installation of a high-pressure steam boiler or forced flow steam generator for a specified or limited amount of time and one that is not meant to become a permanent installation.

3.26. “WV Serial Number” means a unique identifying serial number assigned by the Division to a high-pressure steam boiler or forced flow steam generator, denoted as “W-------W”.

W. Va. Code R. § 42-3-4 Adoption of Standards

The following codes and rules are incorporated herein by reference, including periodic updates and revisions:

4.1. ASME Boiler and Pressure Vessel Code, or “BPVC,” Section 1, “Power Boilers.”

4.2. The National Board’s Recommended Administrative Boiler and Pressure Vessel Safety Rules and Regulations (NB-132), Part I, “Definition of Terms,” excluding the definitions of the Act, the Commissioner, the chief inspector, the deputy inspector, the special inspector and lined potable water heater, and all definition references to pressure vessels, nuclear components, nuclear power plants and nuclear systems, and repair or replacement of a nuclear component.

4.3. The following sections in the National Board’s Recommended Administrative Boiler and Pressure Vessel Safety Rules and Regulations (NB-132), Part II, “Administration:”

4.3.a. Section 1, “Minimum Construction Standards for Boilers or Other Pressure-Retaining Items,” with the exception of all references to pressure vessels and nuclear components;

4.3.b. Section 2, “Frequency of Inspections of Boilers and Pressure Vessels,” subsections A and G only, but substituting the reference to 3 years with 1 year;

4.3.c. Section 6, “Certificate of Competency and Identification Card,” with the exception of the references to fees for the issuance of certificate and identification cards;

4.3.d. Section 7, “Conflict of Interest;”

4.3.e. Section 8, “Inspection Reports to Be Submitted by Inspectors,” with the exception of subsection C and in subsection D, substitute “30 days” with 10 days;”

4.3.f. Section 9, “Notification to Chief Inspector,” with the exception of references to pressure vessels and nuclear components;

4.3.g. Section 10, “Special Inspectors to Notify Chief Inspector of Unsafe Boilers,” with the exception of references to pressure vessels and nuclear components;

4.3.h. Section 11, Owner-User Inspection Organizations;”

4.3.i. Section 12, “Defective Conditions Disclosed at Time of External Inspection,” with the exception of references to pressure vessels and nuclear components;

4.3.j. Section 13, “Owner or User to Notify Chief Inspector of Accident,” with the exception of references to pressure vessels and nuclear components;

4.3.k. Section 15, “Stamping/Restamping of Boilers, Pressure Vessels or Other Pressure-Retaining Items,” with the exception of references to nuclear components;

4.3.l. Section 16, “Penalty for Operation of Unsafe Boilers, Pressure Vessels, or Nuclear Components,” with the exception of references to nuclear components;

4.3.m. Section 17, “Condemned Boilers, Pressure Vessels and Nuclear Components,” with the exception of references to nuclear components;

4.3.n. Section 18, “Reinstallation of Boilers, Pressure Vessels, or Nuclear Components Moved Outside the Jurisdiction,” with the exception of references to pressure vessels and nuclear components;

4.3.o. Section 19, “Installation, Operation, Sale, or Offering for Sale of Nonstandard Boilers, Pressure Vessels, or Nuclear Components,” with the exception of references to pressure vessels and nuclear components;

4.3.p. Section 20, “Installation of Used or Secondhand Boilers, Pressure Vessels, or Nuclear Components,” with the exception of references to pressure vessels and nuclear components;

4.3.q. Section 21, “Reinstalled Boilers, Pressure Vessels, or Nuclear Components,” with the exception of references to pressure vessels and nuclear components;

4.3.r. Section 22, “Working Pressure for Existing Installations,” with the exception of references to pressure vessels and nuclear components;

4.3.s. Section 23, “Repairs and Alterations to Boilers and Pressure Vessels,” with the exception of references to pressure vessels;”

4.3.t. Section 24, “Repairs to Pressure Relief Valves,” subsection A only, with the exception of references to pressure vessels and nuclear components;

4.3.u. Section 26, “Riveted Patches,” but replacing the reference to the 1973 edition of the National Board Inspection Code with the 2019 edition;

4.3.v. Section 27, “Safety Appliances;”

4.3.w. Section 28, “Application of Serial Numbers,” subsection A only, with the exception of references to pressure vessels and nuclear components; and

4.3.x. Section 29, “Variations”.”

4.4. The National Boards’ Recommended Administrative Boiler and Pressure Vessel Safety Rules and Regulations (NB-132), Part III, “Existing Installation,” all of Section 1, “Power Boilers,” but replacing references to the “Board” with the “Commissioner;”

4.5. The following Parts of the NBIC:

4.5.a. Part 1, “Installation;”

4.5.b. Part 2, “Inspection;”

4.5.c. Part 3, “Repairs and Alterations;” and

4.5.d. Part 4, “Pressure Relief Devices.”

W. Va. Code R. § 42-3-5 Application for a Permit to Install a High-Pressure Steam Boiler; Issuance of a Permit to Install a High-Pressure Steam Boiler or Forced Flow Steam Generator

5.1. Prior to the installation of a high-pressure steam boiler or forced flow steam generator in West Virginia, the owner or operator shall submit an application for a permit to install at least 15 days before the intended date of installation and shall provide all information as the Commissioner may require on a form supplied by the Division.

5.2. If, upon review by the Commissioner, the application is complete and contains the required information, he or she shall issue a permit to install the high-pressure steam boiler or forced flow steam generator.

5.3. If, upon review by the Commissioner, the application is incomplete, the Division shall notify the applicant and specify what information is still needed before a permit to install can be issued.

W. Va. Code R. § 42-3-6 Application for a Permit to Install a High-Pressure Steam Boiler or Forced Flow Steam Generator for Temporary Use; Issuance of a Permit to Install a High-Pressure Steam Boiler or Forced Flow Steam Generator for Temporary Use

6.1. Prior to the installation of a high-pressure steam boiler or forced flow steam generator for temporary use in West Virginia, the owner or operator shall submit an application for a permit to install at least 15 days before the intended date of installation and shall provide all information as the Commissioner may require on a form supplied by the Division.

6.2. If, upon review by the Commissioner, the application is complete and contains the required information, he or she shall issue a permit to install the high-pressure steam boiler or forced flow steam generator for temporary use.

6.3. If, upon review by the Commissioner, the application is incomplete, the Division shall notify the applicant and specify what information is still needed before a permit to install can be issued.

W. Va. Code R. § 42-3-7 West Virginia Serial Numbers; Condemned Boiler Serial Number

7.1. After completion of a high-pressure steam boiler’s or forced flow steam generator’s final inspection, the Division shall assign a unique West Virginia serial number to the boiler or generator, to be placed on the boiler or generator by an inspector or special inspector in the location specified by the ASME Boiler and Pressure Vessel Code.

7.2. The high-pressure steam boiler or forced flow steam generator owner or operator shall ensure that the West Virginia serial number is visible at all times and is not covered by insulating or other material.

7.3. When an inspector or special inspector has condemned a high-pressure steam boiler or forced flow steam generator, he or she shall place a condemnation mark, denoted as “WXXXW” over the West Virginia serial number.

W. Va. Code R. § 42-3-8 Inspection Reports; Issuance of an Annual Permit to Operate a High-Pressure Steam Boiler; Issuance of a Permit to Operate a Forced Flow Steam Generator

8.1. Unless otherwise exempt under the Act, every high-pressure steam boiler and forced flow steam generator in operation in this state shall be thoroughly inspected internally and externally while not under pressure by an inspector or special inspector, as to its design, construction, installation, condition and operation.

8.1.a. An inspector or special inspector shall use the National Board’s “Report Of First Internal Inspection” form, or a substantially similar form, to document a high-pressure steam boiler’s or forced flow steam generator’s initial or first internal inspection.

8.1.b. On subsequent annual internal inspections after the first or initial inspection, an inspector or special inspector shall use the National Board’s “Report of Inspection” form, or a substantially similar form, to document a high-pressure steam boiler’s or forced flow steam generator’s internal inspection.

8.1.c. An inspector or special inspector shall promptly provide inspection reports to the Commissioner.

8.2. Upon receipt of an inspection report from an inspector or special inspector confirming the high-pressure steam boiler’s or forced flow steam generator’s compliance with the Act and this rule, the Division shall issue an invoice to the boiler’s or generator’s owner or operator.

8.3. Upon receipt of payment of the invoice, the Division shall issue a permit to operate the high-pressure steam boiler or forced flow steam generator.

8.4. A permit to operate shall specify the maximum pressure at which the high-pressure steam boiler or forced flow steam generator is allowed to operate.

8.5. A permit to operate shall include the high-pressure steam boiler’s or forced flow stream generator’s West Virginia serial number assigned by the Division.

8.6. A permit to operate a high-pressure steam boiler shall be valid for a period of 12 months from the date of issuance.

8.7. A permit to operate a forced flow steam generator shall be valid for a period of time equal to the inspection schedule established by the inspector or special inspector, not to exceed 24 months.

8.8. A high-pressure steam boiler or forced flow steam generator owner or operator shall post the permit to operate under glass in the engine or boiler room. In the case of portable boiler or generator, the owner or operator shall post the permit to operate in the office of the plant where it is located.

W. Va. Code R. § 42-3-9 Application for a 60-Day Temporary Extension of a Permit to Operate a Boiler; Issuance of a Temporary Extension of a Permit to Operate

9.1. An application for an extension of a permit’s expiration date, not to exceed 60 days, shall be in writing and may be considered by the Commissioner for good cause, such as unusual circumstances or conditions.

9.2. An application for one additional extension of a permit’s expiration date shall be in writing and may be considered by the Commissioner, for a maximum temporary extension of 120 days per year, for good cause such as unusual circumstances or conditions.

9.3. The request shall include a statement from the inspector or special inspector and an authorized party of the insurance company that insured the high-pressure steam boiler or forced flow steam generator in support of the extension.

9.4. The owner or operator of the high-pressure steam boiler or forced flow steam generator shall post the temporary extension of a permit to operate under glass in the engine or boiler room where the boiler or generator is located. In the case of portable boiler or generator, the permit to operate shall be posted in the office of the plant where it is located.

W. Va. Code R. § 42-3-10 Suspension or Revocation of a Permit to Operate; Condemnation of a High-Pressure Steam Boiler or Forced Flow Steam Generator

10.1. The Commissioner, inspector or special inspector may suspend or revoke a permit to operate when the high-pressure steam boiler or forced flow steam generator for which it was issued cannot be operated without menace to the public safety, or when the boiler or generator is not in compliance with the Act or this rule.

10.2. The suspension or revocation of a permit to operate shall continue in effect until an inspector or special inspector has determined that the high-pressure steam boiler or forced flow steam generator has been brought into compliance with the Act and this rule and until the Permit to Operate has been reinstated by the Commissioner.

10.3. The Commissioner, an inspector or special inspector shall condemn a high-pressure steam boiler or forced flow steam generator if, upon inspection, the boiler or generator is found to be in a condition in which it is unsafe to operate.

10.4. If the boiler or generator owner or operator contests the Commissioner’s condemnation, he or she may, within 5 days of receipt of notification of the condemnation, file a written appeal to the Commissioner, setting forth the reasons for contesting or objecting to the condemnation.

10.5. If the high-pressure steam boiler or forced flow steam generator owner or operator timely files an appeal, the boiler or generator shall not be operated pending the Commissioner’s review of the appeal.

10.6. Upon receipt of an appeal filed by a high-pressure steam boiler or forced flow steam generator owner or operator, the Commissioner may conduct the appeal hearing himself or herself or may designate or appoint a Division employee or a hearing examiner to conduct the appeal hearing.

10.7. The Commissioner shall cause a written Notice of Hearing to be served on the high-pressure steam boiler or forced flow steam generator owner or operator by email, by certified mail, return receipt requested, or by personal service, at least 10 days prior to the date of the hearing. The Notice of Hearing shall include the following:

10.7.a. The date, time and location of the hearing;

10.7.b. A short and plain statement regarding the reasons for the condemnation;

10.7.c. The right of the high-pressure steam boiler or forced flow steam generator owner or operator to be represented by an attorney at law licensed to practice in WV, at his or her own expense; and

10.7.d. The right to present evidence, and to examine and cross-examine witnesses.

10.8. The Commissioner shall cause the hearing to be recorded by electronic or other means so as to preserve the witnesses’ testimony.

10.9. At the conclusion of the hearing, the Commissioner shall consider the testimony and evidence introduced at the hearing.

10.10. The Commissioner shall notify the high-pressure steam boiler or forced flow steam generator owner or operator in writing within 15 days of the conclusion of the appeal hearing concerning his or her decision on the appeal of the condemnation, to be served by email by certified mail, return receipt requested, or by personal service, and shall notify the inspector regarding any appeal rights he or she may have concerning the Commissioner’s decision.

10.11. No high-pressure steam boiler or forced flow steam generator shall be operated in this state if the boiler or generator has been condemned for further use in this or any other State by an inspector or special inspector.

W. Va. Code R. § 42-3-11 Inspector Qualifications; Issuance of a Certificate of Competency; Annual Renewal; Revocation of a Certificate of Competency

11.1. No person may serve as an inspector unless he or she holds a certificate of competency issued by the Commissioner.

11.2. The inspector shall provide a copy of his or her current National Board Commission card to the Division.

11.3. An inspector shall renew his or her certificate of competency annually and provide a copy of his or her most recent National Board Commission card.

11.4. The Commissioner may revoke a certificate of competency for the following reasons:

11.4.a. the falsification of any report of any inspection;

11.4.b. the failure to renew his or her National Board Commission;

11.4.c. the revocation of his or her National Board Commission; or

11.4.d. other good cause concerning the inspector’s competence or credibility.

11.5. The Commissioner shall notify the inspector in writing by email, by certified mail, return receipt requested, or by personal service concerning the effective date of the revocation of his or her certificate of competency, including the reasons for the revocation, and his or her right to appeal the revocation.

11.6. An inspector whose certificate of competency has been revoked may file a written appeal to the Commissioner within 15 days of receipt of the notice of revocation.

11.7. Upon receipt of an appeal filed by an inspector, the Commissioner may conduct the appeal hearing himself or herself or may designate or appoint a Division employee or a hearing examiner to conduct an appeal hearing.

11.8. The Commissioner shall cause a written Notice of Hearing to be served on the inspector by email, by certified mail, return receipt requested, or by personal service, at least 10 days prior to the date of the hearing. The Notice of Hearing shall include the following:

11.8.a. The date, time and location of the hearing;

11.8.b. A short and plain statement regarding the reasons for the revocation;

11.8.c. The right of the inspector to be represented by an attorney at law licensed to practice in WV, at his or her own expense; and

11.8.d. The right to present evidence, and to examine and cross-examine witnesses.

11.9. The Commissioner shall cause the hearing to be recorded by electronic or other means so as to preserve the witnesses’ testimony.

11.10. At the conclusion of the hearing, the Commissioner shall consider the testimony and evidence introduced at the hearing.

11.11. The Commissioner shall notify the inspector in writing within 15 days of the conclusion of the appeal hearing concerning his or her decision on the appeal of the revocation, to be served by email by certified mail, return receipt requested, or by personal service, and shall notify the inspector regarding any appeal rights he or she may have concerning the Commissioner’s decision.

W. Va. Code R. § 42-3-12 Special Inspector Application for a Certificate of Competency; Issuance of a Certificate of Competency; Fees; Annual Renewal; Revocation of a Certificate of Competency

12.1. No person may serve as a special inspector unless he or she holds a certificate of competency issued by the Division.

12.2. A person desiring to obtain a certificate of competency from the Division shall submit a written application on a form furnished by the Division, accompanied by a $35 fee.

12.3. The applicant shall provide all information specified on the application form, and any failure to provide the required information shall cause the application to be rejected.

12.4. The applicant shall provide a copy of his or her current National Board Commission card with the application.

12.5. A special inspector shall renew his or her application for a certificate of competency annually, accompanied by a $35 fee and his or her most recent National Board Commission card.

12.6. A Certificate of Competency may be revoked by the Commissioner for the following reasons:

12.6.a. the falsification of any report of any inspection;

12.6.b. the failure to renew his or her Nation al Board Commission;

12.6.c. the revocation of his or her National Board Commission; or

12.6.d. other good cause concerning the inspector’s or special inspector’s competence or credibility.

12.7. The Commissioner shall notify the special inspector in writing by email, by certified mail, return receipt requested, or by personal service concerning the effective date of the revocation of his or her certificate of competency, including the reasons for the revocation, and his or her right to appeal the revocation.

12.8. A special inspector whose certificate of competency has been revoked may file a written appeal to Commissioner within 15 days of receipt of the notice of revocation.

12.9. Upon receipt of an appeal filed by a special inspector, the Commissioner may conduct the appeal hearing himself or herself or may designate or appoint a Division employee or a hearing examiner to conduct an appeal hearing.

12.10. The Commissioner shall cause a written Notice of Hearing to be served on the special inspector by email, by certified mail, return receipt requested, or by personal service, at least 10 days prior to the date of the hearing. The Notice of Hearing shall include the following:

12.10.a. The date, time and location of the hearing;

12.10.b. A short and plain statement regarding the reasons for the revocation;

12.10.c. The right of the special inspector to be represented by an attorney at law licensed to practice in WV, at his or her own expense; and

12.10.d. The right to present evidence, and to examine and cross-examine witnesses.

12.11. The Commissioner shall cause the hearing to be recorded by electronic or other means so as to preserve the witnesses’ testimony.

12.12. At the conclusion of the hearing, the Commissioner shall consider the testimony and evidence introduced at the hearing.

12.13. The Commissioner shall notify the special inspector in writing within 15 days of the conclusion of the appeal hearing concerning his or her decision on the appeal of the revocation, to be served by email by certified mail, return receipt requested, or by personal service, and shall notify the special inspector regarding any appeal rights he or she may have concerning the Commissioner’s decision.

W. Va. Code R. § 42-3-13 Owner or Operator Responsibilities; Insurance Company Responsibilities; Termination of Insurance Coverage

13.1. The owner or operator of a high-pressure steam boiler or forced flow steam generator shall prepare the boiler or generator for an internal inspection or hydrostatic pressure test when necessary.

13.2. If the owner or operator of a high-pressure steam boiler or forced flow steam generator has not properly prepared the device for internal inspection, the inspector or special inspector may decline to perform the inspection and the Division may withhold the permit to operate until the boiler or generator has been properly prepared and inspected.

13.3. The owner or operator shall promptly notify the Division when a high-pressure steam boiler or forced flow steam generator is moved from one location to another. The notification shall include the boiler’s or generator’s West Virginia serial number, the original location and the new location.

13.4. An insurance company shall immediately notify the Division of all insurance policy coverage changes to a high-pressure steam boiler or forced flow steam generator, to include the policy number being changed, the policy’s expiration or cancellation date, the issuance of a new policy of coverage, including the new policy number and effective dates of the coverage.

13.5. If, after inspection by a special inspector, an insurance company refuses coverage, the company shall immediately notify the Division together with a list of the defects.

13.6. If an insurance company ceases or otherwise stops coverage on an insured high-pressure steam boiler or forced flow steam generator, the company shall immediately notify the Commissioner and the owner or operator of the device.

13.7. The owner or operator of a high-pressure steam boiler or forced flow steam generator shall permit inspectors and special inspectors to enter the premises, during reasonable hours, where a boiler or generator is being built, is being installed or is being operated, in order to ascertain whether the boiler or generator is being built, installed and operated in accordance with the Act and this rule.

W. Va. Code R. § 42-3-14 Fees

14.1. The Commissioner shall not issue a permit to operate or install a high-pressure steam boiler or forced flow steam generator, or an extension of a permit to operate, until all applicable fees have been paid to the Division.

14.2. Fees for the inspection of a high-pressure steam boiler or forced flow steam generator by a Division inspector:

14.2.a. Boilers with less than 100 square feet of heating surface: $100.00

14.2.b. Boilers with 101 to 500 square feet of heating surface: $150.00

14.2.c. Boilers with more than 500 square feet of heating surface: $175.00

14.2.d. Forced flow steam generator: $175.00

14.3. Fee for processing an inspection report for an insurance company: $35.00

14.4. Fee for issuing a permit to operate a steam boilers or generator: $35.00

14.5. Fee for issuing a Certificate of Competency for a special inspector: $35.00

14.6. Fee for issuing an annual permit to operate a hobby boiler: $20.00

14.7. Fee for reviewing an application for an extension of a permit to operate a steam boiler and issuing an extension of the permit: $70.00.

14.8. Fee for reviewing an application for a permit to install a steam boiler or an application for permit to install a steam boiler for temporary use and issuing the permit to install: $70.00.

42 CSR 3 42 CSR 3 [Type here] [Type here] [Type here]

Series 05 Wage Payment and Collection

W. Va. Code R. § 42-5-1 General

1.1. Scope. -- This rule is for the enforcement of all matters concerning wage payment and collection pursuant to W. Va. Code §21-5-1 et seq.

1.2. Authority. -- W. Va. Code §§21-5-9 and 21-5-13.

1.3. Filing Date. -- April 12, 2019.

1.4. Effective Date. -- July 1, 2019.

1.5. Sunset Date. This rule shall terminate and have no further force or effect on July 1, 2029.

W. Va. Code R. § 42-5-2 Application and Enforcement

2.1. Application. This rule applies to the West Virginia Division of Labor and all persons, employers and employees governed or otherwise within the purview of the Wage Payment and Collection Act, W. Va. Code §21-5-1 et seq.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-5-3 Definitions

3.1. The “Act” or “the law,” for purposes of this rule, means the Wage Payment and Collection Act, W. Va. Code §21-5-1 et seq.

3.2. “Assignment of wages” or “wage assignment” means a voluntary written document that complies with the requirements set forth in W. Va. Code §21-5-3(e) authorizing the transfer of a portion of an employee’s net wages to another.

3.3. “Break” when authorized by an employer, means a rest period of short duration, up to 20 minutes, that must be counted as hours worked.

3.4. “Claimant” means an employee or former employee who submits a request for assistance to the Division, alleging that he or she is owed unpaid wages, or alleging any other violation of the Act or this rule.

3.5. “Days” means calendar days, unless otherwise stated.

3.6. “Director” means the director of the Wage and Hour Section, or his or her designee.

3.7. “Division” means the West Virginia Division of Labor.

3.8. “Earned wages” means wages that are owed to an employee for all hours worked.

3.9. “Employ” means to hire, permit, or suffer to work.

3.10. “Final order” or “Commissioner’s final order” means an order issued by the Commissioner which the employer either does not appeal pursuant to W. Va. Code §29A-5-4, or which has been upheld after the employer has exhausted his or her appeal rights pursuant to W. Va. Code §§29A-5-4 and 29A-6-1.

3.11. “Garnishment order” or “wage garnishment order” refers to a legal procedure in which an employee’s wages are required by court order to be withheld by an employer for the payment of a debt.

3.12. “Hours worked” means the time an employee is under the control and direction of his or her employer, and includes the compensable time provisions of §42-8-11.

3.13. “Illegal deduction” means a deduction made by an employer from an employee’s wages without a valid assignment of wages, without complying with the provisions of W. Va. Code §21-5-4(f) concerning employer provided property, without a valid wage garnishment order, or without an employee’s written authorization for union or club dues, pension plans, a payroll savings plan, charitable contributions, insurance, a hospitalization plan, or plans of a similar kind.

3.14. “Net wages” means an employee’s wages after deductions are taken out from an employee’s gross wages.

3.15. “Pay period” means the scheduled number of days for which an employee is paid, which may or may not coincide with the day an employee is paid.

3.16. “Request for Assistance” or “RFA” means a form provided by the Division and submitted by a claimant alleging that he or she is owed unpaid wages or alleging any other violation of the Act or this rule.

3.17. “Status conference” means an employer’s informal meeting with the Division regarding the status of the Division’s investigation into an alleged violation of the Act or this rule.

3.18. “Wages,” for state employees, includes the incremental salary increases pursuant to W. Va. Code §5-5-2.

3.19. “Work week” means a regular recurring period of 168 hours made up of 7 consecutive 24 hour periods.

W. Va. Code R. § 42-5-4 Employer Responsibilities; Required Employee Notifications; Required Posting of the Wage and Hour Abstract

4.1. An employer shall establish a work week, a pay period, and a pay day, and shall notify employees in writing or by a posted notice accessible to all employees of the employer.

4.2. When an employer changes an employee’s rate of pay, pay period, place or method of payment, time of payment, or any other term of employment, the employer shall furnish a written notice to the affected employee at least 1 full pay period prior to the effective date of the change.

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.

W. Va. Code R. § 42-5-5 Contents of Employee Records

5.1. An employer shall maintain payroll and employment records during an employee’s employment and for a period of not less than 5 years from the date each record was created.

5.2. An employee’s written record shall contain the following information:

5.2.a. The employee’s name in full, or identifying symbol or number in place of a name on any record;

5.2.b. The employee’s home address;

5.2.c. The employee’s date of birth, if under 18;

5.2.d. The employee’s occupation, title or job classification;

5.2.e. The employee’s rate of regular pay;

5.2.f. The hours worked each workday by the employee and the total hours worked each workweek by the employee; and

5.2.g. Documentation of the employee’s legal status or authorization to work, as required by W. Va. Code §21-1B-1 et seq.

W. Va. Code R. § 42-5-6 Place For Keeping Employee Records

6.1. An employer shall keep the employee records required by the Act and this rule in a safe, secure and accessible location at the place or places of employment, or at one or more established central record-keeping offices where employee records are customarily maintained.

6.2. Employee records shall be open to the Division for inspection, examination, copying, photographing or otherwise reproducing, in order to ensure compliance with the Act and this rule.

6.3. When employee records are maintained at a central record-keeping office, other than in the place or places of employment, upon receipt of written notice from the Commissioner, an employer shall make employee records available to the Division within 72 business hours.

W. Va. Code R. § 42-5-7 Payment of Wages; Itemized Statement of Earnings

7.1. An employer shall pay all earned wages due to an employee on the employer’s scheduled payday.

7.2. The scheduled payday for a railroad company shall occur within the time periods specified in W. Va. Code §21-5-2. The scheduled payday for every employer other than a railroad company shall occur at least twice each month with no more than 19 days between paydays, unless otherwise authorized by special agreement as provided in section 8 of this rule.

7.3. An employer shall furnish an itemized statement of earnings to each employee on the employer’s scheduled payday, to include the employee’s hourly rate of pay or salary, the number of hours for which the employee is being paid, the overtime rate of pay, if applicable, bonus and incentive pay, if applicable, and itemized deductions. The employer shall furnish each employee with either a paper itemized statement or an electronic itemized statement, provided the employee has direct, immediate and convenient electronic access to it.

7.4. If an employer’s regular payday is on specific dates of the month, and the employer is closed for business on that date, the employer shall pay the employees on the day immediately preceding the regular payday when the employer is open for business.

W. Va. Code R. § 42-5-8 Petition For Special Agreement Concerning Payday Schedule or Frequency

8.1. An employer who wishes to establish regular paydays other than at least twice every month with no more than 19 days between paydays, as required by W. Va. Code §21-5-3, shall submit a written petition to the Commissioner, setting forth the reasons for the request and the proposed alternative payday schedule or plan.

8.2. An employer shall include postage paid envelopes addressed to each employee who would be affected by the proposed alternative payday schedule or plan with the petition.

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

8.4. The Commissioner may hold a hearing on the petition for the proposed alternative payday schedule.

8.4.a. The Commissioner shall give at least 20 days written notice of the time and place of the hearing to all employees who would be affected by the proposed alternative payday schedule or plan.

8.4.b. Employees shall have the opportunity to submit written comments in lieu of attending the hearing.

8.5. Following the submission of the petition, the responses of the affected employees, and the holding of the hearing, if any, the Commissioner shall issue a written decision to the employer, either approving, suggesting modifications to, or denying the proposed alternative schedule or plan.

8.6. The Commissioner may modify the terms of the requested relief and may also later revoke the approved payday schedule or plan if it interferes with the enforcement of the Act or this rule.

8.7. An employer shall comply with the Act and this rule during the Commissioner’s consideration of the petition, and the submission of a petition or the Commissioner’s delay in acting upon the petition does not relieve an employer from any obligations to comply with the payday requirements set forth in W. Va. Code §21-5-3 and this rule.

W. Va. Code R. § 42-5-9 Assignment Of Wages; Wage Garnishment Order

9.1. An employer shall have a written assignment of wages that conforms to the requirements set forth in W. Va. Code §21-5-3(e) on the form approved by the Commissioner prior to making any deductions, other than authorized statutory deductions, from an employee’s wages.

9.2. For employees other than state employees, three-fourths or 75% of an employee’s net wages shall at all times be exempt from assignment.

9.3. If a state employee has been overpaid his or her wages, the employee may voluntarily enter into a written wage assignment to repay the overpayment. One-fourth or 25% of a state employee’s net wages shall at all times be exempt from assignment.

9.4. If an employer is served with a wage garnishment order payable from an employee’s wages, and if the garnished amount exceeds 25% of the non-state employee’s net wages, or if the garnished amount exceeds 75% of the state employee’s net wages, the employer shall not enter into an assignment of wages with the employee while the garnishment order is in effect, and shall immediately terminate any on-going or active assignment of wages.

9.5. Authorized deductions for amounts required or allowed by law to be withheld, such as union or club dues, pension plans, payroll savings plans, credit unions, charities, or a hospitalization or medical insurance plan, are not required to be in any prescribed form.

9.6. If an employer deducts an authorized amount from an employee’s wages pursuant to a valid assignment of wages, a valid written authorization or a valid wage garnishment order, but fails to pay that amount to the designated creditor or authorized plan, the deduction is an illegal deduction from the employee’s wages.

W. Va. Code R. § 42-5-10 Employee Claim for Unpaid Wages or Other Violation of the Act; Investigation by the Division

10.1. An employee or former employee who reasonably believes that he or she is owed unpaid wages or that his or her employer has violated any provision of the Act or this rule, and who wants the Division to investigate his or her claim, shall submit a request for assistance (“RFA”) to the Director, and provide the information and documents in support of the claim, including the following:

10.1.a. The claimant’s complete contact information, including updates when applicable;

10.1.b. The name, address and telephone number of the claimant’s employer;

10.1.c. The amount of wages the claimant reasonably believes is owed by the employer and why, or a statement explaining the employer’s violation;

10.1.d. A brief description of the work the claimant is performing or has performed;

10.1.e. Copies of pay stubs, work schedules, personal calendars, or other documents that support the wage claim or other violation, if the claimant has them in his or her possession;

10.1.f. If applicable to the wage claim or other violation, a complete copy of the employer’s written policies concerning the terms and conditions of employment, if the claimant has them in his or her possession; and

10.1.g. If applicable to the wage claim or other violation, a complete copy of the employer’s commissions policy, if the claimant has them in his or her possession.

10.2. The Division shall investigate the merits of the claim and shall make a determination about whether the employer has violated any provision of the Act or this rule.

10.3. The Director shall notify the employer and the claimant of the results of the investigation, including the amount of wages owed to the claimant, if any.

10.4. The employer and the claimant shall be entitled to a status conference upon request to the Director.

10.4.a. At that time, the employer and the claimant shall have the opportunity to review all records collected by the Division during its investigation relating to the wage claim with respect to all portions of the investigation that the Division has not resolved in favor of the employer.

10.4.b. Within twenty (20) days of the conclusion of the status conference, an employer or the claimant may prepare and submit a written statement and/or evidence for consideration by the Director.

10.5. If the employer acknowledges or otherwise admits that the claimant is owed wages, but fails to pay the wages owed to the claimant within a time frame specified in the written demand of the Commissioner, the Commissioner shall issue an order, setting forth findings of fact and conclusions of law regarding the wage claim.

10.5.a. The Director shall serve the employer with a copy of the Commissioner’s order, either by certified mail, return receipt requested or by personal service, and shall notify the employer of his or her right to appeal the order.

10.5.b. The Director shall provide the claimant with a copy of the Commissioner’s order.

10.6. If the employer contests the Director’s determination, the employer is entitled to an administrative hearing, which shall be held in accordance with W. Va. Code §§21-5-11, 29A-5-1 et seq. and 42 CSR 20.

10.6.a. Pursuant to the administrative hearing, the Commissioner shall issue an order, setting forth findings of fact and conclusions of law regarding the wage claim.

10.6.b. The Director shall serve the employer with a copy of the order, either by certified mail, return receipt requested or by personal service, and shall notify the employer of his or her right to appeal the order.

10.6.c. The Director shall provide the claimant with a copy of the Commissioner’s order.

Series 06 Psychophysiological Detection Of Deception Examinations, Limitations Of Use, Requirements, Licenses And Penalties

W. Va. Code R. § 42-6-1 General

1.1. Scope. -- Pursuant to the authority granted to the Commissioner of Labor in W. Va. Code §21-5-5c and in accordance with the provisions of W. Va. Code §29A-1-1 governs, clarifies and prescribe actions necessary to comply with W. Va. Code §§21-5-5a, -5b, -5c, and -5d.

1.2. Authority. -- W. Va. Code §§21-5-5c and 29A-1-1.

1.3. Filing Date. -- May 4, 2004.

1.4. Effective Date. -- June 1, 2004.

W. Va. Code R. § 42-6-2 Definitions

2.1. "Commissioner" means the Commissioner of Labor or his or her duly authorized representative.

2.2. "Internship" means a course of study in the psychophysiological detection of deception, or similar tests and the administration of the tests by a trainee registered with the Commissioner of Labor. The program shall be under the personal supervision of a licensed examiner in accordance with a course of study prescribed by the Commissioner at the commencement of the internship.

2.3. "Intern" means a person registered with the Commissioner of Labor and enrolled in an approved internship program.

2.4. "Examiner" means a person holding a current valid license issued by the Commissioner of Labor to administer psychophysiological detection of deception or other similar tests as provided in W. Va. Code §§21-5-5a, -5b, -5c, and -5d.

2.5. "License" means documented authority to practice as a psychophysiological detection of deception examiner as issued by the Commissioner of Labor.

2.6. "Employee" means an individual employed by an employer; except in the area of drugs as provided in W. Va. Code §21-5-5(b), employees have direct access to drugs, other than ordinary drugs, as defined in chapter thirty of the West Virginia Code, in their daily routine job duties in an area utilized by such employee which facilities have been approved by the West Virginia Board of Pharmacy shall be the only employees of such employer who shall be subject to psychophysiological detection of deception tests.

W. Va. Code R. § 42-6-3 License

3.1. Examination required. -- After the effective date of this rule, the Commissioner shall issue a license only those persons who have satisfactorily passed an examination and who have otherwise met and complied with the requirements of this rule and W. Va. Code §§21-5-5a, -5b, -5c and -5c.

3.2. Form of request. -- An individual applying to be examined for an examiner’s license under the provisions of this rule shall as a condition precedent to the examination furnish the Commissioner of Labor with the following:

(a) A completed application in writing on forms provided by the Commissioner, and containing the information required by the Commissioner to determine the eligibility of the applicant.

(b) A copy of the applicant's birth certificate and a recent photograph.

(c) A nonrefundable fee of one hundred dollars ($100).

(d) To qualify for a Class I license, satisfactory evidence that the applicant holds a baccalaureate degree and has graduated from a school of polygraphy accredited by the American Polygraph Association.

(e) To qualify for a Class II license, satisfactory evidence that the applicant holds an associate degree and has graduated from a school of polygraph accredited by the American Polygraph Association.

(f) Satisfactory evidence that the applicant has completed an approved internship program.

(g) Satisfactory indication that the applicant subscribes to the code of ethics and standards and principles of practice of the American Polygraph Association.

3.3. Time of request. -- Applications must comply with the requirements of Subsection 3.2 and must be submitted no later than ten (10) working days in advance of the next regularly scheduled examination in order for the applicant to receive authorization to be examined.

3.4. Authorization for examination. -- Applicants complying with Subsections 3.2 of this section and 3.3 of this section will be issued a written authorization by the commissioner acknowledging receipt of the license application fee and setting forth the time and place of the examination. The authorization also serves as evidence to the person conducting the examination that the holder is properly authorized to be examined. Applicants to be examined may be required to present further evidence of personal identification as a condition precedent to examination.

3.5. Scheduling of examination. -- The Commissioner shall prepare and offer the examination at least four (4) times each fiscal year. However, the commissioner shall not schedule an examination in any quarter in which no person has made application satisfying the requirements of Subsection 3.4. The Commissioner may schedule the examination at any additional times he or she considers necessary.

3.6. Passing grade required. -- An applicant must obtain a minimum score of seventy percent (70%) on the examination to permit the Commissioner to issue a license.

3.7. Expiration and renewal. -- The license expires on the thirtieth day of June following its issuance or renewal. The Commissioner shall reissue annually the license of any licensed examiner who qualifies and makes application for a license. A renewal fee of one hundred dollars ($100) is required for renewal. It is the individual responsibility of every license holder to contact the Commissioner and make specific request for license renewal. Licenses are not automatically renewed.

3.8. Reexamination after expiration. -- Any license not renewed in accordance with the provisions of Subsection 3.7 of this section is expired. Any expired license may be renewed without examination upon proper request to the Commissioner in the manner described in Subsection 3.7of this section: Provided, That after September 30 from the date of expiration, no expired license will be renewed until the applicant has been reexamined in accordance with this rule.

3.9. Reexamination upon failure. -- Any applicant who fails the license examination may take the test again at the next regularly scheduled time: Provided, that after the second examination the applicant shall pay an examination fee of fifty dollars ($50.00) to cover the costs for each attempt to pass the examination: Provided however, That any applicant requesting to take the examination at a time other than that time regularly scheduled by the Commissioner shall pay a separate fee of fifty dollars ($50.00).

3.10. Denial, suspension or revocation of license. -- The Commissioner may deny, suspend or revoke any license on any one or more of the following grounds:

(a) A material misstatement in the application for a license or in the application for the renewal of a license.

(b) A violation of, or aiding or abetting another in the violation of W. Va. Code §§21-5-5a, -5b, -5c, and -5d or any rule issued pursuant thereto.

(c) The licensee has been found guilty of the commission of a felony or a misdemeanor involving moral turpitude.

(d) The licensee has made any willful misrepresentation or false promises or has caused to be printed any false or misleading information for the purpose of directly or indirectly obtaining business or interns.

(e) The licensee has demonstrated unworthiness or incompetency to act as an examiner.

(f) The licensee has allowed his or her license to be used by an unlicensed person.

(g) The licensee has failed, within a reasonable time, to provide information requested by the Commissioner as a result of a formal or informal complaint to the Commissioner, which would indicate a violation of this article .

W. Va. Code R. § 42-6-4 Internship Training

4.1. Requirements to begin internship. -- An individual may begin the six (6) month internship program only if he or she:

(a) Is registered with the Commissioner as an intern;

(b) Files with the Commissioner the name and identifying information of his or her internship supervisor who must be an examiner licensed by the Commissioner;

(c) Files with the Commissioner a written statement from his or her internship supervisor agreeing to undertake the responsibility for the training and agreeing to abide by regulations and requirements adopted by the Commissioner;

(d) Obtains the Commissioner's permission to begin the internship program under the control of the proposed supervision;

(e) Is at least eighteen (18) years of age;

(f) Is a citizen of the United States;

(g) Has not been convicted of a felony or of a misdemeanor involving moral turpitude;

(h) Has not been released or discharged with other than honorable conditions from the armed services of the United States or that of any other nation; and (i) Has been graduated from a polygraph school accredited by the American Polygraph Association.

4.2. Requirements of internship training. -- The intern has met the requirements of the internship training if:

1. The licensed examiner serving as supervisor has thoroughly covered the following areas with the intern:

A. The history and development of polygraph B. The legal and ethical aspects of polygraph (1) W. Va. Code §§21-5-5a, -5b, -5c, and -5d and accompanying rules;

(2) Statements and reports;

(3) Civil rights of examinees; and (4) Examiner and professional ethics C. Physiology (1) Nervous system (2) Autonomic nervous system (a) Sympathetic nervous system (b) Parasympathetic nervous system (3) Circulatory system and the heart (4) Respiratory system (5) Effects of drugs, alcohol and illness D. Psychology (1) General (2) Abnormal (3) As applied to polygraph E. Interrogation and interviews (1) Receiving case briefing (2) Pre-test interview (3) Post-test interrogation F. Chart interpretation (1) All types of tests and responses (2) Chart making G. Question formulation and test construction (1) All types of tests (2) All types of questions (3) Semantics H. Instrumentation (1) Construction and maintenance (2) Standards of accuracy (3) Nomenclature 2. The internship program consisted of no less than one thousand forty (1,040) hours of work and instruction under the direct and close supervision of the licensed examiner approved as supervisor of the intern.

3. For the first five hundred twenty (520) hours of the internship, the supervisor was on the premises where the testing was being conducted by the intern, and was immediately available for instruction or consultation with the intern. At the end of each examination conducted by an intern, the supervisor shall have reviewed and critiqued the polygraph charts of every examination conducted by the intern, and placed his or her initials and the date of the review at the end of the chart before the results of tests provided to an employer or other person requesting the test; and A. At the end of the first five hundred twenty (520) hours of the internship, the intern may conduct tests upon approval of the supervisor without the supervisor being on the premises and immediately available, but must comply with all other requirements of this subsection.

B. The intern conducted at least fifty (50) examinations during the internship program. The Commissioner may request and require inspection and review of any or all of such charts or any other elements of the internship program at any time during the internship program.

4. If at any time a conflict arises during an internship program, either the intern or the supervisor may appeal in writing to the Commissioner for mediation of the conflict. The Commissioner may call upon any resident licensed examiner to assist in any hearings, reviews or critiques in order to resolve the conflict.

5. The intern and the supervising examiner shall report any infraction or violation of the rules which regulate the intern program to the Commissioner for appropriate action.

6. The supervising examiner shall sign a release stating that all requirements of the internship program have been met by the intern and in his or her opinion the intern is competent to be a licensed examiner before the intern will be allowed to take the license examination.

7. Supervision of interns. -- Licensed examiners shall not have more than two (2) interns under his or her supervision at any one time.

W. Va. Code R. § 42-6-5 Reciprocity

5.1. Reciprocity requirements. -- The commissioner may issue a license without examination to an applicant who is a licensee examiner under the laws of another state or territory of the United States, upon payment of a fee of one hundred dollars ($100), and the production of satisfactory proof that:

(a) The applicant is at least eighteen (18) years of age;

(b) He or she is a citizen of the United States;

(c) He or she has not been convicted of a misdemeanor involving moral turpitude or a felony;

(d) He or she has not been released or discharged with other than honorable conditions from the Armed Forces of the United States or that of any other nation;

(e) He or she has met equivalents of all educational and training requirements established by the Commissioner of Labor;

(f) The requirements for the licensing of examiners in the state or territory of the United States where the applicant is licensed, are substantially equivalent to the requirements in force in this State;

(g) The applicant had lawfully engaged in the administration of psychophysiological detection of deception examinations under the laws of the state or territory in which he or she is licensed for at least two (2) years prior to application for license in West Virginia; and (h) The other state or territory grants similar reciprocity to license holders of this State.

W. Va. Code R. § 42-6-6 Intervention; Employee Organizations

6.1. Intervention; employee organization. -- With the written consent of any individual who is or would be aggrieved by a violation or threatened violation of W. Va. Code §§21-5-5a, -5b, -5c, and -5d, any appropriate employee organization may bring civil action on behalf of the individual or may intervene in any civil action.

W. Va. Code R. § 42-6-7 Standards of Accuracy

7.1. Standards of accuracy for machines or other devices. -- Any equipment, machines or other devices used or to be used in the psychophysiological detection of deception or similar tests shall, in addition to criteria set forth in W. Va. Code §21-5-5A, be calibrated or checked for accuracy by the licensed examiner at least once every six (6) months in a manner which meets the manufacturer's specifications. A log recording the calibration shall be kept with the machine at all times and shall include the date of calibration, the specifications met, and the signature of the person performing the calibration. The psychophysiological detection of deception chart made in connection with the most recent calibration shall be kept with the log, and the chart shall contain a notation of the date, time and what action or adjustments were performed. The log and chart shall be made available to the Commissioner for examination at the examiner's business location upon request by the Commissioner.

W. Va. Code R. § 42-6-8 Conditions and Procedures for Psychophysiological Detection of Deception Examination

8.1. The minimum standards of procedure for administering psychophysiological detection of deception examinations:

(a) The examiner shall inform the prospective examinee that taking the psychophysiological detection of deception examination is a voluntary act and the examiner must obtain the written consent of the examinee to undergo examination;

(b) The examiner shall not conduct an examination on any person whom he or she believes, through observation or any other credible evidence, to be physically or psychologically unfit for the examination at that time;

(c) The examiner shall, immediately upon request of the examinee, terminate an examination in progress;

(d) The examiner shall not render a verbal or written opinion based on chart analysis, until the examinee has had a reasonable opportunity to explain any reactions to pertinent questions;

(e) The examiner shall not interrogate or conduct an examination of an examinee's sexual behavior, or ask any questions that can be construed as being sexually oriented or personally embarrassing to the examinee, regardless of marital status, unless the topic is a specific issue or unless it refers to the basic matter pertinent to the examination;

(f) The examiner shall not conduct an examination when he or she has reason to believe the examination is intended to circumvent or defy the law;

(g) The examiner shall not knowingly issue a psychophysiological detection of deception examination report which is misleading, biased or falsified in any way. Each report shall be a factual, impartial and an objective account of the pertinent information developed during the examination and the examiner's professional conclusion, based on analysis of the psychophysiological detection of deception charts;

(h) The examiner shall not conduct a psychophysiological detection of deception examination without first reviewing the issues to be covered during the examination and the general content of the questions to be asked during the examination with the examinee;

(i) The examiner shall not render a conclusive verbal or written decision, based on chart analysis, as to the truthfulness or deception of the examinee without having administered two (2) or more psychophysiological detection of deception charts covering the same relevant issue. The examiner may terminate an examination in progress at his or her own discretion when, in his or her opinion, the examinee has become physically or psychologically unfit, or has become uncooperative to the point that it would be useless to continue the examination;

(j) All questions and answers asked during a psychophysiological detection of deception examination shall be marked on the psychophysiological detection of deception charts at the appropriate place on the chart where the question was asked and the answer given. If a question sheet with numbered questions is used, the number of the asked question along with the answer given shall be noted; and the question sheet shall be attached to the psychophysiological detection of deception chart and made a part of the examinee's file. Each psychophysiological detection of deception chart should be identified as to the person being examined, the examiner, time and date of the examination and the chart number;

(k) The examiner shall not, unless professionally qualified to do so, include in any written report, any statement purporting to be a medical, legal or psychiatric opinion or which would infringe upon areas under the cognizance of professionals in these fields. The examiner may describe the appearance or behavior of the examinee, if this is pertinent to the examination, as long as the examiner refrains from offering any diagnosis which he or she is professionally unqualified to make; and (l) The examiner shall report to the Commissioner any action or misconduct on the part of another examiner which would be in violation of the provisions of W. Va. Code §§21 et seq. or the rule promulgated under the Code..

8.2. Minimum standards of conditions under which a psychophysiological detection of deception or similar test may be given are:

(a) The examinee shall be afforded privacy during the examination. The only persons other than the examiner and the examinee who may be in the same room during an examination are a registered intern and/or an interpreter if necessary because of language, hearing or speech difficulties or handicap;

(b) The examination area shall be reasonably free of noise and interruption; and within the normally acceptable temperature ranges for office work.;

(c) No video or audio recorders, telephonic or speaker devices or other devices shall operate during the examination to record or broadcast any elements of the examination except the record of the psychophysiological detection of deception chart; and (d) No two-way mirrors or any other devices shall be used for observation of the examination by any persons outside the examination room.

42CSR6

42CSR6

Series 08 Minimum Wage, Maximum Hours, and Overtime Compensation

W. Va. Code R. § 42-8-1 General

1.1. Scope. -- This rule sets forth criteria for employer and employee exemptions, determination of compensable time, employer credits and all other matters concerning minimum wages, maximum hours, and overtime compensation pursuant to the Minimum Wage and Maximum Hours Standards for Employees Act, W. Va. Code §21-5C-1 et seq.

1.2. Authority. -- W. Va. Code §21-5C-1(h), §21-5C-4, and §21-5C-6(a).

1.3. Filing Date. -- March 29, 2024.

1.4. Effective Date. -- May 1, 2024.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2029.

W. Va. Code R. § 42-8-2 Application and Enforcement

2.1. This rule applies to all persons, employers, and employees governed or otherwise within the purview of the Minimum Wage and Maximum Hours Standards for Employees Act, W. Va. Code §21-5C-1 et seq.

2.2. Pursuant to W. Va. Code §21-5C-1(e), the provisions of this rule relating to maximum hours and overtime compensation are not enforceable against or applicable to any individual, partnership, association, corporation, person or group of persons, or similar unit if 80% of the persons employed by him or her are subject to any federal act relating to maximum hours and overtime compensation.

2.3. Enforcement. The enforcement of this rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-8-3 Definitions

3.1. “Act” means the Minimum Wage and Maximum Hours Standards for Employees Act, W. Va. Code §21-5C-1 et seq.

3.2. “Agriculture” means farming in all its branches and among other things includes the cultivation and tillage of the soil, dairying, the production, cultivation, growing and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in the Agricultural Marketing Act of 1946, 12 U.S.C. § 1141j), the raising of livestock, bees, fur-bearing animals, or poultry, and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm as an incident to or in conjunction with such farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market.

3.3. “Bona fide sleep period,” for an employee who is on duty for 24 or more consecutive hours, means a regularly scheduled time period of eight hours, provided that the employer furnishes adequate sleeping quarters for the employee, during which the employee can usually enjoy a night’s sleep.

3.4. “Claimant” means an employee or former employee who submits a request for assistance to the Division of Labor, alleging that he or she is owed unpaid minimum wages, overtime wages, or alleging any other violation of the Act or this rule.

3.5. “Commission” means a sum of money paid by an employer to an employee when the employee performs or completes a certain task, such as the selling of a specified amount of goods or services, or for performing a specified service for the employer.

3.6. “Compensable time” means the time an employer requires, permits, or suffers an employee to work and for which the employee must be paid.

3.7. “Customarily and regularly” means work normally performed during every workweek, but does not include isolated or one-time tasks.

3.8. “Customarily recognized department or subdivision” means a unit within an employer’s organization with permanent status and functions.

3.9. “Directly related to management or general business operations,” as that term is used in 8.11.2 of this rule, means work performed by an employee that is directly related to assisting with the running or servicing of an employer’s business or the business of an employer’s customer, as distinguished, for example, from working on a manufacturing production line or selling a product in a retail or service establishment. Work directly related to management or general business operations includes, but is not limited to, work in functional areas such as tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procurement, advertising, marketing, research, safety and health, personnel management, human resources, employee benefits, labor relations, public relations, government relations, computer network, internet and database administration, legal and regulatory compliance, and similar activities.

3.10. “Director” means the director of the Division of Labor Wage and Hour Section and his or her authorized representatives.

3.11. “Discretion and independent judgment” means the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The phrase “discretion and independent judgment” must be applied in light of all the facts involved in a particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has the authority to formulate, affect, interpret, or implement an employer’s management policies or operating practices or the management policies or operating practices of an employer’s customer; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects business operations to a substantial degree, even if the employee’s assignments are related to the operation of a particular segment of the business; whether the employee has the authority to commit the employer in matters that have significant financial impact; whether the employee has the authority to waive or deviate from established policies and procedures without prior approval; whether the employee has the authority to negotiate and bind the employer on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long – or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the employer in handling complaints, arbitrating disputes, or resolving grievances.

3.12. “Division” means the West Virginia Division of Labor.

3.13. “Dual job employee” means an employee who performs work as both a service, or tipped, employee and a non-service, or non-tipped, employee for one employer.

3.14. “Engaged to wait” means a period of inactivity during which an employee remains at work or on duty, is under the employer’s direction and control, is unable to use the time effectively for his or her own purposes, and the waiting is an integral part of the employee’s job.

3.15. “Exempt employee” means an employee who is not covered by the Act and this rule.

3.16. “Fee basis” means a predetermined agreed amount of compensation for a single job, regardless of the amount of time required to complete the job.

3.17. “Field of science or learning” means and includes law, medicine, theology, accounting, actuarial computation, engineering, architecture, teaching, various types of physical, chemical, and biological sciences, pharmacy, and other occupations that have a recognized professional status and are distinguishable from the mechanical arts or skilled trades where the knowledge could be of a fairly advanced type, but is not in a field of science or learning.

3.18. “Final order” or “Commissioner’s final order” means an order issued by the Commissioner of the Division which the employer either does not appeal pursuant to W. Va. Code §29A-5-4, or which has been upheld after the employer has exhausted his or her appeal rights pursuant to W. Va. Code §29A-5-4 and §29A-6-1.

3.19. “Management” generally includes, but is not limited to, activities such as interviewing, selecting, and training of employees; setting and adjusting of employees’ rates of pay and hours of work; directing the work of employees; maintaining production or sales records for use in supervision or control; appraising employees’ productivity and efficiency for the purpose of recommending promotions or other changes in employees’ status; handling employee complaints and grievances; disciplining employees; planning the work; determining the techniques to be used; apportioning the work among the employees; determining the type of materials, supplies, machinery, equipment, or tools to be used or merchandise to be bought, stocked, and sold; providing for the safety and security of the employees and property; planning and controlling the budget; and monitoring or implementing legal compliance measures.

3.20. “Matters of significance” means a level of substantial importance or consequence of the work performed.

3.21. “Non-exempt employee” means an employee who is covered by the Act and this rule.

3.22. “Non-service employee” means an employee who does not customarily receive tips or gratuities in connection with his or her work.

3.23. “On-call time” means the time an employer requires an employee to remain on, or in close proximity to, the employer’s premises so that the employee is not free to use the time as he or she wishes. If an employer only requires an employee to leave his or her contact information at home with the employer, the employee is not working “on-call.”

3.24. “Overtime” means compensation at one and one-half times a non-exempt employee’s regular rate of pay for all time worked in excess of 40 hours in the employer’s established workweek.

3.25. “Pay period” means a defined time frame established by an employer for which an employee receives a paycheck.

3.26. “Particular weight” means that an executive employee’s recommendations regarding the hiring, firing, promotion, or other changes in status of subordinate employees are frequently requested by, made to, and relied upon by the executive’s superior or higher level manager.

3.27. “Political subdivision” means and includes a county, city, township, village, school, sanitation, utility, irrigation, drainage and flood-control districts, and similar governmental entities that are created or authorized by statute.

3.28. “Primary duty” means an employee’s principal, main, major, or most important duty, as determined by the character of the employee’s job as a whole.

3.29. “Regular rate” means the compensation an employer pays to a non-exempt employee for his or her work for no more than 40 hours worked in the employer’s established workweek.

3.30. “Request for Assistance” or “RFA” means a form provided by the Division and submitted by a claimant alleging that he or she is owed unpaid wages or alleging any other violation of the Act or this rule.

3.31. “Salary” means a predetermined amount of pay that constitutes an employee’s compensation for a pay period, and which is not subject to a reduction based on the quality or quantity of work the employee performs.

3.32. “Sale” or “sell” means any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition.

3.33. “Seasonal employee” means an individual who works less than seven months in any one calendar year.

3.34. “Service employee” means an individual who customarily receives tips or gratuities in connection with his or her work.

3.35. “Status conference” means an employer’s informal meeting with the Division regarding the status of the Division’s investigation into an alleged violation of the Act or this rule.

3.36. “Volunteer” means a person who performs or offers to perform a service for an educational, charitable, religious, fraternal, public, or similar non-profit agency or organization, including public agencies, without compensation, provided that such services are not the same type of services which the individual is employed to perform for the agency or organization.

3.37. “Work day” means any continuous 24-hour period within a workweek.

3.38. “Work requiring advanced knowledge” means work that is predominantly intellectual and requires the consistent exercise of discretion and judgment.

W. Va. Code R. § 42-8-4 Establishment of a Workweek; Required Employee Notification of Changes; Minimum Wage Poster

4.1. An employer shall establish a workweek for all employees, consisting of seven consecutive work days, totaling 168 consecutive hours.

4.2. An employer may establish a workweek that begins on any day of the week and at any hour of the day.

4.3. If an employer alters an employee’s workweek, the employer shall provide the employee with at least one full pay period’s notice of the change.

4.4. The Division shall develop an abstract of the Act, and shall make it available on the Division’s website or provide it free of charge upon request.

W. Va. Code R. § 42-8-5 Employers Subject to the Minimum Wage Provisions of the Act

5.1. Employers shall be subject to the minimum wage provisions of the Act if the employer employs six or more employees during any calendar week in any one separate, distinct, and permanent location and falls into one of the following categories:

5.1.1. The State of West Virginia, its agencies, departments, and political subdivisions;

5.1.2. An individual, partnership, association, public or private corporation; or

5.1.3. A person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee.

5.2. When the Division opens an investigation or otherwise inspects an employer, the Division shall determine whether an employer is subject to the minimum wage provisions of the Act set forth in W. Va. Code §21-5C-2 and this rule according to the actual job duties performed by each employee and shall give consideration to past decisions under state and federal law.

W. Va. Code R. § 42-8-6 Employers Exempt from the Maximum Hours and Overtime Provisions of the Act

6.1. The following employers are exempts from the provisions of the Act if 80% or more of their employees are subject to any federal act relating to maximum hours and overtime compensation:

6.1.1. The State of West Virginia, its agencies, departments, and political subdivisions; and

6.1.2. An individual, partnership, association, public or private corporation, or any person or group of persons acting directly or indirectly in the interest of any employer in relation to an employee.

6.2. When the Division opens an investigation or otherwise inspects an employer, the Division shall determine whether 80% or more of an employer’s employees are subject to any federal act relating to maximum hours and overtime compensation by considering first whether the employer is a covered enterprise as defined in federal law, and then, if the employer is not a covered enterprise, by considering the actual job duties of each non-exempt employee.

W. Va. Code R. § 42-8-7 Employer Use of Employee Volunteers Prohibited

An employer may not require or permit an employee to volunteer his or her services in any activity that is a normal and regular part of the employee’s job duties.

W. Va. Code R. § 42-8-8 Employee Exemptions from Coverage of the Act

8.1. The Division shall determine whether an employee is covered by the Act and this rule based on the employee’s actual, customary, and regular job duties that he or she performs during any given workweek, and not based upon the employee’s job title.

8.2. An employee of the United States is exempt from coverage of the Act as long as he or she is directly employed by an agency or department of the federal government.

8.3. An individual who is a volunteer is exempt from coverage of the Act.

8.4. An individual who delivers newspapers, shines shoes, caddies at a golf course, or sets pins at a bowling alley is exempt from coverage of the Act.

8.5. An individual performing services for, or who is otherwise employed by, his or her parent, child, or spouse is exempt from coverage of the Act.

8.6. An individual engaged in making outside sales is exempt from coverage of the Act if he or she meets the following tests:

8.6.1. The employee is customarily and regularly engaged away from his or her employer’s place or places of business; and

8.6.2. The employee’s primary duty is in making sales, or in obtaining orders or contracts for services or for the use of facilities for which a client or customer pays consideration.

8.6.3. An individual who is training to work in outside sales but who is not independently working on his or her own is not exempt from coverage of the Act.

8.7. A learned professional employee is exempt from coverage of the Act if he or she meets the following tests:

8.7.1. The employee is compensated on a salary or fee basis at a rate equal to at least $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls: And provided further, That the salary or fee requirements of this provision do not apply to bona fide teachers or practitioners of law or medicine;

8.7.2. The employee’s primary duty is the performance of work requiring advanced knowledge;

8.7.3. The advanced knowledge is in a field of science or learning; and

8.7.4. The advanced knowledge is customarily acquired by a prolonged course of specialized intellectual instruction.

8.8. A creative professional employee is exempt from coverage of the Act if he or she meets the following tests:

8.8.1. The employee is compensated on a salary or fee basis at a rate equal to at least $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls; and

8.8.2. The employee’s primary duty is the performance of work requiring invention, imagination, originality, or talent in a recognized field of artistic or creative endeavor, such as music, writing, acting, and the graphic arts.

8.9. A computer professional employee is exempt from coverage of the Act if he or she meets the following tests:

8.9.1. The employee is compensated on a salary or fee basis at a rate equal to at least $684 per workweek, or, if the employee is compensated on an hourly basis, at a rate not less than $27.63 an hour: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls;

8.9.2. The employee is employed as a computer systems analyst, computer programmer, software engineer, or other similarly skilled worker in the computer field performing the duties described in subsection 8.9.3 of this section; and

8.9.3. The employee’s primary duty consists of the following or a combination of the following:

8.9.3.a. The application of systems analysis techniques and procedures, including consulting with users to determine hardware, software, or system functional specifications;

8.9.3.b. The design, development, documentation, analysis, creation, testing, or modification of computer systems or programs, including prototypes, based on or related to user or system design specifications; or

8.9.3.c. The design, documentation, testing, creation, or modification of computer programs related to machine operating systems.

8.10. An executive employee is exempt from coverage of the Act if he or she meets the following tests:

8.10.1. The employee is compensated on a salary basis at a rate of at least $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls;

8.10.2. The employee’s primary duty is the management of the employer’s organization, or the management of a customarily recognized department or subdivision of the organization;

8.10.3. The employee customarily and regularly directs the work of two full-time employees or the equivalent of two or more full-time employees; and

8.10.4. The employee has the authority to hire or fire other employees or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees is given particular weight.

8.11. An administrative employee is exempt from coverage of the Act if he or she meets the following tests:

8.11.1. The employee is compensated on a salary or fee basis at a rate at least equal to $684 per workweek: Provided, however, That if the rate set forth in 29 C.F.R. § 541 is greater than the rate set forth in this subsection, the higher rate controls;

8.11.2. The employee’s primary duty is the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and

8.11.3. The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

8.12. An individual employed for the purpose of on-the-job training is exempt from coverage of the Act for the duration of the training program if he or she meets the following tests:

8.12.1. The employee is enrolled in a training program that sets forth the terms and conditions for his or her training and employment, and that involves skills that are:

8.12.1.a. Customarily learned in a practical way;

8.12.1.b. Clearly identified with and commonly recognized throughout a specific industry or trade; and

8.12.1.c. Developed by participation in both classroom instruction and work experience; and

8.12.2. The training program maintains a written record of the employee’s time and progress.

8.13. A physically or mentally disabled individual is exempt from coverage of the Act if he or she is employed by a nonprofit sheltered workshop or rehabilitation program that is operated pursuant to W. Va. Code §18-10A-1 et seq. or §18-10B-1 et seq.

8.14. An individual employed in a boys or girls summer camp is exempt from coverage of the Act.

8.15. An individual who is at least 62 years old and who receives benefits from the Social Security Administration is exempt from coverage of the Act.

8.16. An individual employed in agriculture is exempt from coverage of the Act.

8.17. An individual employed as a firefighter by the State of West Virginia or one of its agencies is exempt from coverage of the Act.

8.18. An individual employed as an usher in a theater is exempt from coverage of the Act.

8.19. A student enrolled in a recognized school or college is exempt from coverage of the Act if he or she is employed for 24 hours or less during a workweek. A student who is employed for more than 24 hours during a workweek is not exempt from coverage of the Act for all hours he or she works during that workweek.

8.20. An individual who is employed by a local or inter-urban motorbus carrier is exempt from coverage of the Act.

8.21. An individual who works in sales or as a mechanic in a non-manufacturing business that sells vehicles, trailers, farm implements, or aircraft and related parts, is exempt from coverage of the Act.

8.22. An employee whose qualifications and maximum hours of service are established by the United States Department of Transportation is exempt from coverage of the Act.

8.23. An individual employed on a per diem basis by either body of the West Virginia Legislature, or by any legislative committee or joint committee, is exempt from coverage of the Act.

8.24. An individual employed as a seasonal employee by a commercial whitewater outfitter is exempt from coverage of the Act.

8.25. An individual employed as a seasonal employee by an amusement park is exempt from coverage of the Act.

W. Va. Code R. § 42-8-9 Record-keeping Requirements; Contents of Employee Records; Employee Pay Stub Information

9.1. An employer shall maintain written payroll and employment records for exempt employees as required by W. Va. Code §21-5-9.

9.2. An employer shall maintain written payroll and employment records for non-exempt employees that contain the following:

9.2.1. The employee’s full name;

9.2.2. The employee’s home address;

9.2.3. The employee’s occupational title or job classification;

9.2.4. The employee’s regular rate of pay, whether hourly, by piece rates, by commission, etc;

9.2.5. The employee’s total hours worked each workday and total hours worked each workweek;

9.2.6. The time of day and the day of the week that the employee’s workweek begins;

9.2.7. The employee’s total weekly regular wages and total overtime wages earned each pay period;

9.2.8. The employee’s itemized deductions for each pay period; and

9.2.9. The date of payment and pay period covered.

9.3. If an employer pays an employee using a piece rate schedule, a commissions schedule, or any schedule other than a regular hourly rate of pay, the employer shall include the written schedule in the employee’s payroll and employment records.

9.4. If an employer takes a tip credit, meal credit, or living quarters credit against an employee’s wages, as set forth in section 12 of this rule, the employer shall include a written record of the credits taken in the employee’s payroll and employment records.

9.5. An employer shall furnish each employee with a written pay stub for each pay period that the employee works that includes the employee’s rate of pay, overtime rate of pay, if any, the units of time or rate used to calculate his or her wages, and a statement of deductions made from his or her gross pay. If an employee consents to the direct deposit of his or her wages, the employer may furnish the pay stub electronically, by email, or by giving the employee access to a database containing his or her pay stub information.

W. Va. Code R. § 42-8-10 Place for Keeping Employee Records

10.1. An employer shall keep the employee records required by the Act and this rule in a safe, secure, and accessible location at the place or places of employment, or at one or more established central record-keeping offices where employee records are customarily maintained.

10.2. Employee records shall be open at reasonable times to the Division for inspection, examination, copying, photographing, or otherwise reproducing in order to ensure compliance with the Act and this rule.

10.3. When employee records are maintained at a central record-keeping office, other than in the place or places of employment, upon receipt of written notice from the Commissioner, an employer shall make employee records available to the Division within five business days.

W. Va. Code R. § 42-8-11 Determination of Compensable Time for Non-Exempt Employees

11.1. An employer shall include all hours worked by an employee as compensable time. An employer may exclude non-work time from compensable time.

11.2. An employer shall include as compensable time the time an employee spends changing clothes or washing, when such activities are required by law or by the employer for safety, decontamination, or production reasons.

11.3. Employee break time and meal time.

11.3.1. When an employer authorizes one or more employee break times or meal times of 20 consecutive minutes or less during a work day, the employer shall treat the break time or meal time as compensable time.

11.3.2. When an employer authorizes one or more employee break times or meal times, typically of 30 consecutive minutes or more during a work day, the employer may treat the break time or meal time as non-work time.

11.4. Employee on-call time.

11.4.1. When an employer requires an employee to be on-call, as defined in subsection 3.23 of this rule, the employer shall treat the on-call time as compensable time.

11.4.2. When an employer requires an employee to leave his or her contact information with the employer or with a person at the employee’s home, and as long as the employee is free to use the time as he or she wishes, an employer may treat the time as non-work time.

11.5. Employee on duty for extended periods of 24 or more consecutive hours.

11.5.1. If the employer and employee have an express or implied agreement regarding the employee’s scheduled meal times, break times, and bona fide sleep periods, the employer may treat the meal times and break times of 30 consecutive minutes or more and bona fide sleep periods as non-work time.

11.5.2. If the employer and employee do not have an express or implied agreement regarding the employee’s scheduled meal times, break times, and bona fide sleep periods, the employer shall include the employee’s meal times, break times, and bona fide sleep periods as compensable time.

11.5.3. When an employee’s meal time or break time is interrupted by a call to duty, the employer shall count the entire meal time or break time as compensable time.

11.5.4. When an employee’s bona fide sleep period is interrupted by a call to duty to the extent that the employee cannot get at least five hours sleep during the scheduled sleep period, the employer shall count the entire sleep period as compensable time.

11.6. Employee engaged to wait. If an employee has been engaged to wait by an employer, the employer shall include the time the employee is engaged to wait as compensable time.

11.7. Employee attendance or presentation at a training session, meeting, or lecture.

11.7.1. If an employer requires an employee to attend or to present material at a training session, meeting, or lecture, the employer shall include as compensable time the time the employee spends preparing for and attending the training session, meeting, or lecture, including travel time as set forth in subsections 11.8 and 11.9 of this section.

11.7.2. If an employee chooses on his or her own to attend or to present material at a training session, meeting, or lecture, the employer may treat as non-work time the time the employee spends preparing for and attending the training session, meeting, or lecture, including travel time as set forth in subsections 11.8 and 11.9 of this section.

11.8. Travel time when no overnight stay is required by the employer. If an employer requires an employee to travel when no overnight stay is required, the employer shall include the following as compensable time:

11.8.1. The time the employee spends traveling away from and returning to the employee’s assigned work location; and

11.8.2. The time the employee spends traveling to perform his or her job assignments and responsibilities.

11.9. Travel time when an overnight stay is required. If an employer requires an employee to travel when an overnight stay away from the employee’s home is authorized, the employer shall include the following as compensable time:

11.9.1. The time the employee spends traveling during his or her normal work hours on any day of the week, including days when the employee is not normally scheduled to work, such as Saturday or Sunday; and

11.9.2. The time the employee spends traveling either before or after his or her normal work hours on any day of the week, including days when the employee is not normally scheduled to work, such as Saturday or Sunday, except for the time that the employee spends as a passenger in an automobile or taxi, or on an airplane, train, boat, or bus. If the employee is performing work duties required by the employer while he or she is a passenger in an automobile or taxi, or on an airplane, train, boat, or bus, the employer shall treat this time as compensable time.

W. Va. Code R. § 42-8-12 Criteria for Determining Employer Credits Toward the Minimum Hourly Wage; No Credit for Uniforms

12.1. Tip credit.

12.1.1. An employer shall be entitled to take a tip credit equal to 70% of the minimum wage for all hours worked by a service employee, as long as the service employee receives tips or gratuities equal to at least 70% of the current minimum wage for all hours worked.

12.1.2. When a service employee spends more than 20% of his or her time during a workweek performing duties for which he or she does not receive tips, such as cleaning or setting tables, making coffee, etc., an employer shall pay the employee at least the full minimum wage, without taking a tip credit, for the time the employee spends performing such duties.

12.1.3. An employer shall be entitled to take a tip credit equal to 70% of the minimum wage for all hours worked by a dual job employee as a service employee, as long as the employee receives tips or gratuities equal to at least 70% of the current minimum wage.

12.1.4. An employer shall pay a dual job employee at least the full minimum wage, without taking a tip credit, for all hours worked by the employee as a non-service employee.

12.1.5. In order to take the tip credit, an employer shall have written tip records completed by the employee and, in addition to the tip records, an employer shall have a record of the time worked by a dual job employee as a service employee.

12.1.5.a. The employee’s report of tips shall specify the time period in which the tips were received, the amount of cash tips received, the amount of credit or debit card tips received, the amount of tips paid out, and the amount of net tips retained by the employee. The employee shall sign and date the report.

12.1.5.b. An employee may use IRS Form 4070, “Employee’s Report of Tips to Employer,” IRS Form 4070A, “Employee’s Daily Record of Tips,” or any other form that contains the information required by subsection 12.1.5.a of this section.

12.1.6. An employer shall not be entitled to take a tip credit for a non-service employee.

12.1.7. If an employer taking a tip credit permits tip-sharing or tip pooling, the employer shall divide the shared or pooled tips among only service employees and dual job employees working as service employees, and shall ensure that the employees individually document the amount of tips paid out.

12.1.8. An employer taking a tip credit shall not be entitled to receive any shared or pooled tips.

12.2. Meal credit.

12.2.1. When an employer makes meals available to an employee, if an employee completes a work day of at least eight hours worked and if the employee eats an available meal, an employer may, without a written wage assignment, deduct $4 per day as a meal credit from the employee’s wages.

12.2.2. If an employee completes a work day of less than eight hours but eats an available meal, an employer may, without a written wage assignment, deduct fifty cents ($.50) per hour as a meal credit from the employee’s wages.

12.2.3. An employer shall not deduct a meal credit if an employee does not eat a meal.

12.3. Living quarters credit.

12.3.1. When living quarters are a compulsory condition of employment, an employer shall provide adequate and habitable living quarters, which includes heat, light, toilet facilities, hot and cold running potable water, and space for cooking, sleeping, and bathing.

12.3.2. The employer may deduct 33% of the hourly minimum wage from the employee’s wages as a living quarters credit.

12.4. Uniforms. When an employer requires an employee to wear a uniform, the employer may not take a credit against the employee’s wages for the cost of the uniforms or their laundering.

W. Va. Code R. § 42-8-13 Employee Claim for Unpaid Wages or Other Violation of the Act; Investigation by the Division

13.1. An employee or former employee who reasonably believes that he or she has been paid in violation of any provision of the Act or this rule, and who wants the Division to investigate his or her claim, may submit a request for assistance to the Division, and provide the Division with the necessary information and documents in support of such claim, including the following:

13.1.1. The claimant shall provide his or her complete contact information, including updates when applicable;

13.1.2. The claimant shall provide the name, address, and telephone number of his or her employer;

13.1.3. The claimant shall provide the amount of wages he or she reasonably believes the employer owes and why, or a statement explaining the employer’s alleged violation;

13.1.4. The claimant shall provide a brief description of the work he or she is performing or has performed;

13.1.5. The claimant may provide copies of pay stubs, work schedules, personal calendars, or other documents that support the alleged violation, if the claimant has these in his or her possession;

13.1.6. If applicable to the wage claim or other violation, the claimant shall provide a complete copy of the employer’s written policies concerning the terms and conditions of employment, if the claimant has these in his or her possession; and

13.1.7. If applicable to the wage claim or other violation, the claimant shall provide a complete copy of the employer’s commissions policy, if the claimant has these in his or her possession.

13.2. The Division shall investigate the merits of the claim or violation and shall make a determination regarding whether the employer has violated any provision of the Act or this rule.

13.3. The Division shall notify the employer and the claimant of the results of its investigation, including the amount of wages owed to the claimant, if any.

13.4. The employer shall be entitled to a status conference upon request to the Division.

13.4.1. At that time, the employer shall have the opportunity to review all records collected by the Division during its investigation with respect to all portions of the investigation that the Division has not resolved in favor of the employer.

13.4.2. Within 20 days of the conclusion of the status conference, an employer may prepare and submit a written statement and/or evidence for consideration by the Division.

13.5. If the employer acknowledges or otherwise admits that the claimant is owed wages, but fails to pay the wages owed to the claimant within a time frame established by the Commissioner, the Commissioner shall issue an order, setting forth findings of fact and conclusions of law regarding the wage claim.

13.5.1. The Division shall serve the employer with a copy of the Commissioner’s order, either by certified mail, return receipt requested, or by personal service, and shall be notified of his or her right to appeal the order.

13.5.2. The Division shall provide the claimant with a copy of the Commissioner’s order.

13.6. If the employer contests the Division’s determination, the employer shall be entitled to an administrative hearing, which shall be held in accordance with W. Va. Code §29A-5-1 et seq., and 42 CSR 20.

13.6.1. Pursuant to the administrative hearing, the Commissioner shall issue an order, setting forth findings of fact and conclusions of law regarding the wage claim.

13.6.2. The Division shall serve the employer with a copy of the order, either by certified mail, return receipt requested, or by personal service, and shall be notified of his or her right to appeal the order.

13.6.3. The Division shall provide the claimant with a copy of the Commissioner’s order.

13.6.4. Any person adversely affected by the Commissioner’s order may appeal the order to the Intermediate Court of Appeals as provided in W. Va. Code §51-11-1 et seq.

W. Va. Code R. § 42-8-14 Claimant’s Responsibility to Enforce the Commissioner’s Final Order for Wages Owed

14.1. When the Commissioner’s order becomes a final order, and if the employer fails to pay the claimant his or her wages as determined by the Commissioner, the Division shall notify the claimant.

14.2. The claimant shall be responsible for seeking enforcement of the Commissioner’s final order, by filing a petition in the Circuit Court or Magistrate Court of Kanawha County, or other county as permitted by statute.

Series 09 Child Labor

W. Va. Code R. § 42-9-1 General

1.1. Scope. -- This rule is for the enforcement of all matters concerning the Child Labor Act, W. Va. Code §21-6-1 et seq.

1.2. Authority. -- W. Va. Code §21-6-11.

1.3. Filing Date. – March 16, 2026.

1.4. Effective Date. -- March 16, 2026.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2031.

W. Va. Code R. § 42-9-2 Application and Enforcement

2.1. Application. This legislative rule applies to all persons, employers, employees, and minor children governed or otherwise within the purview of the Child Labor Act, W. Va. Code §21-6-1 et seq.

2.2. Enforcement. The enforcement of the Child Labor Act, W. Va. Code §21-6-1 et seq. and this legislative rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-9-3 Definitions

3.1. “Act” means the Child Labor Act, W. Va. Code §21-6-1 et seq.

3.2. “Age certificate” means the form authorized by the Division for the employment of minors aged 14-17 that is issued by the Commissioner, as defined in subsection 3.7 of this section, for the purpose of certifying the minor’s age and place and date of birth.

3.3. “Approved program,” as used in W. Va. Code §21-6-2(c) and section 10 of this rule, means a training program that is equivalent to that of the West Virginia Department of Education Public Service Fire Service Training, the West Virginia State Fire Commission, or the West Virginia University Fire Service Extension Junior Firefighter Training, and that has been approved by the Commissioner.

3.4. “Board of education” means the board of education in the county where the minor resides.

3.5. “Certified birth certificate,” as used in subdivision 5.2.2 and section 7 of this rule, means a birth certificate issued by the West Virginia Department of Health and Human Resources, Office of Vital Registration; by the county clerk of the West Virginia county in which the minor was born; or by an office listed on the National Vital Statistics System maintained by the United States Centers for Disease Control and Prevention.

3.6. “Code of Federal Regulations” or “C.F.R.” refers to the rules and regulations of a federal government agency.

3.7. “Commissioner” means the Commissioner of the Division of Labor and his or her authorized representatives.

3.8. “Dangerous or injurious occupation” means an occupation identified in W. Va. Code §21-6-2, any occupation that the Commissioner determines is detrimental to a minor’s health, safety, or well-being, or that interferes with a minor’s education, and any occupation identified as oppressive by the United States Department of Labor.

3.9. “Division” means the West Virginia Division of Labor.

3.10. “Employ” means to hire, permit, or suffer to work.

3.11. “Employer” means any person, firm, or corporation employing a minor.

3.12. “Immediate supervision” or “direct supervision” means supervision by a responsible party, as defined in subsection 3.16 of this section, who is within the immediate physical proximity of the minor and is responsible for managing, overseeing, and directing the minor’s work activities.

3.13. “NFPA” refers to the National Fire Protection Association, 1 Batterymarch Park, Quincy, MA 02169.

3.14. “Parent” means and includes a minor’s parent, guardian, custodian, or other person standing in the place of the minor’s parent.

3.15. “Personal protective equipment” means NFPA-compliant boots, coats, pants, helmets, hoods, gloves, and self-contained breathing apparatus with face piece.

3.16. “Responsible party” or “responsible supervisor” means a regular, full-time, qualified, and experienced adult employee or business owner, or, pursuant to W. Va. Code §21-6-2(c), a fire line officer.

3.17. “School hours” or “while school is in session” means the hours during which county public or private schools are in session.

3.18. “School week” means Monday through Sunday while county public or private schools are in session.

3.19. “Special circumstances,” as used in W. Va. Code §21-6-8 and section 8 of this rule, means and includes a minor’s particular situation, life experiences, abilities, training, or any other conditions or facts that the Commissioner may consider in determining whether to issue a supervision permit.

3.20. “Supervision permit” means the form authorized by the Division that is issued by the Commissioner for the employment of a minor under special circumstances, as defined in subsection 3.19 of this section, that promote the best interests of the minor.

3.21. “Work experience program,” “work-study program,” or “work-based learning program” means a school-supervised and school-administered program for 14 and 15 year old minors enrolled in a college preparatory curriculum that meets the educational standards established by the West Virginia Department of Education, and has been approved by the United States Department of Labor Wage and Hour Division Administrator.

3.22. “Work experience and career exploration program” or “WECEP” means a school-supervised and school-administered program for 14 and 15 year old minors that meets the educational standards established by the West Virginia Department of Education, and has been approved by the United States Department of Labor Wage and Hour Division Administrator.

W. Va. Code R. § 42-9-4 Commissioner’s Determination Regarding Occupations that are Dangerous or Injurious to a Minor

Pursuant to W. Va. Code §21-6-2, when the Commissioner determines whether an occupation is dangerous or injurious to a child, he or she shall consider any applicable general guidance, interpretive guidance, fact sheets, opinion letters, and child labor rules published, issued, or promulgated by the United States Department of Labor, including, but not limited to, the Hazardous Occupation Orders in 29 C.F.R. §§ 570 through 570.55 and 570.57 through 570.68, or any other information that he or she deems necessary and relevant.

W. Va. Code R. § 42-9-5 Application for and Issuance of an Age Certificate for a 14 or 15 Year Old Minor

5.1. When a 14 or 15 year old minor wants to work in a permissible occupation under the Act and this rule, the minor’s prospective employer shall complete the age certificate form, available from the county board of education and the Division’s website (labor.wv.gov), in accordance with subsection 5.2 of this section.

5.2. The Division’s age certificate form consists of four parts, as follows:

5.2.1. The prospective employer shall complete Part A and include a description of the minor’s:

5.2.1.a. intended work activities and any equipment or machines the minor will use;

5.2.1.b. intended hours of employment;

5.2.1.c. total hours of work per day and per week; and

5.2.1.d. total work days per week;

5.2.2. The minor’s parent shall complete Part B, giving permission for the minor to work for the prospective employer and attaching the minor’s certified birth certificate;

5.2.3. The minor’s school principal, administrator, or registrar shall complete Part C, certifying that the minor is currently attending school: Provided, That completion of Part C is not required in the case of a homeschooled student exempt from compulsory school attendance pursuant to W. Va. Code §18-8-1(c); and

5.2.4. After Parts A, B, and C are completed, the Commissioner shall review the information completed by the prospective employer, the minor’s parent, and the minor’s school principal, administrator, or registrar, and shall issue, modify, or reject the age certificate.

5.3. The Commissioner shall retain the original age certificate and shall furnish copies to the minor’s parent and employer.

5.4. If required by the minor’s prospective employer, the minor’s parent shall attach documentation of a current physical examination to the application for an age certificate.

W. Va. Code R. § 42-9-6 Employer Responsibilities When Employing a 14 or 15 Year Old Minor Pursuant to an Age Certificate

6.1. Before allowing or permitting a 14 or 15 year old minor to work, an employer shall first have in his or her possession a properly issued age certificate as set forth in W. Va. Code §21-6-5 and this rule.

6.2. An employer is responsible for complying with the terms and conditions of the minor’s employment as set forth in the age certificate.

6.3. When school is in session, an employer shall ensure that the minor does not work:

6.3.1. Before 7 a.m. or after 7 p.m.;

6.3.2. For more than three hours a day; or

6.3.3. For more than a total of 18 hours per week during a school week.

6.4. When school is in session, an employer shall ensure that the minor does not work during the hours that school is in session, unless the minor is participating in an approved school-supervised work experience program or in a school-administered WECEP program.

6.4.1. An employer shall ensure that a 14 or 15 year old minor enrolled in a work experience program or WECEP program works no more than three hours a day on a school day.

6.4.2. An employer shall ensure that a 14 or 15 year old minor enrolled in a work experience program or WECEP program works no more than 23 hours during a school week.

6.5. During those times when school is not in session, an employer shall:

6.5.1. Limit the minor’s work hours to a maximum of eight hours per day and a maximum of 40 hours per week;

6.5.2. Limit the minor’s work hours to between 7 a.m. and 9 p.m.; and

6.5.3. Ensure that the minor does not work continuously for five hours or more without at least a 30-minute meal break.

W. Va. Code R. § 42-9-7 Application for and Issuance of an Age Certificate for a 16 or 17 Year Old Minor

7.1. A prospective employer may obtain the Division’s age certificate form for a 16 or 17 year old minor from the county board of education or the Division’s website (labor.wv.gov), and shall provide the employer’s name and address, a brief description of the employer’s business or industry, and a brief description of the minor’s occupation or job.

7.2. The minor shall furnish a certified birth certificate to the Commissioner as proof of his or her age. A copy of a certified birth certificate may satisfy this requirement.

7.3. Upon receipt of the minor’s certified birth certificate establishing that he or she is 16 years old or older, and a determination that the employer’s business or industry and the minor’s occupation or job are permissible under the Act and this rule, the Commissioner shall issue an age certificate to the employer.

7.4. The Commissioner shall retain the original age certificate and shall provide copies to the minor’s parent and the minor’s employer.

W. Va. Code R. § 42-9-8 Application for and Issuance of a Supervision Permit

8.1. When a minor wants to be employed under special circumstances, the Division’s supervision permit form, available from the Commissioner and the Division’s website (labor.wv.gov), shall be completed by the minor’s prospective employer and the minor’s parent.

8.2. The Division’s supervision permit consists of three parts, as follows:

8.2.1. The minor’s prospective employer shall complete Part A, to include the following information:

8.2.1.a. a description of the employer’s business;

8.2.1.b. a detailed description of proposed terms and conditions of the minor’s job, including the minor’s work schedule, the days and hours of work each week, and total hours of work each week;

8.2.1.c. a detailed description of the proposed tasks the minor will perform, and specification of the machines and equipment the minor will use;

8.2.1.d. the name and job title of the person who is going to supervise the minor, the length of time the responsible supervisor has been employed by the employer, the specifics of the responsible supervisor’s work schedule and a description of how the responsible supervisor will supervise the minor;

8.2.1.e. an explanation of the minor’s special circumstances that are relevant to the proposed tasks the minor will perform and the machines and equipment the minor will use;

8.2.1.f. an explanation of how and why the proposed job will be in the minor’s best interests; and

8.2.1.g. a statement that the employer is not subject to federal regulation regarding child labor;

8.2.2. After the prospective employer has completed Part A, the minor’s parent shall complete Part B, to include the following information:

8.2.2.a. an explanation of how and why the proposed job will be in the minor’s best interests;

8.2.2.b. a statement in support of the minor’s proposed job;

8.2.2.c. a description of the minor’s previous work experience or training relevant to the proposed job; and

8.2.2.d. a statement of any concerns, restrictions, or conditions regarding the proposed job that the parent or guardian believes are necessary to ensure that the minor’s best interests will be met, including any training the parent or guardian believes the employer must provide.

8.3. Upon receipt of a properly completed application for a supervision permit, the Commissioner shall timely investigate the request, including interviewing the prospective employer and any other matters the Commissioner considers necessary.

8.4. If, after review of the supervision permit application and the investigation, the Commissioner finds the application to be in the minor’s best interests, he or she may issue or modify the supervision permit to the employer and set forth the employer’s responsibility to comply with all terms and conditions of the supervision permit. The Commissioner shall provide a copy of the supervision permit to the minor’s parent or guardian.

8.5. If, after review, the Commissioner finds that the application is not in the minor’s best interests, he or she shall provide the employer and the minor’s parent or guardian with a written explanation for denying the application.

W. Va. Code R. § 42-9-9 Revocation of an Age Certificate or Supervision Permit

9.1. If the Commissioner determines that an age certificate or supervision permit was improperly issued, or contains inaccurate or false information, he or she may revoke it.

9.2. If the Commissioner revokes an age certificate or supervision permit, he or she shall immediately notify the employer in writing of the revocation.

9.3. Upon receipt of the revocation, the employer shall immediately end the minor’s employment.

W. Va. Code R. § 42-9-10 Minors Ages 16 and 17 Engaging in Volunteer Fire Department Activities; Responsibilities of the Volunteer Fire Department; Prohibited and Permitted Activities

10.1. A 16 or 17 year old minor may be employed by or elected as a member of a volunteer fire department to perform fire-fighting functions, other than those prohibited functions listed in subsection 10.3 of this section, if he or she:

10.1.1. Is enrolled in, is participating in, or has completed the minimum training requirements of one of the following programs:

10.1.1.a. the West Virginia Department of Education Public Service Fire Service Training;

10.1.1.b. the West Virginia State Fire Commission;

10.1.1.c. the West Virginia University Fire Service Extension Junior Firefighter Training; or

10.1.1.d. an equivalent approved program; and

10.1.2. Has the written consent of his or her parent to be employed by or be elected as a member of a volunteer fire department.

10.2. The volunteer fire department is responsible for and shall ensure that:

10.2.1. The minor has provided documentation of his or her enrollment in, participation in, or successful completion of one of the training programs listed in subdivision 10.1.1 of this section;

10.2.2. The minor has provided an age certificate;

10.2.3. The minor is under the direct supervision and control of trained and qualified fire protection personnel; and

10.2.4. The minor’s parental consent is on file as long as the minor’s name appears on the volunteer fire department’s roster of volunteers.

10.3. A minor may not:

10.3.1. Drive any fire apparatus, ambulance, or other official fire vehicle;

10.3.2. Operate flashing lights, a siren, or other audible signal when responding to an alarm in his or her own personal vehicle or any other vehicle;

10.3.3. Operate or climb an aerial ladder, aerial platform, or hydraulic jack at a fire scene or an emergency scene;

10.3.4. Use rubber electrical gloves, insulated wire gloves, insulated wire cutters, life nets, acetylene cutting units, K-12 fire rescue saws, air chisels, jaws of life, or other hydraulic rescue tools or other equipment related to rescue and fire operations at a fire scene or an emergency scene;

10.3.5. Operate the pumps or high-pressure hoses of any fire vehicle while at a fire scene or an emergency scene; or

10.3.6. Enter a burning structure.

10.4. As long as a minor is wearing personal protective equipment, he or she may:

10.4.1. Participate in training activities of the West Virginia Department of Education Public Service Fire Service Training, the West Virginia State Fire Commission, the West Virginia University Fire Service Extension Junior Firefighter Training, or an equivalent program approved by the Commissioner;

10.4.2. Administer first-aid at a fire scene or an emergency scene, but only at a safe distance away from any building or structure;

10.4.3. Clean up the outside area of a fire or emergency scene, but not the inside area of a building or structure, after a fire has been declared by the official in charge to be under control; and

10.4.4. Provide coffee and food service at a fire scene or an emergency scene, if needed, but only at a safe distance away from any building or structure.

10.5. A minor may not respond to a fire while school is in session or during school hours, unless the fire official in charge has obtained permission from the minor’s school principal.

Series 10 Zipline and Canopy Tour Responsibility Act

W. Va. Code R. § 42-10-1 General

1.1. Scope. -- This legislative rule sets the minimum acceptable safety standards for the installation, repair, use, operation, maintenance and inspection of ziplines and canopy tours and establishes procedures for the issuance of permits for ziplines and canopy tours.

1.2. Authority. -- W. Va. Code §§21-15-6, 21-15-8.

1.3. Filing Date. -- March 23, 2018.

1.4. Effective Date. -- March 30, 2018.

1.5. Sunset Date. This rule shall terminate and have no further force or effect on March 30, 2028.

W. Va. Code R. § 42-10-2 Application and Enforcement

2.1. Application. This legislative rule applies to the West Virginia Division of Labor and all persons, ziplines and canopy tours governed or otherwise within the purview of the Zipline and Canopy Tour Responsibility Act.

2.2. Enforcement. The enforcement of this legislative rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-10-3 Definitions

3.1. “ACCT” means and refers to the Association for Challenge Course Technology, P. O. Box 47, Deerfield, IL 60015.

3.2. “Act” means the Zipline and Canopy Tour Responsibility Act, W. Va. Code §21-15-1 et seq.

3.3. “Certificate of inspection”means the permit to operate issued by the Commissioner, stating the name and location of the zipline or canopy tour owner or operator, the zipline or canopy tour device number, the type of device, the date of installation, the name of the installer and the date that operations may begin.

3.4. “Commissioner” means the Commissioner of the West Virginia Division of Labor or his or her designated representatives.

3.5. “Complete application” means an application that includes all the information required in

section 5 of this rule.

3.6. “Contested application” means an application that the Commissioner challenges, which can include, but is not limited to, incomplete information.

3.7. “Device” means a zipline, a canopy tour or a challenge course.

3.8. “Final action” means the issuance or denial of an application for a permit.

3.9. “Imminent danger” means a practice or condition which could reasonably be expected to cause death or serious injury to participants, operators and/or the general public.

3.10. “Inspector” means a person employed by the Division who meets the training and experience requirements set forth in the ACCT Challenge Course and Canopy/Zip Line Tour Standards, Seventh Edition, Chapter 5, Section C or substantially equivalent training and experience requirements.

3.11. “Serious injury” means an injury that is directly related to any mechanical, electrical, operational or structural malfunction of a zipline or canopy tour that results in death, loss of consciousness, or requires medical treatment other than first aid by a physician or other medical professional for which a record is created.

3.12. “Special inspector certification” means the document issued by the Commissioner to a special inspector upon receipt of a complete application, certifying that the individual is qualified to inspect ziplines and canopy tours.

3.13. “Unscheduled cessation of operation” means an unplanned cessation of operation of a zipline or canopy tour due to any mechanical, electrical, operational or structural malfunction, modification or adjustment or due to any environmental conditions, including weather.

W. Va. Code R. § 42-10-4 Adoption of Standards

The ACCT “Challenge Course and Canopy Zip Line Tour Standards,” 7 th edition, 2008, are adopted and incorporated by reference.

W. Va. Code R. § 42-10-5 Application for Permit to Operate Required; Permit Application Requirements; Permit Fee;

Certificate of Inspection; Application Amendments.

5.1. Before beginning the operation of a zipline or canopy tour in West Virginia for participant use, the owner or operator shall submit a written application for a permit to operate at least 15 days before the first intended date of use and provide all information as the Commissioner may require on a form supplied by the Division.

5.2. An owner of a zipline or canopy tour shall include the following information in the application:

5.2.a. The name, address, telephone number, email address (if applicable) and website address (if applicable) of the zipline or canopy tour operator;

5.2.b. Identification of each device, including its location, dates of operation, date of installation, and the name and address of the installer of the zipline or canopy tour equipment;

5.2.c. Documentation of a commercial general liability insurance policy covering claims for personal injury, death and property damages arising from the operation of a zipline or canopy tour in amounts not less than those specified in W. Va. Code §21-15-3(4);

5.2.d. The most recent inspection report prepared by an inspector or special inspector, including a certification that the inspection fee has been paid, or a request for inspection by the Division and a check for the inspection fee, as specified by W. Va. Code §21-15-7(a).

5.3. Unless waived by W. Va. Code §21-15-7(a)(3), the fee for a permit to operate each separate zipline or canopy tour shall be $100.00.

5.4. The preferred means of paying the application fee is by credit card.

5.5. The Commissioner may not issue a permit to operate and a certificate of inspection until the zipline or canopy tour has been inspected by an inspector or special inspector and found to be in compliance with ACCT standards.

5.6. Upon receipt of a complete uncontested application, the Commissioner shall issue a permit to operate and certificate of inspection within 30 days.

5.7. If the application is contested by the Commissioner, he or she shall have 90 days to take final action on the application.

5.7.a. The Commissioner shall promptly notify the applicant in writing, either by mail or certified mail, return receipt requested, of the reasons for contesting the application and afford the applicant an opportunity to respond.

5.7.b. If, after notice, the applicant fails to respond to the Commissioner’s objections, the Commissioner shall deny the application.

5.8. A permit to operate a zipline or canopy tour and certificate of inspection shall expire annually on December 31 st .

5.9. A permit to operate and certificate of inspection is valid only for the zipline or canopy tour registered with the Commissioner.

5.10. An owner of a zipline or canopy tour shall submit any amendment to the application to the Commissioner at least 24 hours before the first intended date of use of the zipline or canopy tour.

W. Va. Code R. § 42-10-6 Annual Inspection Required; Issuance of a Permit to Operate; Emergency Contact Protocol

6.1. An inspector or special inspector shall inspect a zipline or canopy tour and determine that it complies with the Act and this rule before a permit to operate may be issued.

6.2. A permit to operate shall be in the form of a certificate of inspection, which shall include the date or dates of the inspection.

6.3. A zipline or canopy tour operator shall post a copy of the certificate of inspection in close proximity to the entry to the zipline or canopy tour or other location where it is readily visible to participants.

6.4. With the issuance of each permit to operate, the Division shall furnish its emergency contact protocol for the reporting of a serious accident, fatality, or other emergency, which shall include 24/7 electronic and telephone access.

W. Va. Code R. § 42-10-7 Qualifications and Certification of Special Inspectors

7.1. A person applying for certification as a special inspector shall make application annually on a form provided by the Commissioner.

7.2. An applicant shall furnish documentation of the following with the application:

7.2.a. Experience and training that comply with the requirements set forth in the Challenge Course Standards; or

7.2.b. Experience and training that the Commissioner has determined in advance are substantially equivalent to the requirements set forth in the Challenge Course Standards.

W. Va. Code R. § 42-10-8 Commercial General Liability Insurance

8.1. The Commissioner may, in his or her discretion, require the zipline or canopy tour operator to submit the complete insurance policy or contract.

8.2. A zipline or canopy tour operator shall obtain an insurance policy issued by a carrier licensed or approved to transact business by the WV Offices of the Insurance Commissioner.

8.3. The Commissioner shall not accept any commercial general liability insurance policy unless it obligates the insurer to give written notice to the Commissioner at least 30 days before any proposed cancellation, suspension or non-renewal of the policy.

W. Va. Code R. § 42-10-9 Unscheduled Cessation of Operation

9.1. Following any unscheduled cessation of operation, the operator of a zipline or canopy tour shall immediately have the participants safely removed or unloaded from the zipline or canopy tour.

9.2. If the operator determines that the zipline or canopy tour can safely resume operation, the qualified person shall first operate the zipline or canopy tour without participants to ensure that the cause of the unscheduled cessation of operation has been corrected.

9.3. The operator shall document any unscheduled cessation of operation, including the identification of the zipline or canopy tour, the name of the employee operating the zipline or canopy tour during the unscheduled cessation, and a complete description of the incident, including the date, time, weather conditions, location, number of participants, etc.

W. Va. Code R. § 42-10-10 Operating a Zipline or Canopy Tour Without a Permit; Cease and Desist Orders

10.1. Upon a determination that a person is operating or allowing the operation of a zipline or canopy tour without a permit, the Commissioner shall issue a cease and desist order requiring the person to immediately cease operating, or allowing the operation of, the zipline or canopy tour.

10.2. The owner or operator of zipline or canopy tour shall post the cease and desist order in a location where it is readily visible to participants.

10.3. If the owner or operator continues to operate or permit the operation of a zipline or canopy tour after the issuance of a cease and desist order, the Commissioner may seek a temporary or permanent restraining order or injunction to prohibit the continuing operation of the zipline or canopy tour.

W. Va. Code R. § 42-10-11 Imminent Danger

11.1. If the Commissioner or a special inspector determines that a zipline or canopy tour presents an imminent danger, he or she shall immediately give written notification to the zipline or canopy tour owner or operator, advising him or her that the zipline or canopy tour shall be immediately removed from service.

11.2. If the owner or operator does not immediately remove the zipline or canopy tour from service, the inspector shall immediately report the imminent danger to the Commissioner.

11.3. If the owner or operator does not immediately remove the zipline or canopy tour from service, the Commissioner may seek a temporary or permanent restraining order or injunction to prohibit the continuing operation of the zipline or canopy tour.

W. Va. Code R. § 42-10-12 Serious Injury or Fatality

12.1. If a participant or member of the general public is involved in an accident related to the operation of a zipline or canopy tour that results in a serious injury or a fatality, the owner or operator shall immediately shut down the operation of the zipline or canopy tour and secure the safety of other participants and the general public.

12.2. An owner or operator shall ensure that the scene of a serious injury or fatality is left intact from the time of the accident and shall ensure that the zipline or canopy tour involved is not removed from the scene of the accident without written authorization from the Commissioner or a law enforcement officer.

12.3. The owner, operator, and any employees who witnessed the accident or who operated the zipline or canopy tour when the accident occurred shall be available to be interviewed by the Commissioner.

12.4. The owner of the zipline or canopy tour shall make a report of the injury or fatality to the Commissioner within 24 hours of its occurrence, using the Division’s emergency contact protocol.

12.4.a. After the owner of the zipline or canopy tour notifies the Commissioner of a serious injury or fatality, the Commissioner shall, with reasonable promptness, advise the owner whether the zipline or canopy tour shall remain shut down pending investigation and inspection or whether it can be placed back in service.

12.4.b. In deciding whether the zipline or canopy tour shall remain shut down or whether it can be placed back in service, the Commissioner’s sole consideration shall be the safety of participants and the general public.

12.5. The owner shall document the accident, to include the full name, address and telephone number of the injured person, a description of his or her injuries, identification of the zipline or canopy tour involved, the names and addresses of the owner and employees who witnessed the accident, and any other pertinent information describing the events leading up to the accident.

12.6. An owner or operator shall keep a record of every accident or fatality with the certificate of inspection, which shall be readily accessible to the general public. The record shall include the following information:

12.6.a. The date of every accident or fatality;

12.6.b. A description of the type of accident;

12.6.c. The number of people injured or killed; and

12.6.d. A description of the types of injuries.

W. Va. Code R. § 42-10-13 Reports and Records

13.1. The owner of the zipline or canopy tour shall retain all reports, documents, photographs and records required by this rule for not less than three (3) years from the date of the unscheduled cessation, imminent danger notification, or serious injury or fatality.

13.2. If an owner violates any provision of this section of the rule, the Commissioner may permanently revoke the permit to operate.

Series 12 Bedding and Upholstered Furniture

W. Va. Code R. § 42-12-1 General

1.1. Scope. -- This rule is for the enforcement of all matters concerning the regulation of bedding and upholstered furniture pursuant to W. Va. Code §47-1A-1 et seq.

1.2. Authority. -- W. Va. Code §47-1A-15.

1.3. Filing Date. -- March 23, 2018.

1.4. Effective Date. -- March 30, 2018.

1.5. Sunset Date. This rule shall terminate and have no further force or effect on March 30, 2028.

W. Va. Code R. § 42-12-2 Application and Enforcement

2.1. Application. This rule applies to all persons governed or otherwise within the purview of the

Regulation and Control of Bedding and Upholstery Businesses Act, W. Va. Code §47-1A-1 et seq.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-12-3 Definitions

3.1. The “Act” for purposes of this rule, means the Regulation and Control of Bedding and Upholstery Businesses Act, W. Va. Code §47-1A-1 et seq.

3.2. “Antique,” as used in W. Va. Code §47-1A-11, means a product that is at least 75 years old.

3.3. “As is,” as used in W. Va. Code §47-1A-11, means the condition of an intact, complete secondhand article of bedding that has not been remade or renovated in any way.

3.4. “Commissioner” means the Commissioner of the Division of Labor or his or her authorized representatives.

3.5. “Complete application” means an application that includes all the information required in sections 6 and 8 of this rule.

3.6. “Contested application” means an application that the Commissioner challenges, which can include, but is not limited to, incomplete information.

3.7. “Division” means the West Virginia Division of Labor.

3.8. “Fill material” or “filling material” means any material used in the manufacture or renovation of articles of bedding or upholstered furniture, including cotton, wool, kapok, feathers, down, hair or any other material or combination of materials.

3.9. “Final action” means the issuance or denial of an application for a permit.

3.10. “IABFLO” refers to the International Association of Bedding and Furniture Law Officials, http://abflo.info/index.htm.

3.11. “Manufacturer” means a person that makes or produces articles of bedding, upholstered furniture, or filling material, using either new or secondhand materials.

3.12. “Person” means an individual, a partnership, an association, a business, an auctioneer, a trust, a corporation, or any other entity engaged in the manufacturing, selling, renovating, upholstering or sterilizing any article of bedding, upholstered furniture or filling material.

3.13. “Registration certificate” means the annual registration document issued by the Commissioner authorizing a manufacturer, upholsterer or renovator to ship or sell articles of bedding in West Virginia.

3.14. Registration number” or “registry number” means the unique number assigned by the Division to an applicant for a registration certificate, or a uniform registry number assigned to an applicant by another State.

3.15. “Renovator” means a person who repairs, remakes, rebuilds, recovers, restores, renovates or renews any article of bedding or upholstered furniture.

3.16. “Sell” means to offer or expose for sale, barter, trade, deliver, give away, rent, consign, lease, possess with an intent to sell, or dispose of in any commercial manner.

3.17. “Sterilization permit” means the annual permit issued by the Commissioner.

3.18. “Sterilizer” means a person who sterilizes articles of bedding, upholstered furniture or filling material.

3.19. “Tag,” “label,” or “law label” means the tag or label required by W. Va. Code §47-1A-11 to be affixed to articles of bedding or upholstered furniture.

3.20. “Uniform Registry Number” or “URN” means the unique number accepted by all states in the United States that allows the use of one state’s registration number for use on any other state’s law labels or tags, as long as the state assigning the registration number regulates bedding.

3.21. “Upholstered furniture” means any article of furniture intended for human use for sitting, resting or reclining that is wholly or partially stuffed or filled with filling material, including outdoor furniture pads.

3.22. “Upholsterer” means a person who manufactures upholstered furniture.

W. Va. Code R. § 42-12-4 Adoption of IABFLO’s Standardized Classification of Filling Materials and Uniform Law Labels

The following documents are adopted and incorporated by reference:

4.1. IABFLO’s “Classification of Filling Materials”; and

4.2. IABFLO’s “Uniform Law Labels.”

W. Va. Code R. § 42-12-5 Registration Certificate Required; Validity

5.1. Before manufacturing, renovating, or upholstering any article of bedding, upholstered furniture or filling material for shipment into or for sale or rental in this State, a manufacturer, renovator or upholsterer shall submit a complete application for a registration certificate to the Commissioner on a form provided by the Division.

5.2. A registration certificate expires annually on June 30.

5.3. A registration certificate is valid for the business location and name as stated on the certificate, and is not valid if transferred or assigned to any other business location or name.

W. Va. Code R. § 42-12-6 Initial and Renewal Application for a Registration Certificate; Fees

6.1. A manufacturer, renovator or upholsterer shall submit a separate application for a registration certificate for each business location or name.

6.2. An applicant for an initial or renewal manufacturer, renovator or upholsterer registration certificate shall include a $90.00 fee for each business location or name in United States currency.

6.2.a. If the applicant submits the fee by check, the check shall be drawn on a bank that has a banking charter or license issued by a state in the United States or is chartered by the Office of the Comptroller of the Currency.

6.2.b. If the applicant submits the fee by check drawn on a bank not chartered or licensed by a state in the United States or not chartered by the Office of the Comptroller of the Currency, the Commissioner shall refuse the check and return it to the applicant.

6.3. The preferred method for payment of a renewal application fee is by credit card.

6.4. An applicant for an initial registration certification shall include 2 original tags or labels intended for use with an article of bedding, upholstered furniture or filling material.

6.4.a. An applicant may submit a template for approval by the Commissioner prior to having the tags or labels printed.

6.4.b. Before issuing a registration certificate, the Commissioner shall approve the applicant’s tag or label for use.

6.5. The Division shall mail annual renewal applications to current certificate holders at their last known registered address no later than April 15.

W. Va. Code R. § 42-12-7 Sterilization Permit Required; Posting of the Permit

7.1. Before sterilizing any article of bedding, upholstered furniture or filling material for shipment into, or for sale or rental in this State, a sterilizer shall submit a complete application for a sterilization permit to the Commissioner on a form provided by the Division.

7.2. A sterilization permit expires annually on June 30.

7.3. A sterilization permit is valid for the business location and name as stated on the permit, and is not valid if transferred or assigned to any other business location or name.

7.4. The sterilizer shall ensure that the sterilization permit is conspicuously posted near the sterilizing equipment.

W. Va. Code R. § 42-12-8 Initial and Renewal Application for a Sterilization Permit; Fees

8.1. A sterilizer shall submit a separate application for a sterilization permit for each business location or name.

8.2. An applicant for an initial or renewal sterilization permit shall include a $90.00 fee for each business location or name in United States currency. The preferred method for payment of the application fee is by credit card.

8.2.a. If the applicant submits the fee by check, the check shall be drawn on a bank that has a banking charter or license issued by a state in the United States or is chartered by the Office of the Comptroller of the Currency.

8.2.b. If the applicant submits the fee by check drawn on a bank not chartered or licensed by a state in the United States or not chartered by the Office of the Comptroller of the Currency, the Commissioner shall refuse the check and return it to the applicant.

8.3. An applicant for an initial sterilization permit shall include a complete description of its sterilization process and procedures, including identification of the types of items to be sterilized and the names of the chemicals to be used.

8.4. An applicant for a renewal sterilization permit shall include a description of any changes to its previously approved sterilization process.

8.5. Before issuing a sterilization permit, the Commissioner shall approve the proposed sterilization process. If the Commissioner does not approve the sterilization process, he or she shall provide the applicant with a written explanation for the disapproval.

8.6. The Division shall mail annual renewal applications to current permit holders at their last known address no later than April 15.

8.7. Upon receipt of a complete application, the Commissioner shall issue a sterilization permit within 30 days if the application is uncontested.

8.8. If the application is contested by the Commissioner, he or she shall have 90 days to take final action on the application.

8.8.a. The Commissioner shall promptly notify the applicant in writing, either by email or certified mail, return receipt requested, of the reasons for contesting the application and afford the applicant the opportunity to respond.

8.8.b. If, after notice, the applicant fails to respond to the Commissioner’s objections, the Commissioner shall deny the application.

W. Va. Code R. § 42-12-9 Issuance of a Registration or Permit Number

9.1. Upon receipt of complete application for a registration certificate or sterilization permit, the Division shall assign a registration or permit number to the applicant, or shall use the applicant’s uniform registry number, if one is available.

9.2. The Division shall assign or use a unique registration or sterilization number for each business name or location.

9.3. A manufacturer, renovator, upholsterer or sterilizer shall use either the registration or permit number assigned by the Division or the uniform registry number on all labels or tags required by the Act or this rule.

W. Va. Code R. § 42-12-10 Tags or Labels Required; Information Required

10.1. “All New Material” white tag or label.

10.1.a. A manufacturer shall ensure that a white tag or label is properly attached to an article of bedding, upholstered furniture or filling material that contains all new material, and that the white tag or label conforms to the provisions of W. Va. Code §§47-1A-11 and -12.

10.1.b. When the bedding, upholstered furniture or filling material does not require sterilizing, the “All New Material” white tag or label shall conform to either the sample tag in Appendix A of this

rule or the tag as recommended by IABFLO .

10.2. “Secondhand material” yellow tag or label.

10.2.a. A renovator, upholsterer or sterilizer shall ensure that a yellow tag or label is properly attached to an article of bedding, upholstered furniture or filling material that contains secondhand material, and that the yellow tag or label conforms to the provisions of W. Va. Code §§47-1A-11 and -12.

10.2.b. When the second-hand bedding or upholstered furniture has been renovated or otherwise remade and has been sterilized, the “Renovated or Remade - Sterilized” light yellow tag or label shall conform to the sample tag in Appendix B of this rule.

10.2.c. When the second-hand bedding or upholstered furniture has been renovated or otherwise remade for a specific owner and not for sale to the general public, the “Renovated or Remade for Specific Owner - Not To Be Sold” light yellow tag or label shall conform to the sample tag in Appendix C of this rule.

10.2.d. When the second-hand bedding or upholstered furniture is intact, complete, has not been renovated or otherwise remade from its immediate prior owner, and has not been sterilized, the “Secondhand - Contents Unknown - Not Sterilized” dark yellow tag or label shall conform to the sample tag in Appendix D of this rule.

10.2.e. When the second-hand bedding or upholstered furniture is intact, complete, has not been renovated or otherwise remade from its immediate prior owner, and has been sterilized, the “Secondhand - Contents Unknown - Sterilized” dark yellow tag or label shall conform to the sample tag in Appendix E of this rule.

10.3. “Declared Unclean” red tag or label.

10.3.a. If the Commissioner determines that an article of bedding, upholstered furniture, or filling material has come into contact with, or could have come into contact with, an individual with an infectious or contagious disease, he or she shall cause a red tag or label to be affixed to the exposed items.

10.3.b. When an article of bedding, upholstered furniture or filling material has been declared unclean, the “Declared Unclean” red tag or label shall conform to the sample tag in Appendix F of this

rule.

10.4. “Article or Material Placed Off-Sale” blue tag or label.

10.4.a. If the Commissioner determines that an article of bedding, upholstered furniture, or filling material is not properly tagged or labeled as required by W. Va. Code §§47-1A-11 and -12, or that the tag or label contains inaccurate or misleading terms or information, he or she shall cause a blue tag or label to be affixed to the improperly or inaccurately tagged or labeled items.

10.4.b. When an article of bedding, upholstered furniture or filling material has been improperly or inaccurately tagged or labeled, the “Article or Material Placed Off-Sale” blue tag or label shall conform to the sample tag in Appendix G of this rule.

APPENDIX A

BEDDING AND UPHOLSTERY WHITE SAMPLE TAG / LABEL

ALL NEW MATERIAL

ALL NEW MATERIAL

CONSISTING OF:

CONTENTS STERILIZED

REGISTRATION #:

CERTIFICATION IS MADE BY THE

MANUFACTURER THAT THE MATERIALS

IN THIS ARTICLE ARE DESCRIBED IN

ACCORDANCE WITH LAW

NAME AND ADDRESS OF

MANUFACTURER:

OPTIONAL INFORMATION

DATE OF DELIVERY:

FINISHED SIZE:

AND/OR WEIGHT:

FEDERAL RN #:

MADE IN:

APPENDIX B

BEDDING AND UPHOLSTERY LIGHT YELLOW SAMPLE TAG / LABEL

SECONDHAND MATERIAL

RENOVATED OR REMADE - STERILIZED

THIS ARTICLE HAS BEEN RENOVATED BY

ADDING THE FOLLOWING MATERIALS:

OR NO MATERIALS ADDED

STERILIZATION PERMIT #: WV

REGISTRATION #:

CERTIFICATION IS MADE THAT THE

MATERIALS IN THIS ARTICLE ARE

DESCRIBED IN ACCORDANCE WITH LAW

DATE STERILIZED:

NAME AND ADDRESS OF RENOVATOR OR

REMAKER:

APPENDIX C

BEDDING AND UPHOLSTERY LIGHT YELLOW SAMPLE TAG / LABEL

RENOVATED OR REMADE FOR A SPECIFIC OWNER

NOT TO BE SOLD

THIS ARTICLE HAS BEEN RENOVATED BY

ADDING THE FOLLOWING MATERIALS:

OR NO MATERIALS ADDED

STERILIZATION PERMIT #: WV

REGISTRATION #:

CERTIFICATION IS MADE THAT THE

MATERIALS IN THIS ARTICLE ARE

DESCRIBED IN ACCORDANCE WITH LAW

NOT FOR SALE TO THE GENERAL PUBLIC

NAME AND ADDRESS OF OWNER:

DATE STERILIZED:

CONTENTS NOT STERILIZED:

NAME AND ADDRESS OF REMAKER OR

RENOVATOR:

APPENDIX D

BEDDING AND UPHOLSTERY DARK YELLOW SAMPLE TAG / LABEL

SECONDHAND CONTENTS - CONTENTS UNKNOWN

NOT STERILIZED

SECONDHAND

CONTENTS UNKNOWN

NOT STERILIZED

REGISTRATION #:

CERTIFICATION IS MADE THAT THE

MATERIALS IN THIS ARTICLE ARE

DESCRIBED IN ACCORDANCE WITH LAW

NAME AND ADDRESS OF VENDOR

SOLD BY:

APPENDIX E

BEDDING AND UPHOLSTERY DARK YELLOW SAMPLE TAG / LABEL

SECONDHAND CONTENTS - CONTENTS UNKNOWN

STERILIZED

SECONDHAND

CONTENTS UNKNOWN

STERILIZED

STERILIZATION PERMIT #:

DATE STERILIZED:

CERTIFICATION IS MADE THAT THE

MATERIALS IN THIS ARTICLE ARE

DESCRIBED IN ACCORDANCE WITH LAW

NAME AND ADDRESS OF STERILIZER:

SOLD BY:

APPENDIX F

BEDDING AND UPHOLSTERY RED SAMPLE TAG / LABEL

CONTENTS DECLARED UNCLEAN

SHALL NOT BE REMOVED

THIS ARTICLE OR MATERIAL HAS BEEN

PLACED OFF-SALE BY THE

COMMISSIONER OF THE WEST VIRGINIA

DIVISION OF LABOR

SPECIAL NOTES:

THIS ARTICLE HAS BEEN DECLARED

“UNCLEAN”

NAME AND ADDRESS OF LOCATION

WHERE PLACED OFF-SALE:

APPENDIX G

BEDDING AND UPHOLSTERY BLUE SAMPLE TAG / LABEL

ARTICLE OR MATERIAL PLACED OFF-SALE

NOT BE REMOVED

THIS ARTICLE OR MATERIAL HAS BEEN

PLACED OFF-SALE BY THE

COMMISSIONER OF THE

WEST VIRGINIA DIVISION OF LABOR

SPECIAL NOTES:

NAME AND ADDRESS OF LOCATION

WHERE PLACED OFF-SALE:

Series 15 WV Occupational Safety And Health Act

W. Va. Code R. § 42-15-1 General

1.1. Scope. -- This legislative rule governs the workplace safety and health of employees, adopts federal and state standards, establishes record keeping and reporting requirements, provides for inspections and investigations and the issuance of citations and penalties, establishes a complaint and appeal process and education and training, and provides for optional coverage.

1.2. Authority. -- W. Va. Code '21-3A-6.

1.3. Filing Date. -- April 13, 1998.

1.4. Effective Date. -- April 15, 1998.

1.5. Repeal and Replace -- This rule repeals and replaces the Division of Labor rule, West Virginia Occupational Safety and Health Act, 42CSR15 that was effective April 1, 1988.

W. Va. Code R. § 42-15-2 Application and Enforcement

2.1. Application. This legislative rule governs all public employers, public employees and public workplaces within the state of West Virginia.

2.2. Enforcement. Enforcement of this legislative rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-15-3 Definitions

3.1. AAct@ means the West Virginia Occupational Safety and Health Act, W. Va. Code '21-3A-1, et seq.

3.2. ACommission@ means the occupational safety and health review commission as established by W. Va. Code '21-3A-10.

3.3. ACommissioner@ means the commissioner of the West Virginia Division of Labor or his or her designated representative.

3.4. ADivision@ means the West Virginia Division of Labor.

3.5. AEmployee@ or Aemployees@ includes any person suffered or permitted to work by an employer.

3.6. AEmployer@ means a public employer and includes the state or any department, division, bureau, board, commission, council, agency or authority of the state, but shall not include the Division of Corrections, the Division of Health and the Legislature.

3.7. AImminent danger@ means any conditions or practices in any place of employment which such that a danger exists which could reasonably be expected to cause death or serious physical harm immediately or before the imminence of the danger can be eliminated through the enforcement procedure.

3.8. APerson@ means one or more individuals.

3.9. AStandard@ means a standard for health or safety which requires the adoption or use of one or more practices, means, methods, operations or processes reasonably necessary or appropriate to provide safe and healthful employment in places of employment.

3.10. AWorkplace@ means a place where employees are assigned to work but shall not include any place inspected or regulated by the Federal Occupational Safety and Health Administration, the Federal Mine Safety and Health Administration, or facilities under the authority and occupied solely by the Division of Corrections, the Division of Health and the Legislature.

W. Va. Code R. § 42-15-4 Adoption of Federal Standards; Additional State Standards

4.1. The code of federal regulations, 29 CFR '1900-1999, setting forth all occupational safety and health standards as recognized by the United States Secretary of Labor under the authority of the Occupational Safety and Health Act of 1970, as in effect on the effective date of this rule, are incorporated by reference as the state standards.

4.2. Additional state standards.

[RESERVED]

W. Va. Code R. § 42-15-5 Duties of Employers and Employees

5.1. Each employer shall:

(a) Furnish to each of his or her employees employment and a place of employment which are free from recognized hazards causing or likely to cause death or serious physical harm to the employees;

(b) Comply with all safety and health standards as adopted by this rule;

(c) Comply with all orders and directives issued by the commissioner;

(d) Provide safety and health training to each employee with particularity to his or her respective work assignment. The employer may contract for training services, and utilize training packages and services available from the division or may design and utilize his or her own individual training program. The employer shall submit to the Commissioner for prior approval, all training programs utilized by the employer to insure that they fully comply with the provisions of this rule and W. Va. Code '21-3A-1 et seq;

(e) Maintain records of occupational injuries and illnesses in accordance with the requirements of 29 CFR '' 1900-1999; and (f) Notify the Commissioner within eight hours of the occurrence of ; i) any workplace fatality; ii) or any single accident which requires emergency room treatment or the hospitalization of three (3) or more employees.

5.2. Each employee shall:

(a) Complete safety and health training as required by the employer or the commissioner;

(b) Comply with all safety and health standards as adopted by the commissioner; and (c) Immediately notify his or her employer of any known safety and health hazard or other violation of the safety and health standards. The employer shall keep a written record of the notifications for a period of not less than two (2) years.

5.3. No employer may discharge or in any manner discriminate against any employee because the employee:

(a) Filed any complaint;

(b) Instituted or caused to be instituted or participated in any proceedings under or related to the Act or the provisions of this rule;

(c) Testifies or plans to testify in any such proceeding; or (d) Has exercised on behalf of himself or herself or others any right afforded by the Act or this rule.

W. Va. Code R. § 42-15-6 Inspections and Investigations

6.1. The Commissioner shall perform inspections and investigations at any work place or environment where work is performed by an employee. Each workplace shall be inspected in response to complaints filed, upon employer request and as the commissioner determines that conditions may warrant.

6.2. Any employee or representative of employees who believes that there exists a violation of a standard or that there is an imminent danger of physical harm, may request an inspection.

(a) A request for inspection shall include:

(1) The name of the employee, employees or representative of the employees making the request and shall include the employee=s, employees= or employees representative=s address and telephone number ;

(2) With particularity, the grounds for the request, including the standard or standards believed to be violated, if known;

(3) The name and address of the employer;

(4) The physical location of the alleged violation or violations;

(5) The signature of the employee, employees or employee representative;

(6) The date of the request; and (7) A statement by the person or persons making the request for inspection that a copy of the request has been provided to the employer and the date that the notice was given. Provided, However that upon the request of the person making the request for inspection, the name or names of the person or persons making the request shall not appear in the copy or on any record published, released or made available pursuant to W. Va. Code '21-3A-8(g).

(b) If, upon receipt of the request for inspection, the commissioner determines there are reasonable grounds to believe that a violation of safety and health standards or imminent danger of physical harm exists, the commissioner shall inspect the workplace in accordance with the provisions of the Act as soon as practicable to determine if the violation or danger exists.

(c) If, upon receipt of the request for inspection, the commissioner determines that there are no reasonable grounds to believe that a violation of safety and health standards exists, he or she shall notify the employer, the employee or the representative of employees in writing of the determination. The notification does not preclude the Commissioner from instituting future enforcement action if conditions change or if additional facts become available.

(d) Any person adversely affected by the actions of the Commissioner upon a request for inspection is entitled to an appeal hearing before the Commission in accordance with the provisions of section nine of this rule.

6.3. The Commissioner or his or her designated representative, upon presentation of appropriate credentials, may:

(a) Enter at reasonable times, any workplace or work environment where work is performed by employees of an employer. No employer may refuse to allow the Commissioner or designated representative to inspect a place of employment. If an employer attempts to obstruct an inspection, the Commissioner may obtain an inspection warrant from the circuit court of Kanawha County or the circuit court of the county where the employer is located;

(b) Inspect all physical facilities, structures, machines, apparatus, devices, equipment, vehicles and materials contained therein and observe practices, in use within the work environment. The Commissioner or his or her designated representative may include a representative of the employer and a representative authorized by the employees in the inspection;

(c) Openly inspect all records and reports required by the Act or the provisions of this rule to be kept or filed by the employer;

(d) Privately interview or question any person employed by the employer; and (e) Require testimony of witnesses and the production of evidence under oath.

6.4. The Commissioner shall prepare a written report for every inspection and investigation conducted under authority of the Act. The report shall contain at a minimum the:

(a) The name and identification of the inspector or investigator;

(b) The date of the inspection or investigation;

(c) The name and address of the employer;

(d) The physical location of the inspection or investigation;

(e) The names and titles of the employer and employee representatives who participated in the inspection or investigation; and (f) Attached copies of all citations issued as a result of the inspection or investigation.

6.5. All reports of inspection and investigation are confidential until such time as all matters at issue contained in the report are resolved.

W. Va. Code R. § 42-15-7 Citations

7.1. If, upon inspection or investigation, the Commissioner or his or her designated representative determines that an employer has violated any safety and health standard, or finds a condition which poses a recognized hazard likely to cause death, serious injury or illness, the Commissioner shall issue a citation to the employer or employee.

(a) The citation shall be in writing and delivered by personal service or certified mail.

(b) The citation shall state with particularity the nature of the violation, including a reference to the provision of the Act, or the standard, rule or order alleged to have been violated. The citation shall fix a date by which the employer or employee shall correct the violation.

(c) The citation shall contain a notification informing the employer or employee that he or she has fifteen (15) days from receipt of the citation to contest the citation or seek a variance. A request to contest a citation or to seek a variance shall be in writing, addressed to the Commissioner. If the employer or employee fails to contest the citation or seek a variance, the citation, as proposed, becomes final and is not subject to review by any court or agency.

(d) If the employer or employee fails to contest the citation or seek a variance and fails to correct the violation by the correction date contained in the citation, the Commissioner shall seek judicial enforcement to compel compliance with the citation.

(e) If the employer or employee contests a citation or request a variance, the Commissioner shall immediately advise the commission, which shall afford the employer or employee an opportunity for a hearing.

7.2. The employer shall post each citation issued under this section or a copy or copies of the citation in a place accessible by all employees of the employer to include the places where employee notices are normally posted. In cases where there exists continued exposure to physical hazards, a copy of the citation shall be posted in the immediate physical area where the violation is alleged to have occurred.

W. Va. Code R. § 42-15-8 Research; Education and Training Programs

8.1. The Commissioner shall annually collect data from employer records of occupational injuries and illnesses. The Commissioner shall use this data to analyze the performance of employers and employees and to evaluate the effectiveness of existing safety and health programs.

8.2. The Commissioner may initiate any other research project he or she considers necessary to reduce the numbers and severity of occupational injuries and illnesses when he or she detects abnormally high rates of occurrence during the annual review or by on-site inspection.

8.3. The Commissioner shall develop directly, or by grants or contract, basic occupational safety and health training courses with a level of diversity necessary to provide training specific to all work environments covered by this rule. These basic courses shall be designed to be suitable for all employees.

8.4. The Commissioner shall develop directly, or by grants or contract, technical training courses designed to train and update management level personnel and those charged with occupational safety and health over-site responsibilities within a specific work environment. These technical courses shall provide a level of diversity necessary to meet the needs of any work environment covered by this rule.

8.5. The Commissioner may require special training of employers and employees in work environments where research data indicates abnormally high occurrences of occupational injuries and illnesses or where an unusual hazard exposure exists.

8.6. In the development of all training programs, the Commissioner shall consult with and advise affected employers, employees and employee representatives as to the effective means of preventing occupational injuries and illnesses.

W. Va. Code R. § 42-15-9 Optional Coverage By Political Subdivisions

9.1. Any county or municipality or department, division, bureau, board, council, agency or authority thereof or school district or special purpose district which elects to be covered by the Act shall provide to the Commissioner a true copy, with its seal attached, of the ordinance, resolution or other legal procedure followed explicitly electing coverage. The ordinance, resolution or other legal procedure followed shall specifically state the body will enter into an agreement with the Commissioner specifically identifying:

(a) Which workplace and/or group of employees are to be covered;

(b) That the coverage will be for a period of not less than twelve months from the date of the agreement with the Commissioner; and (c) That the body agrees to abide by all training requirements, citations, directives or orders of the Commissioner or commission which arise during the coverage period, and even if they become final after the coverage period expires.

42CSR15

Series 16 Standards For Weights And Measurers Inspectors Adoption Of NBS Handbook 130, 1987 Edition

W. Va. Code R. § 42-16-1 General

1.1. Scope. -- The National Bureau of Standards (NBS) Handbook 130, now known as the National Conference of Weights and Measures (NCWM) Handbook 130, adopts Uniform Laws and Regulations to achieve, to the maximum extent possible, standardization in weights and measures laws and regulations among the various States and local jurisdictions in order to facilitate trade between the States, permit fair competition among businesses, and provide uniform and sufficient protection to all consumers in weights and measures issues.

1.2. Authority. -- W. Va. Code §47-1-3(c).

1.3. Filing Date. -- May 8, 2009.

1.4. Effective Date. -- June 1, 2009.

W. Va. Code R. § 42-16-2 Incorporation By Reference

The National Bureau of Standards Handbook 130, now known as the National Conference of Weights and Measures (NCWM) Handbook 130, is hereby incorporated by reference as legislative rules and regulations governing inspectors and county and city sealers in the performance of their duties in accordance with W. Va. Code 47-1-19.

42CSR16

42CSR16

Series 17 Amusement Rides and Amusement Attractions Safety Act

W. Va. Code R. § 42-17-1 General

1.1. Scope. -- This rule sets the minimum safety standards for the installation, repair, use, operation, maintenance and inspection of amusement rides and attractions and establishes procedures for the registration, inspection, issuance of permits, collection of annual fees, and the certification of inspectors, special inspectors, and limited specialty inspectors.

1.2. Authority. -- W. Va. Code §21-10-3.

1.3. Filing Date. -- March 22, 2018.

1.4. Effective Date. -- March 30, 2018.

1.5. Sunset Date. This rule shall terminate and have no further force or effect on March 30, 2028.

W. Va. Code R. § 42-17-2 Application and Enforcement

2.1. Application. This rule applies to all persons, amusement rides and amusement attractions governed or otherwise within the purview of the Amusement Rides and Amusement Attractions Safety Act.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-17-3 Definitions

3.1. “Act” means the Amusement Rides and Amusement Attractions Safety Act, W. Va. Code §21-10- 1 et seq.

3.2. “ASTM International” refers to the organization formerly known as the American Society for Testing and Materials, 100 Barr Harbor Drive, P. O. Box C700, West Conshohocken, PA 19428-2959.

3.3. “Class A rated fire extinguisher” means a fire extinguisher that is rated as being effective against fires involving paper, wood, textiles and plastics.

3.4. “Class B rated fire extinguisher” means a fire extinguisher that is rated as being effective against flammable liquid fires.

3.5. “Class C rated fire extinguisher” means a fire extinguisher that is effective against fires with live electrical equipment.

3.6. “Coin operated,” as used in W. Va. Code §21-10-2(a), means and is limited to a kiddie ride that is operated by inserting a coin or coins and is not equipped with a method or way to control the ride’s operation, direction of travel or speed.

3.7. “Commissioner” means the Commissioner of the West Virginia Division of Labor or his or her designated representatives.

3.8. “Complete application” means an application that includes all the information required in

section 5 of this rule.

3.9. “Contested application” means an application that the Commissioner challenges, which can include, but is not limited to, incomplete information.

3.10. “Dark amusement ride” or “dark amusement attraction” means an amusement ride or amusement attraction that is enclosed so that all illumination is by artificial means.

3.11. “Days” means calendar days.

3.12. “Division” refers to the West Virginia Division of Labor, including all its sections and personnel.

3.13. “Emergency numbers” means the telephone numbers of a local ambulance, fire department, police department and physician that will respond to the scene of an emergency.

3.14. “Employee” means a person hired by an amusement ride or amusement attraction owner, operator, or agent, whether on a temporary or permanent basis, and who receives monies, goods, or services as compensation for services rendered.

3.15. “Final action” means the issuance or denial of an application for a permit.

3.16. “First aid” means the one-time treatment or observation of scratches, cuts not requiring stitches, burns, splinters and contusions.

3.17. “First-aid kit” means a weatherproof container with individually sealed packages for each type of item, as approved by a consulting physician.

3.18. “General public,” as referred to in W. Va. Code § 21-10-3, means any person riding an amusement ride, using an amusement attraction, or who is situated within the vicinity of an amusement ride or amusement attraction.

3.19. “Immediate family” means a person’s parents, spouse, sibling, child or guardian, or their spouses.

3.20. “Immediate site of operation” means the exact physical location where the amusement ride or attraction is being operated, including the street address, and the name of the town or city.

3.21. “Imminent danger” means a practice or condition which could reasonably be expected to cause death or serious injury to ride passengers, ride operators and/or the general public.

3.22. “Inflatable amusement device” or “air supported structure” means an inflated amusement ride or attraction designed for use that includes, but is not limited to, bouncing, climbing, sliding or interactive play, is made of flexible fabric and relies on air pressure to maintain its shape.

3.23. “Inspector” means an inspector employed by the Division of Labor.

3.24. “Limited specialty inspector” means an inspector certified by the Commissioner who is limited to inspecting inflatable amusement devices or air supported structures, climbing walls, trackless trains, EuroBungees and mechanical bulls.

3.25. “NAARSO” refers to the National Association of Amusement Ride Safety Officials, P. O. Box 638, Brandon, FL 33509.

3.26. “NEC” or the “National Electric Code,” published by the National Fire Protection Association, are standards for the safe installation of electrical wiring and equipment in the United States.

3.27. “NFPA” refers to the National Fire Protection Association, located at 1 Batterymarch Park, Quincy, MA 02169.

3.28. “NDT” means non-destructive testing.

3.29. “Operator assistant” means a person assisting the ride or attraction operator in the operation of any amusement ride or attraction.

3.30. “Ownership interest” means a person who owns any percentage of business assets.

3.31. “Play dates” means the dates that an amusement ride or amusement attraction is available to the general public.

3.32. “Qualified person” means an owner, operator, or agent or an employee of an owner, operator, or agent who has the documented training and experience to assemble, set up, operate, and disassemble an amusement ride or attraction.

3.33. “Serious injury” means an injury that results in death, loss of consciousness, or requires medical treatment by a physician or other medical professional for which a record is created.

3.34. “Service proven” means an amusement ride or attraction, including a major modification to an amusement ride or attraction, which has been in service to the public for a minimum of 5 years, without having a significant design-related failure or significant design-related safety issue that has not been mitigated.

3.35. “Special inspector” means an inspector certified by the Commissioner and not employed by the Division.

3.36. “Unscheduled cessation of operation” means an unplanned cessation of operation of an amusement ride or amusement attraction due to any mechanical, electrical, operational or structural malfunction, modification or adjustment or due to any environmental conditions, including weather.

W. Va. Code R. § 42-17-4 Adoption of Standards

4.1. The following ASTM International standards are adopted and incorporated by reference:

4.1.a. F 747 - 06, “Standard Terminology Relating to Amusement Rides and Devices,” except for the definitions of “serious injuries/illnesses” and “unscheduled cessation;”

4.1.b. F 770 - 11, “Standard Practice for Ownership, Operation, Maintenance, and Inspection of Amusement Rides and Devices;”

4.1.c. F 893 - 10, “Standard Guide for Auditing Amusement Rides and Devices;”

4.1.d. F 1159 - 03a, “Standard Practice for Design and Manufacture of Patron Directed, Artificial Climbing Walls, Dry Slide, Coin Operated and Purposeful Water Immersion Amusement Rides and Devices and Air-Supported Structures;”

4.1.e. F 1193 - 06, “Standard Practice for Quality, Manufacture, and Construction of Amusement Rides and Devices;”

4.1.f. F 2007 - 07a, “Standard Practice for Design, Manufacture, and Operation of Concession Go-Karts and Facilities;”

4.1.g. Section 14, “Fencing, Guardrails, Handrails, Gates, and Walkways for Amusement Rides and Devices” of F 2291 - 11, “Standard Practice for Design of Amusement Rides and Devices;”

4.1.h. F 2374 - 10, “Standard Practice for Design, Manufacture, Operation, and Maintenance of Inflatable Amusement Devices;”

4.1.i. Section 8, “Installation and Use,” and Section 9, “Maintenance and Operations” of F2375 - 09, “Standard Practice for Design, Manufacture, Installation and Testing of Climbing Nets and Netting/Mesh used in Amusement Rides, Devices, Play Areas and Attractions;”

4.1.j. F2376 - 08, “Standard Practice for Classification, Design, Manufacture, Construction, and Operation of Water Slide Systems;” and

4.1.k. F2460 - 11, “Standard Practice for Special Requirements for Bumper Boats.”

4.2. The following standard is adopted and incorporated by reference: NAARSO Certification Program Rules, October 27, 2009, Section 3, “Examination,” and Section 5, “Requirements for Certification and Renewals for an Inspector of Amusement Rides and Devices, Limited Specialty Certification and Renewal and Level 1 Certification and Renewal.”

4.3. The following standard is adopted and incorporated by reference: NFPA 70: National Electrical Code, 2014 Edition, Article 522, “Control Systems for Permanent Amusement Attractions,” and Article 525, “Carnivals, Circuses, Fairs, and Similar Events.”

4.4. The following standards are adopted and incorporated by reference: NFPA 10: Standard for Portable Fire Extinguishers, 2013 Edition, Chapter 7, “Inspection, Maintenance and Recharging of Portable Fire Extinguishers.”

W. Va. Code R. § 42-17-5 Permit to Operate Required; Permit Application Requirements; Permit Fee; Application Amendments

5.1. Before beginning the operation of any amusement ride or attraction in West Virginia, the owner or operator shall submit a written application for a permit at least 15 days before the first intended date of use and provide all information as the Commissioner may require on a form supplied by the Division.

5.2. An owner of an amusement ride or attraction shall include the following information on the permit application:

5.2.a. The name and address of the owner of the amusement ride or attraction;

5.2.b. Registration of the make, model, serial number, and the name and address of the manufacturer of the amusement ride or attraction;

5.2.c. Documentation of the liability insurance policy covering the amusement ride or attraction in an amount not less than that specified by W. Va. Code §21-10-12;

5.2.d. If required by the manufacturer of the amusement ride or attraction, the most current non-destructive testing report;

5.2.e. The completed “Notice of Scheduled Inspection” form;

5.2.f. A copy of the owner’s West Virginia business registration certificate; and

5.2.g. A schedule of play dates in West Virginia for the effective period of the requested permit, to include the following information:

5.2.g.1. Identification of the immediate site of operation;

5.2.g.2. The amusement ride or attraction setup date;

5.2.g.3. The starting date and time of usage for the ride or attraction; and

5.2.g.4. The amusement ride or attraction disassembly date.

5.3. The owner’s name and address on the West Virginia business registration certificate, the permit application, and the liability insurance policy shall be identical.

5.4. A permit to operate an amusement ride or attraction shall expire annually on December 31 st .

5.5. A permit to operate shall be valid only for the amusement rides or amusement attractions registered with the Commissioner.

5.6. A permit to operate shall be valid only for the play dates and locations provided on the application or on an amendment to the application.

5.7. The owner of the amusement ride or amusement attraction shall include the permit fee as set forth in W. Va. Code §21-10-4 for each amusement ride or device included with the permit application.

5.8. If an owner needs to amend any information on the permit application, he or she shall submit the amendment to the Commissioner on a form provided by the Division at least 24 hours before the first intended date of use of the amusement ride or attraction.

5.9. If an owner needs to amend, change or add play dates after he or she has submitted the initial permit application, he or she shall submit the amendment no later than 11:00 am on Friday for weekend play dates or no later than 11:00 am on Thursday if Friday is a legal holiday.

5.10. In addition to the requirements set forth in this section, the owner of a mobile amusement ride or attraction shall include the following information with the application on a form provided by the Commissioner:

5.10.a. The planned schedule of play dates in West Virginia, including the dates and the actual physical addresses of the locations; and

5.10.b. The name of the sponsor or land owner at each physical location where use of the amusement ride or attraction is planned.

5.11. Upon receipt of a complete uncontested application, the Commissioner shall issue a permit to operate within 30 days.

5.12. If the application is contested by the Commissioner, he or she shall have 90 days to take final action on the application.

5.12.a. The Commissioner shall promptly notify the applicant in writing, either by email or certified mail, return receipt requested, of the reasons for contesting the application and afford the applicant the opportunity to respond.

5.12.b. If, after notice, the applicant fails to respond to the Commissioner’s objections, the Commissioner shall deny the application.

W. Va. Code R. § 42-17-6 Insurance

6.1. Before a permit can be issued, the owner shall provide the Commissioner with a Certificate of Insurance documenting liability coverage for injury to persons arising out of the use of an amusement ride or attraction, in an amount not less than that specified by W. Va. Code §21-10-12.

6.2. The Commissioner may, at his or her discretion, require the owner of the amusement ride or attraction to submit the complete insurance policy or contract.

6.3. An owner shall ensure that the insurance policy is issued by a carrier licensed or approved to transact business by the WV Offices of the Insurance Commissioner.

6.4. The Commissioner shall not accept any policy of insurance unless it obligates the insurer to give written notice to the Commissioner at least 30 days before any proposed cancellation, suspension or non-renewal of the policy.

W. Va. Code R. § 42-17-7 Inspection of the Amusement Ride or Attraction Required; Conflict of Interest; Issuance of a Permit to Operate

7.1. The Commissioner shall provide written authorization to an inspector, a special inspector or a limited specialty inspector for the inspection of amusement rides or attractions.

7.1.a. The Commissioner shall include the date on which the inspector, the special inspector or the limited specialty inspector is authorized to conduct the inspection.

7.1.b. The Commissioner shall identify the specific amusement rides or attractions that the inspector, the special inspector or the limited specialty inspector is authorized to inspect.

7.1.c. If there are any changes to the Commissioner’s written authorization, the inspector, the special inspector or the limited specialty inspector shall notify the Commissioner of the changes prior to the completion of the inspection.

7.2. An inspector, a special inspector or a limited specialty inspector shall inspect an amusement ride or attraction according to the standards adopted in section 4 of this rule and determine that it is in compliance with the Act and this rule, before he or she can issue a permit to operate.

7.3. An inspector, a special inspector or a limited specialty inspector shall conduct each inspection of an amusement ride or attraction within the State of West Virginia.

7.4. An inspector, a special inspector or a limited specialty inspector shall not inspect an amusement ride or amusement attraction in the following circumstances, which the Commissioner considers to be a conflict of interest:

7.4.a. When the inspector, special inspector or limited specialty inspector, or his or her employer, his or her employee, or a member of his or her immediate family has an ownership interest in the amusement ride, in the amusement attraction or in the business that owns, leases or operates the amusement ride or attraction; or

7.4.b. When the inspector, special inspector or limited specialty inspector, or his or her employer, his or her employee, or a member of his or her immediate family has maintained, repaired, modified, built, or engineered the amusement ride or amusement attraction.

7.5. A permit to operate shall be in the form of a certificate of inspection, which shall include the date or dates of the inspection.

7.6. An inspector, a special inspector or a limited specialty inspector shall affix a copy of the certificate of inspection on the amusement ride or attraction or shall post the certificate of inspection in close proximity to the amusement ride or attraction where it is readily visible to the general public.

7.7. An inspector, a special inspector or a limited specialty inspector shall furnish a copy of the inspection report to the Division within 7 days of the inspection.

W. Va. Code R. § 42-17-8 Qualifications of Inspectors

An inspector shall meet the same qualifications as those of a special inspector or a limited specialty inspector as set forth in sections 9 and 10 of this rule and as appropriate for the amusement ride or amusement attraction device being inspected.

W. Va. Code R. § 42-17-9 Qualifications for the Certification of Special Inspectors; Renewal of Special Inspector Certification

9.1. A person applying for certification as a special inspector shall make application annually on a form provided by the Commissioner.

9.2. An applicant for certification as a special inspector shall submit evidence of the following with the application:

9.2.a. Documentation of a current NAARSO Level 1 Certification; or

9.2.b. Documentation of education, training and experience that is the equivalent of a NAARSO Level 1 Certification and documentation that he or she has successfully passed an examination that is substantially equivalent to a NAARSO examination; and

9.2.c. Evidence of insurance against errors and omissions in an amount of not less than $100,000.00 per occurrence, issued by one or more insurers licensed to transact insurance in West Virginia or approved as a non-admitted surplus lines carrier for risks located in this State.

9.3. A certified special inspector shall submit evidence of the following with the annual renewal application:

9.3.a. Documentation of a current NAARSO Level 1 Certification, including the continuing education requirements for a NAARSO Level 1 Certification; or

9.3.b. Documentation of completion of continuing education that is the equivalent of the NAARSO continuing education requirements for a NAARSO Level 1 Certification; and

9.3.c. Evidence of insurance against errors and omissions in an amount of not less than $100,000.00 per occurrence, issued by one or more insurers licensed to transact insurance in West Virginia or approved as a non-admitted surplus lines carrier for risks located in this State.

W. Va. Code R. § 42-17-10 Qualifications for the Certification of Limited Specialty Inspectors; Renewal of Limited Specialty Inspector Certification

10.1. A person applying for certification as a limited specialty inspector shall make application annually on a form provided by the Commissioner.

10.2. An applicant for certification as a limited specialty inspector shall submit evidence of the following with the application:

10.2.a. Documentation of a current NAARSO Limited Specialty Certification; or

10.2.b. Documentation of education, training and experience that is the equivalent of a NAARSO Limited Specialty Certification and documentation that he or she has successfully passed an examination that is substantially equivalent to a NAARSO examination; and

10.2.c. Evidence of insurance against errors and omissions in an amount of not less than $100,000.00 per occurrence, issued by one or more insurers licensed to transact insurance in West Virginia or approved as a non-admitted surplus lines carrier for risks located in this State.

10.3. A certified limited specialty inspector shall submit evidence of the following with the annual renewal application:

10.3.a. Documentation of a current NAARSO Limited Specialty Certification, including the training requirements for a NAARSO Limited Specialty Certification; or

10.3.b. Documentation of completion of training that is the equivalent of the NAARSO training requirements for a NAARSO Limited Specialty Certification; and

10.3.c. Evidence of insurance against errors and omissions in an amount of not less than $100,000.00 per occurrence, issued by one or more insurers licensed to transact insurance in West Virginia or approved as a non-admitted surplus lines carrier for risks located in this State.

W. Va. Code R. § 42-17-11 Privileges and Responsibilities of an Inspector, Special Inspector, or a Limited Specialty Inspector

11.1. An inspector, special inspector or limited specialty inspector who has been issued a certificate of competency by the Commissioner shall have the authority and responsibility to:

11.1.a. When authorized by the Division, conduct inspections of amusement rides and amusement attractions as required in section 7 of this rule;

11.1.b. Complete inspection reports and submit them to the Division by mail or email within 7 days of the inspection;

11.1.c. Comply with the Division’s written or verbal authorization to inspect specific amusement rides and amusement attractions on the specified date;

11.1.d. If the inspection cannot be conducted on the authorized date, or if there is any other change to the Division’s inspection authorization, notify the Division within 24 hours of the change;

11.1.e. Comply with the applicable ASTM standards when conducting an inspection of an amusement ride or amusement device; and

11.1.f. If the amusement ride or amusement device complies with the applicable ASTM standards, personally affix the permit to operate on each compliant amusement ride or amusement device.

11.2. A certified inspector, special inspector or limited specialty inspector shall possess and use the equipment and standards necessary to conduct inspections of amusement rides and amusement attractions.

11.3. A certified inspector, special inspector or limited specialty inspector shall have current editions of the Annual Book of ASTM Standards, Volume 15.07, and current copies of W. Va. Code §§21-10-1 through 21-10-19, and this rule available at a central location for reference and use.

W. Va. Code R. § 42-17-12 Suspension or Revocation of Certificate of Competency

12.1. The Commissioner shall have the authority to suspend or revoke a certificate of competency for good cause, including, but not limited to, the following:

12.1.a. taking unfair advantage of an owner of an amusement ride or amusement attraction;

12.1.b. failure to use adequate testing equipment;

12.1.c. failure to inspect amusement rides and amusement attractions in compliance with the applicable ASTM standards;

12.1.d. failure to personally affix a permit to operate on a compliant amusement ride or amusement attraction;

12.1.e. submission of falsified reports, documents or information to the Commissioner; or

12.1.f. failure to comply with the requirements of the Act or this rule.

12.2. If the Commissioner finds that suspension or revocation of a certificate of competency is warranted, he or she shall give written notice of the reasons to the inspector, special inspector or limited specialty inspector and shall afford him or her an opportunity to respond.

W. Va. Code R. § 42-17-13 Information Required at the Immediate Site of Operation

In addition to the requirements of ASTM International F 1193 - 06, “Standard Specification for Quality, Manufacture and Construction of Amusement Rides and Devices,” a qualified person shall have emergency telephone numbers on file and immediately available at the site of operation.

W. Va. Code R. § 42-17-14 Amusement Ride Assembly, Set Up, Disassembly and Operation

The following requirements are in addition to the requirements of ASTM International F770-11, “Standard Practice for Ownership, Operation, Maintenance and Inspection of Amusement Rides and Devices:”

14.1. An owner, operator or agent shall document his or her own training and experience and each qualified person’s training and experience as set forth in Section 4 of ASTM International F770-11, and shall provide this documentation to the Commissioner upon request.

14.2. A qualified person shall assemble, set up and disassemble each amusement ride or attraction.

14.3. At all times during the operation of an amusement ride or attraction, an owner, agent or operator shall have the number of qualified persons present at the immediate site of operation as required or recommended by the manufacturer and shall always have at least 1 qualified person present per amusement ride or attraction at all times during the operation of the ride or attraction.

14.4. A qualified person shall remain at the controls at all times during the operation of an amusement ride or attraction.

14.5. An operator assistant shall remain at his or her assigned station at all times during the operation of the amusement ride or attraction.

14.6. Upon request from a passenger, a qualified person shall halt an amusement ride or attraction and allow the passenger to disembark.

W. Va. Code R. § 42-17-15 Inflatable Amusement Device or Air-Supported Structure Assembly and Set Up

In addition to the requirements of ASTM International F 2374 - 10, “Standard Practice for Design, Manufacture, Operation, and Maintenance of Inflatable Amusement Devices,” an owner, operator or agent who rents or leases an inflatable amusement device or air-supported structure to an individual or an organization shall ensure that a qualified person assembles, and sets up each device or structure at the immediate site of operation, and clearly explains and provides written information for the safe operation and disassembly of the device or structure.

W. Va. Code R. § 42-17-16 Operational Testing

The following requirements are in addition to the requirements of ASTM International F 770-11, “Standard Practice for Ownership, Operation, Maintenance and Inspection of Amusement Rides and Devices:”

16.1. The owner, operator, or agent of an amusement ride or attraction may be required to perform an NDT of any hidden shaft in an amusement ride or attraction upon receipt of a written notice from the Commissioner.

16.1.a. The Commissioner’s written notice shall state a date by which the NDT must be completed.

16.1.b. The owner, operator or agent shall provide proof of the required NDT testing to the Commissioner, the special inspector, or a limited special inspector.

16.2. If the owner, operator or agent fails to comply with any testing requirements, the Commissioner may refuse to issue an operating permit or may revoke an existing permit and require the operation of an amusement ride or attraction to cease.

W. Va. Code R. § 42-17-17 Unscheduled Cessation of Operation

17.1. Following any unscheduled cessation of operation, the qualified person of the amusement ride or attraction shall immediately have the passengers safely unloaded from the ride or attraction.

17.2. If the qualified person determines that the amusement ride or attraction can safely resume operation, the qualified person shall first operate the ride or attraction without passengers to ensure that the cause of the unscheduled cessation of operation has been corrected.

17.3. The qualified person shall document any unscheduled cessation of operation, including the identification of the ride or attraction, the name of the operator or operator’s assistant operating the ride or attraction during the unscheduled cessation, and a complete description of the incident, including the date, time, weather conditions, location, ride speeds, number of passengers, etc.

W. Va. Code R. § 42-17-18 Imminent Danger

18.1. If the Commissioner determines that an amusement ride or attraction presents an imminent danger, he or she shall immediately give written notification to the amusement ride or attraction owner, operator or agent, and the event sponsor, if applicable, advising them that the amusement ride or attraction shall be immediately removed from service.

18.2. If the qualified person does not immediately remove the amusement ride or attraction from service, the Commissioner may seek a temporary or permanent restraining order or injunction to prohibit the continuing operation of the ride or attraction.

W. Va. Code R. § 42-17-19 Serious Injury or Fatality

19.1. If a member of the general public is involved in an amusement ride or attraction accident that results in a serious injury or a fatality, the qualified person shall immediately shut down the ride or attraction and secure the safety of other passengers or patrons and the general public.

19.2. A qualified person shall ensure that the scene of a serious injury or fatality is left intact from the time of the accident and shall ensure that the amusement ride or device involved is not removed from the scene of the accident without written authorization from the Commissioner or a law enforcement officer.

19.3. The qualified person who witnessed the accident or who operated the amusement ride or attraction when the accident occurred shall be available to be interviewed by the Commissioner.

19.4. The owner, operator or agent of the amusement ride or attraction shall make a verbal report of the serious injury or fatality to the Commissioner within 24 hours of its occurrence.

19.5. The qualified person shall document the serious injury or fatality, to include the full name, address and telephone number of the injured person, a description of the injuries, identification of the amusement ride or attraction involved, the names and addresses of the owner, operator or operator’s assistant, qualified person, or agent, and any other pertinent information describing the events leading up to the accident.

W. Va. Code R. § 42-17-20 Reports and Records

20.1. The owner of the amusement ride or attraction shall retain all reports, documents, photographs and records required by sections 17 or 19 of this rule for not less than 7 years from the date of the unscheduled cessation or serious injury or fatality.

20.2. If an owner or operator violates any provision of this section of the rule, the Commissioner may permanently revoke the permit to operate.

W. Va. Code R. § 42-17-21 Miscellaneous Safety Requirements

21.1. A qualified person shall not permit a ride or attraction operator or assistant who is, or who reasonably appears to be, under the influence of alcohol or a controlled substance, to operate or assist in the operation of the amusement ride or amusement attraction.

21.2. An amusement ride or amusement attraction operator or assistant who is under a doctor’s care and who is taking a prescribed medication that could affect his or her ability to safely operate the ride or attraction shall immediately report this information to the qualified person.

21.3. When requested by a passenger, an amusement ride or amusement attraction operator or assistant shall immediately halt the amusement ride or amusement attraction and allow the passenger to disembark.

21.4. Use of automotive equipment or other transportation devices for anchoring an amusement ride or amusement attraction while the amusement ride or amusement attraction is in operation:

21.4.a. If the amusement ride or amusement attraction was not designed by the manufacturer to be anchored with automotive equipment or other transportation devices, the use of such equipment or devices is prohibited.

21.4.b. If the amusement ride or amusement attraction was designed by the manufacturer to be anchored with automotive equipment or other transportation devices, the qualified person shall obtain prior approval from the Commissioner for the use of such equipment or devices and ensure that the following precautions are used at all times while the ride or attraction is in operation:

21.4.b.1. All vehicle batteries shall be disconnected and removed from the vehicle;

21.4.b.2. A steering wheel locking device such as a club shall be placed on the vehicle’s steering wheel and shall remain in the locked position;

21.4.b.3. Vehicles shall remain locked and all keys, including the key to the steering wheel locking device, shall be stored in a locked box in a secure location away from the vehicle;

21.4.b.4. There shall be a sign placed in the vehicle window that states “Do Not Move Vehicle Until The [name of the amusement ride or amusement device] Is No Longer In Operation And Has Been Unattached;”

21.4.b.5. All vehicle wheels shall be chocked; and

21.4.b.6. The manufacturer’s recommendations for anchoring the amusement ride or amusement device shall be followed at all times.

21.5. Electrical Systems.

21.5.a. The following wiring systems are approved:

21.5.a.1. A three phase five wire system that is grounded at the power source and constructed in accordance with the NFPA 70, 2014 National Electrical Code, Article 522 and Article 525:

Provided, That a three phase four wire system that is grounded at the power source and constructed in accordance with the NFPA 70, 2014 National Electrical Code, Article 522 and Article 525 is approved for any area of the state where a three phase five wire system is unavailable; and

21.5.a.2. A single phase four wire system that is grounded at the power source and constructed in accordance with the NFPA 70, 2014 National Electrical Code, Article 522 and Article 525.

21.5.b. When a permanent amusement ride or amusement attraction that has been service proven experiences a failure of its electrical service, all repairs, upgrades, or new service shall comply with the NFPA 70, 2014 National Electrical Code, Article 522.

21.5.c. For an amusement ride or amusement attraction in which water is a major medium, there shall be ground fault interruption circuitry for wiring systems of 240 volts or less, or 30 amps or less.

21.5.d. The owner or operator of an amusement ride or amusement attraction shall ensure that all electrical equipment and devices are guarded against access by unauthorized persons.

21.5.e. For a dark amusement ride or amusement attraction, the track or buss bar supplying voltage to the individual cars shall be maintained at 30 volts or less.

21.6. Fire Extinguishers and Smoke and Fire Detectors.

21.6.a. One Class A, B, and C rated fire extinguisher with a capacity of at least 10 pounds shall be placed on all generator units and fuel-powered amusement rides and attractions.

21.6.b. One Class A, B, and C rated fire extinguisher with a capacity of at least 5 pounds shall be placed at all non-fuel powered amusement rides and attractions.

21.6.c. A dark amusement ride or an amusement attraction shall have a minimum of 1 smoke and fire detector per 500 square foot area.

21.6.c.1. A dark amusement ride or amusement attraction owner or operator shall inspect each smoke and fire detector, and shall maintain them in good working condition.

21.6.c.2. A dark amusement ride or amusement attraction owner or operator shall inspect each smoke and fire detector before beginning operation in this state and every 30 days thereafter.

21.6.c.3. A dark amusement ride or amusement attraction owner or operator shall document each inspection in the ride or attraction maintenance log.

21.6.d. A dark amusement ride or amusement attraction owner or operator shall place at least one Class A, B, and C rated, 10 pound fire extinguisher at each entrance and exit of the ride or attraction and at each operator station that is not located directly at an entrance or exit.

21.6.e. The amusement ride or amusement attraction owner is responsible for the inspection, maintenance and recharging of fire extinguishers in accordance with NFPA 10, 2013 Edition, Chapter 7.

Series 18 Board Organization and Meeting Procedures, Hearing Procedures

W. Va. Code R. § 42-18-1 General

1.1. Scope. -- This procedural rule governs the West Virginia Board of Manufactured Housing Construction and Safety’s regular meetings, special meetings, and emergency meetings, establishes procedures for disciplinary hearings conducted by the Board, and establishes procedures for an appeal by any person adversely affected by a decision of the Board.

1.2. Authority. -- W. Va. Code §21-9-4 and §29A-5-1 et seq.

1.3. Filing Date. -- May 2, 2023.

1.4. Effective Date. -- June 5, 2023.

W. Va. Code R. § 42-18-2 Application and Enforcement

2.1. Application. -- This procedural rule applies to the Board, to the Board’s licensees, to any person desiring to attend a Board meeting or to address the Board, and to any person adversely affected by a decision of the Board.

2.2. Enforcement. -- The enforcement of this rule is vested in the Board and the Division of Labor as authorized by the Board.

W. Va. Code R. § 42-18-3 Definitions

3.1. “Act” means the West Virginia Manufactured Housing Construction and Safety Standards Act, W. Va. Code §21-9-1 et seq.

3.2. “Board” means the West Virginia Board of Manufactured Housing Construction and Safety and its authorized representatives.

3.3. “Cease and desist order” means an order issued by the Board or the Division of Labor pursuant to the provisions of the Act and 42 CSR 19 to an unlicensed person or entity who performs work for which a license is required or to a licensee who performs work outside of the license’s classifications.

3.4. “Chair” means the Commissioner of the West Virginia Division of Labor who presides over Board meetings pursuant to W. Va. Code §21-9-3(a). If the Commissioner is unable to attend a Board meeting or must recuse himself or herself from presiding over a Board meeting, or any part of a Board meeting, the Deputy Commissioner of the Division shall serve as the Chair in the Commissioner’s absence or recusal.

3.5. “Commissioner” means the Commissioner of the West Virginia Division of Labor and his or her authorized representatives.

3.6. Conflict of interest” means a circumstance or matter in which a Board member’s personal or business interests may influence, or give the appearance of influencing, his or her responsibilities as a Board member to act with impartiality.

3.7. “Contested case hearing” means an administrative evidentiary hearing before the Board in which a specific party’s rights, interests, privileges, or obligations are determined in accordance with W. Va. Code §29A-5-1 et seq.

3.8. “Days” means business days unless otherwise stated.

3.9. “Disciplinary hearing” or “hearing” means a proceeding in which the Board considers a person’s alleged conduct, as set forth in W. Va. Code §21-9-12, §21-9-12a, or W. Va. Code St. R. §42-19-14.1, and based upon findings of fact and conclusions of law, for which the Board may impose a penalty permitted by W. Va. Code §21-9-12 or §21-9-12a or disciplinary action permitted by W. Va. Code St. R. §42-19-14.2.

3.10. “Division” means the West Virginia Division of Labor and its authorized representatives.

3.11. “Emergency meeting” means a meeting convened by the Board for the limited purpose of addressing an unexpected event, circumstance, or situation that requires immediate attention because it poses an imminent threat to public health or safety, an imminent threat of damage to public or private property, or an imminent threat of material financial loss or other imminent substantial harm to a public agency, its employees, or the members of the public which it serves.

3.12. “Entity” means a corporation, general partnership, limited liability company, limited liability partnership, limited partnership, sole proprietorship, or any other form of business organization permitted by law.

3.13. “Executive session” means a Board meeting, or part of a Board meeting, that is closed to the public and is held in accordance with the provisions of the Open Governmental Proceedings Act, W. Va. Code §6-9A-4.

3.14. “Hearing examiner” means an individual or attorney at law appointed by the Board to conduct a disciplinary or contested case hearing.

3.15. “Immediate family” means a person’s parents, spouse, sibling, child or guardian, or their spouses.

3.16. “Licensee” means an individual or entity that has been issued a valid license to engage in manufactured housing activities in this state as a manufacturer, dealer, distributor, or contractor pursuant to the provisions of the Act and 42 CSR 19.

3.17. “Meeting” means the convening of the Board for which a quorum is required in order to make a decision or to deliberate toward a decision on any matter which results in an official Board action.

3.18. “Official action” means an action taken by the Board pursuant to its authority in the Act, this rule, or 42 CSR 19.

3.19. “Open Governmental Proceedings Act” means and includes the provisions of W. Va. Code §6-9A-1 et seq.

3.20. “Regular meeting” means a meeting held by the Board at least once, or more frequently as needed, during each calendar quarter to consider all matters that may properly come before the Board, to conduct its business, and to attend to its responsibilities as set forth in the Act.

3.21. “Special meeting” means a meeting convened by the Board for the consideration of only those matters designated by a Board member or members requesting the meeting, unless the agenda is otherwise changed by a majority vote of the Board.

3.22. “Unlicensed person” means an individual or entity engaging in manufactured housing activities for which a license is required without a valid license.

3.23. “Valid license” means a current license issued by the Board to an individual or entity to engage in specified manufactured housing activities in this state as a manufacturer, dealer, distributor, or contractor pursuant to the provisions of the Act and 42 CSR 19.

W. Va. Code R. § 42-18-4 Board Organization; How Meetings are Conducted; Conflict of Interest

4.1. Board members shall be appointed by the Governor and serve as provided by W. Va. Code §21-9-3.

4.2. The Commissioner shall serve as the Board’s permanent Chair.

4.3. The Chair shall have the same rights and privileges as other Board members.

4.4. The Chair shall preserve order and conduct all proceedings according to accepted parliamentary procedure.

4.5. Board members may participate in regular, special, or emergency meetings by telephone or other electronic means that permit voice or video identification of the member.

4.6. The Chair may appoint ad hoc subcommittees as needed from the Board’s members.

4.7. The Chair shall sign his or her name to the Board’s official papers and actions.

4.8. A Board member may not participate in any matter pending before the Board in which he or she, or a member of his or her immediate family, is or was, either a director, officer, owner, partner, employee, member, or stockholder at any time in the preceding 12 months in any activity regulated by the Board.

4.8.1. When a Board member has a conflict of interest, he or she shall disqualify or recuse himself or herself from any participation in the matter, including all discussion and votes.

4.8.2. A record of the Board member’s disqualification or recusal shall be noted in the meeting minutes.

W. Va. Code R. § 42-18-5 Regular Meetings

5.1. The Board shall commence all regular meetings at 10:00 a.m. unless the time is otherwise changed by a majority vote of the Board.

5.2. All regular meetings shall be conducted in the Division’s offices unless changed by a majority vote of the Board.

5.3. The Commissioner shall notify Board members of meeting dates and agenda items at least five days prior to regular meetings.

W. Va. Code R. § 42-18-6 Special Meetings; Emergency Meetings

The Board may convene special meetings or emergency meetings when called by the Chair or upon the written request of three Board members.

W. Va. Code R. § 42-18-7 Open Meetings; Notice of the Meeting; Agenda

7.1. All Board meetings shall be open to the public, except for executive sessions as permitted by W. Va. Code §6-9A-4 of the Open Governmental Proceedings Act.

7.2. Any person who desires to address the Board during a meeting may do so provided that the person registers his or her intent to address the Board at least 15 minutes prior to the time the meeting is scheduled to commence.

7.3. The Chair, in his or her sole discretion, may cause a person to be removed from a meeting who is disruptive or otherwise interferes with the orderly conduct of the meeting.

7.4. Except in the event of an emergency meeting requiring immediate official action, the Board shall electronically file a notice of every regular or special meeting with the Secretary of State for publication at least five days prior to the date of the meeting as required by W. Va. Code §6-9A-3(e). Each notice shall state the time, place, and purpose of the meeting.

7.5. The Division shall post the agenda of a regular or special meeting on the Division’s website at least five days before the meeting.

7.6. In the event of an emergency meeting requiring immediate official action, as required by W. Va. Code §6-9A-3(h), the Board shall electronically file a notice with the Secretary of State as soon as practicable prior to the meeting, provided that all Board members have been notified of the meeting by email or by telephone at least 24 hours in advance of the time scheduled for the commencement of the meeting. The notice filed with the Secretary of State shall state the time, place, and purpose of the meeting, and the facts and circumstances of the emergency.

W. Va. Code R. § 42-18-8 Quorum; Board Actions by Majority Vote Required; Vote By Proxy Prohibited

8.1. A majority of the Board members constitutes a quorum.

8.2. A majority vote of Board members present at a meeting constitutes an official Board action, provided a quorum is present.

8.3. Absent Board members may not be permitted to vote by proxy.

W. Va. Code R. § 42-18-9 Minutes

9.1. The Board shall provide for the preparation of written minutes of all its meeting.

9.2. The minutes shall include the following information:

9.2.1. The date, time, and place of the meeting;

9.2.2. The name of each Board member present and absent;

9.2.3. All motions, proposals, resolutions, and orders, the name of the Board member proposing and seconding the same, and their disposition;

9.2.4. The name of any Board member who disqualifies or recuses himself or herself from participation in a matter before the Board due to a conflict of interest; and

9.2.5. The results of all votes, and, upon the request of a Board member, the vote of each member, by name.

9.3. The minutes of each meeting shall be available to the public and posted on the Division’s website after they have been approved by the Board.

9.4. The minutes of an executive session shall be limited to the disclosure of material that is not inconsistent with W. Va. Code §6-9A-4.

W. Va. Code R. § 42-18-10 Notices of Hearing; Service of Notices of Hearing; Cease and Desist Order Hearings; Disciplinary Hearings; Contested Case Hearings; Appeals

10.1. The Board shall hold a hearing during its regularly scheduled meeting, or during a special or an emergency meeting, on all cease and desist orders issued, shall vote on whether to affirm or rescind the cease and desist order, and shall vote on the amount of the penalty to be imposed, if any.

10.1.1. The Board shall issue a written notice of hearing to each person who has been issued a cease and desist order at least 10 days prior to the date of the hearing.

10.1.2. The Board shall cause the notice of hearing to be served by email, by certified mail, return receipt requested, or by personal service.

10.1.3. A person who has been issued a cease and desist order has a right to attend the hearing in person, to be represented by an attorney at law licensed to practice in West Virginia, or to submit a written response to the Board for its consideration, and may offer testimony and submit relevant factual information.

10.1.4. Provided that the person to whom a cease and desist order has been issued receives proper notice of the hearing, the person’s failure to attend the hearing shall not preclude the Board from taking action on the cease and desist order.

10.1.5. After a hearing on a cease and desist order, the Board may issue a reprimand or assess a monetary penalty.

10.1.6. In considering whether to assess a monetary penalty and the amount of the penalty, the Board may consider whether a person has been previously issued a cease and desist order, whether the cease and desist order was issued based on a complaint from a consumer, or any other facts and circumstances that the Board considers relevant.

10.1.7. The Board shall issue a written order setting forth its decision on the cease and desist order.

10.1.8. Within 30 days of receipt of the Board’s order, any person adversely affected by the Board’s order may appeal the order to the Intermediate Court of Appeals as provided in W. Va. Code §51-11-1 et seq.

10.2. When a licensee is alleged to have engaged in conduct that is a ground for discipline as set forth in W. Va. Code §21-9-12, §21-9-12a, or W. Va. Code St. R. §42-19-14.1, the Board shall hold a disciplinary hearing during its regularly scheduled meeting, or during a special or an emergency meeting.

10.2.1. The Board shall issue a written notice of hearing to a licensee who is alleged to have engaged in one or more of the Act’s grounds for discipline at least 10 days prior to the date of the hearing.

10.2.2. The Board shall cause the notice of hearing to be served on the licensee by email, by certified mail, return receipt requested, or by personal service.

10.2.3. A licensee has a right to attend the hearing in person, to be represented by an attorney at law licensed to practice in West Virginia, or to submit a written response to the Board for its consideration, and may offer testimony and submit relevant factual information.

10.2.4. Provided that the licensee receives proper notice of the hearing, the licensee’s failure to attend the hearing shall not preclude the Board from taking action against the licensee.

10.2.5. The Board shall consider the facts and circumstances of the licensee’s conduct and any other information that the Board considers relevant, including the licensee’s previous disciplinary history, if any, with the Board.

10.2.6. If the Board finds that the licensee has engaged in the prohibited conduct, the Board shall vote on the disciplinary action to be imposed on the licensee.

10.2.7. The Board shall issue a written order to the licensee, setting forth its decision on the disciplinary action to be imposed.

10.3. Within 60 days of receipt of the Board’s disciplinary order, a licensee may submit a written appeal to the Board, stating the reasons or grounds for contesting the Board’s order.

10.3.1. The Board may conduct the appeal hearing or may appoint a hearing examiner to conduct the appeal hearing.

10.3.2. The Board or hearing examiner shall conduct the hearing pursuant to W. Va. Code §29A-5-1 et seq.

10.3.3. The Board or hearing examiner shall provide written notice of hearing to the licensee, setting forth the date, time, and place of the hearing.

10.3.4. The Board shall cause the notice of hearing to be served on the licensee by email, by certified mail, return receipt requested, or by personal service.

10.3.5. The hearing shall take place within 30 days of receipt of the licensee’s appeal, unless the time frame is waived by agreement of the parties.

10.3.6. The Board shall be responsible for the preparation of an official record of the hearing, which shall include all testimony and exhibits.

10.3.6.a. The Board may engage a court reporter to make a record of the hearing.

10.3.6.b. Upon request to the Board by any party involved in the hearing, a copy of the transcript and exhibits shall be furnished to the requesting party at the requesting party’s expense.

10.3.7. The Board and the licensee may be represented by an attorney at law licensed to practice in West Virginia, and may offer testimony and exhibits.

10.3.8. The Board shall issue a final order to the licensee concerning the appeal.

10.3.9. Within 30 days of receipt of the Board’s order, a person adversely affected may file an appeal to the Intermediate Court of Appeals as provided in W. Va. Code §51-11-1 et seq.

Series 19 Board of Manufactured Housing Construction and Safety Rule

W. Va. Code R. § 42-19-1 General

1.1. Scope. -- This legislative rule governs all matters arising pursuant to the Board of Manufactured Housing Construction and Safety’s statutory authority and as a State Administrative Agency under the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. § 5401 et seq.

1.2. Authority. -- W. Va. Code §21-9-4.

1.3. Filing Date. -- March 31, 2023.

1.4. Effective Date. -- May 1, 2023.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2028.

W. Va. Code R. § 42-19-2 Application and Enforcement

2.1. Application. -- This legislative rule applies to the Board and to all persons, materials, and transactions governed by or otherwise within the jurisdiction of the Board.

2.2. Enforcement. -- The enforcement of this legislative rule is vested in the Board and the Division of Labor as authorized by the Board.

W. Va. Code R. § 42-19-3 Definitions

In addition to the definitions in this section, the definitions in W. Va. Code §21-9-2 are incorporated herein by reference.

3.1. “Act” means the West Virginia Manufactured Housing Construction and Safety Standards Act, W. Va. Code §21-9-1 et seq.

3.2. “Advertisement” means any method used by a manufacturer, dealer, distributor, or contractor to promote its business to the general public. If a manufacturer, dealer, distributor, or contractor maintains an internet website, any such advertisement may direct potential customers to its online landing page for a link to the information required.

3.3. "Aggrieved consumer" means a consumer qualifying for compensation or repairs from the Recovery Fund, bond, or other financial assurance required in accordance with the Act and this rule.

3.4. "Board" means the West Virginia Board of Manufactured Housing Construction and Safety and its authorized representatives.

3.5. "Business location" means each physically separate and distinct operation or storage location maintained by a manufacturer, dealer, or distributor of manufactured housing.

3.6. “Cease and desist order” means an order issued by the Division of Labor pursuant to the provisions of the Act and this rule to an unlicensed person or entity who performs work for which a license is required or to a licensee who performs work outside of the license’s classifications.

3.7. "Commissioner" means the Commissioner of the West Virginia Division of Labor and his or her authorized representatives.

3.8. “Contested case hearing” means an administrative evidentiary hearing before the Board in which a specific party’s rights, interests, privileges, or obligations are determined in accordance with W. Va. Code §29A-5-1 et seq.

3.9. "Contractor" or "installer" means any person, including a primary contractor or subcontractor, who performs operations in this state at the occupancy site which render a manufactured home fit for habitation. This definition does not include a person who does work on a manufactured home which is owned or leased by that person. The operations include, without limitation: installation or construction of the foundation, positioning, blocking, leveling, supporting, tying down, connecting utility systems, making minor adjustments, or assembling multiple or expandable units. The operations also include transporting the unit to the occupancy site by other than a motor carrier regulated by the West Virginia Public Service Commission.

3.10. "DAPIA" means the Design Approval Primary Inspection Agency specified in the federal standards that is responsible for the evaluation and approval of a manufacturer’s home design and its quality assurance manuals.

3.11. "Dealer" means any person engaged in business in this state in the sale, accepting on consignment, leasing, or distribution of manufactured homes, primarily to persons who in good faith purchase or lease a manufactured home for purposes other than resale. The phrase "engaged in business in this state" includes operating business locations physically within West Virginia and operating business locations physically outside West Virginia when the dealer knows or should know that the manufactured home is to be initially located at an occupancy site in West Virginia.

3.12. "Defect" includes any defect in the performance, construction, components, or material of a manufactured home that renders the home or any part of the home not fit for the ordinary use for which it was intended, but which does not result in an unreasonable risk of injury or death to the occupants of the home.

3.13. "Distributor" means any person engaged in business in this state in the sale and distribution of manufactured homes for resale. The phrase "engaged in business in this state" includes operating business locations physically within West Virginia and operating business locations physically outside West Virginia when the distributor knows or should know that the manufactured home is to be resold in West Virginia.

3.14. "Division" means the West Virginia Division of Labor and its authorized representatives.

3.15. "Federal standards" means the National Manufactured Housing Construction and Safety Standards Act of 1974, 42 U.S.C. § 5401 et seq. and the federal manufactured housing construction and safety standards regulations codified in 24 C.F.R. parts 3280, 3282, 3284, 3285, 3286, 3288, and 3800.

3.16. “Final grading and water control” is an aspect of installation that means footing backfill, installing a water vapor barrier, and final grading of the site.

3.17. "Home placement evaluation" is an aspect of installation that means a soil compaction test, support system design, and a physical inspection of the site for compliance with all applicable installation standards as specified in section 10A of this rule.

3.18. "HUD" means the United States Department of Housing and Urban Development and its Secretary.

3.19. "HUD certification label" means the permanently affixed label placed on each manufactured home pursuant to 24 C.F.R. § 3280.11.

3.20. “HUD data plate” means the permanently affixed data plate placed on each manufactured home pursuant to 24 C.F.R. § 3280.5.

3.21. "Imminent safety hazard" means a hazard that presents an imminent and unreasonable risk of death or severe personal injury that may or may not be related to a failure to comply with an applicable federal standard.

3.22. "Informal presentation of views" means the opportunity for a manufacturer, dealer, distributor, or contractor to meet with the Division following a preliminary determination of a possible imminent safety hazard or serious defect or the issuance of a notice of violation.

3.23. “Inspections,” as used in section 8 of this rule, means and includes evaluations of the following: a manufactured home’s site location with respect to the home’s design, construction, and specific site conditions; site preparation and grading for drainage; foundation construction; anchorage; completion of ductwork, plumbing, fuel supply, and electrical systems; optional features such as skirting; close-up examination of the home’s interior and exterior; and operational checks and adjustments.

3.24. "Installation" or “aspect of installation” means the home placement evaluation, site preparation, installation of the support system, leveling and trimming the manufactured home, utility connections, installation of optional accessory items, and final grading and water control.

3.25. “Installation of optional accessory items” is an aspect of installation that means installation of fascia/skirting and ventilation.

3.26. “Installation of the support system” is an aspect of installation that means installation of footings, piers, foundation walls, or other equivalent support systems.

3.27. “IPIA” means the Production Inspection Primary Inspection Agency specified in the federal standards.

3.28. "Level and trim the manufactured home" is an aspect of installation that means positioning and leveling the manufactured home on its support system, anchoring the home, close-in, trim and adjustments, and non-electrical cross-over connects.

3.29. "Manufacturer" means any person engaged in manufacturing or assembling manufactured homes, including any person engaged in importing manufactured homes into this state for resale.

3.30. "Manufactured home" means a structure, transportable in one or more sections, which in transport is eight body feet or more in width or 40 body feet or more in length or, when erected on site, is 320 or more square feet, and which is built on a permanent chassis and designed to be used as a dwelling with or without a permanent foundation when connected to the required utilities, and includes the plumbing, heating, air-conditioning, and electrical systems contained in the structure. The term also includes any structure which meets all the requirements of this definition except the size requirements and with respect to which the manufacturer voluntarily files a certificate which complies with 24 C.F.R. § 3282.13. Calculations used to determine the number of square feet in a structure will be based on the structure's exterior dimensions measured at the largest horizontal projections when erected on site. Unless otherwise stated, all references to a "manufactured home" means a new or used manufactured home.

3.31. "Noncompliance" means a failure of a manufactured home to comply with a federal standard that does not constitute a defect, serious defect, or imminent safety hazard.

3.32. “Notice of violation” means a notice issued by the Board to a licensee that a violation of the federal standards, the Act, or this rule has occurred which specifies the nature of the alleged violation and the amount of time in which the licensee has to correct or contest the violation.

3.33. "Person" means any individual, trust, estate, partnership, firm, corporation, association, or any other legal business entity recognized by this state, including any state or political subdivision.

3.34. "Purchaser" or "consumer" means an individual, other than a manufacturer, dealer, distributor, contractor, or transporter, purchasing a manufactured home in good faith for purposes other than resale or contracting for the installation of a manufactured home.

3.35. “Recovery Fund” means the State Manufactured Housing Recovery Fund established pursuant to W. Va. Code §21-9-10 and this rule.

3.36. "SAA" means the State Administrative Agency specified in the federal standards.

3.37. "Serious defect" means any failure to comply with an applicable federal standard that renders the manufactured home or any part of the manufactured home not fit for the ordinary use for which it was intended and which results in an unreasonable risk of injury or death to occupants of the affected manufactured home.

3.38. “Site” or “occupancy site” means the area encompassing the exterior perimeter of the manufactured home plus 10 feet.

3.39. “Site preparation” is an aspect of installation that means clearing, providing access to, and rough grading the site.

3.40. “State” means the state of West Virginia.

3.41. “Support system" means the piers, foundation walls, and other equivalent systems approved in accordance with subsections 10A.2 and 10A.3 of this rule, and their footings, anchorage to the manufactured home, shims, and any combination thereof that, when properly installed, support the manufactured home.

3.42. “Transporter” or "transporter only contractor" means a person who, for compensation, transports a manufactured home upon a public road in this state to an occupancy site and who performs no installation work.

3.43. “Utility connections” is an aspect of installation that means the connection of utility services, including electric, gas, sewer systems, and water.

W. Va. Code R. § 42-19-4 Licensure of Manufacturers

4.1. No person may engage in the business of a manufacturer in this state without a license. Each manufacturer who desires to engage in business in this state shall apply to the Board for a license. A manufacturer shall maintain one license for each business location in this state. A manufacturer who maintains all of its business locations out of this state, but who ships, imports, or delivers manufactured homes into this state, and is considered to be engaged in business in this state, shall maintain one license for each out-of-state business location which will ship, import, or deliver manufactured homes into this state.

4.2. A manufacturer's license is valid for up to one year and expires on June 30 of each year, unless sooner revoked or suspended by the Board.

4.3. Any manufacturer who desires to be licensed shall submit an initial application on forms supplied by the Board. Each application shall be accompanied by a fee of $750 for each business location the manufacturer desires to license and shall contain all information required by the Board, including, but not limited to:

4.3.1. The legal and trade name of the manufacturer;

4.3.2. The address of each business location the manufacturer desires to license;

4.3.3. The phone number of each business location the manufacturer desires to license;

4.3.4. The names and addresses of the owners, officers, and directors of the manufacturer;

4.3.5. Evidence of the manufacturer’s legal authority to engage in business in this state;

4.3.6. Proof of payment to the Recovery Fund as specified in section 15 of this rule;

4.3.7. A notarized affidavit stating compliance with all applicable federal standards, provisions of the Act, and rules of the Board signed by a responsible officer or person with full legal authority to bind the applicant to its terms;

4.3.8. The name of the DAPIA or DAPIAs who inspect the manufacturer;

4.3.9. The name of the IPIA or IPIAs who inspect the manufacturer;

4.3.10. A copy of all DAPIA-approved manufactured home designs currently in use;

4.3.11. A copy of all DAPIA-approved quality assurance programs currently in use;

4.3.12. A copy of all manufacturing plant certification reports issued by an IPIA in the past 12 months; and

4.3.13. A list of the names of all dealers and/or distributors in this state that are authorized to receive the manufacturer’s product line.

4.4. Any manufacturer currently licensed in this state shall submit an application for licensure renewal on or before June 30 of each year. Any renewal application is a valid license for a period of 30 days, unless sooner rejected by the Board. The application shall be accompanied by a renewal fee of $750 and shall contain all information required by the Board as specified in 4.3 of this section.

4.5. The Board shall grant or refuse any initial or renewal application for a manufacturer's license within 30 days after a proper and complete application has been filed. If any application is found by the Board to not constitute a proper and complete application, the Board may request additional information.

4.6. The Board shall grant an initial or renewal manufacturer's license if the manufacturer sufficiently demonstrates each of the following:

4.6.1. The manufacturer’s adequate financial capacity;

4.6.2. The manufacturer’s record of compliance with any lawful orders of the Board or other equivalent agency for any other jurisdiction, including the lack of revocation, suspension, or limitation on the manufacturer’s license in this state or other jurisdiction; and

4.6.3. The manufacturer’s compliance with all applicable federal standards, including receipt of all DAPIA and IPIA approvals and certifications, all applicable provisions of the Act, and rules of the Board.

4.7. The Board may grant initial and renewal licenses for manufacturers for some business locations and deny them for others if the facts justify that action.

4.8. Each manufacturer shall conspicuously display its license at each of its licensed business locations and the license number shall be included in all advertisements.

4.9. A manufacturer’s license is not transferable. Any change in the person holding the license, including a change in the ownership of a sole proprietorship, a change of a partner in a partnership, or the creation of a new corporate or other business entity, requires a new license.

W. Va. Code R. § 42-19-5 Licensure of Dealers and Distributors

5.1. No person may engage in the business of a dealer and/or distributor in this state without a license. Each dealer and/or distributor who desires to engage in business in this state shall apply to the Board for a license. A dealer and/or distributor shall maintain one license for each business location in this state it operates.

5.2. A dealer's and/or distributor's license is valid for up to one year and expires on June 30 of each year, unless sooner revoked or suspended by the Board.

5.3. Any dealer and/or distributor who desires to be licensed shall submit an initial application on forms supplied by the Board. Each application shall be accompanied by a fee of $250 for each business location the dealer and/or distributor desires to license and shall contain all information required by the Board, including, but not limited to:

5.3.1. The legal and trade name of the dealer and/or distributor;

5.3.2. The address of each business location the dealer and/or distributor desires to license;

5.3.3. The phone number of each business location the dealer and/or distributor desires to license;

5.3.4. The names and addresses of the owners, officers, and directors of the dealer and/or distributor;

5.3.5. Evidence of the dealer’s and/or distributor’s legal authority to engage in business in this state;

5.3.6. Proof of payment to the Recovery Fund as specified in section 15 of this rule;

5.3.7. A notarized affidavit stating compliance with all applicable federal standards, provisions of the Act, and rules of the Board signed by a responsible officer or person with full legal authority to bind the applicant to its terms;

5.3.8. The list of the names of all manufacturers in or out of this state whose product line the dealer and/or distributor is authorized to receive; and

5.3.9. A list of the names of all salespersons employed by the dealer and/or distributor.

5.4. Any dealer and/or distributor currently licensed in this state shall submit an application for licensure renewal on or before June 30 of each year. Any renewal application is a valid license for a period of 30 days, unless sooner rejected by the Board. The application shall be accompanied by a renewal fee of $250 and shall contain all information required by the Board as specified in 5.3 of this section.

5.5. The Board shall grant or refuse any initial or renewal application for a dealer's and/or distributor's license within 30 days after a proper and complete application has been filed. If any application is found by the Board to not constitute a proper and complete application, the Board may request additional information.

5.6. The Board shall grant an initial or renewal dealer's and/or distributor's license if the dealer and/or distributor sufficiently demonstrates each of the following:

5.6.1. The dealer’s and/or distributor’s adequate financial capacity;

5.6.2. The dealer’s and/or distributor’s record of compliance with any lawful orders of the Board or other equivalent agency of any other jurisdiction, including the lack of revocation, suspension, or limitation of the dealer’s and/or distributor’s license in this state or other jurisdiction; and

5.6.3. The dealer’s and/or distributor’s compliance with all applicable federal standards, provisions of the Act, and rules of the Board.

5.7. The Board may grant initial and renewal licenses for dealers and/or distributors for some business locations and deny them for others if the facts justify that action. However, if one business location qualifies as both a dealer and distributor under this rule, only one license is required for that business location.

5.8. Each dealer and/or distributor shall conspicuously display its license at each of its business locations and at any worksite where the dealer and/or distributor is performing services and the license number shall be included in all advertisements.

5.9. A dealer’s and/or distributor’s license is not transferable. Any change in the person holding the license, including a change in the ownership of a sole proprietorship, a change of a partner in a partnership, or the creation of a new corporate or other business entity, requires a new license.

W. Va. Code R. § 42-19-5A Initial Training and Continuing Education for Dealers and/or Distributors; Proof of Attendance. 5A.1. Each dealer and/or distributor that performs any aspect of installation shall attend a HUD-approved initial training course as required by 24 C.F.R. § 3286.803(b)(2) and obtain proof of attendance. 5A.2. Eight hours of HUD-approved continuing education shall be required for dealer and/or distributor licensure renewal every three years, or less, if determined necessary by the Board. 5A.3. Each dealer and/or distributor shall submit proof of attendance to the Board prior to a license being issued or renewed. The proof of attendance shall have been acquired within the preceding 24-month period from the date of application. 5A.4. Each dealer and/or distributor shall pay a fee directly to the entity providing the training course or continuing education class

W. Va. Code R. § 42-19-6 Licensure of Contractors/Installers and Transporter-Only Contractors

6.1. No person may engage in the business of a contractor in this state without a license. Each contractor who desires to engage in business in this state shall apply to the Board for a license. A contractor is required to maintain only one license. A contractor whose principal office or place of business is out of this state, but who desires to perform contractor services in this state, shall maintain a license.

6.2. A contractor's license is valid for up to one year and expires on June 30 of each year, unless sooner revoked or suspended by the Board.

6.3. Any contractor who desires to be licensed shall submit an initial application on forms supplied by the Board. Each application shall be accompanied by a fee of $125 and shall contain all information required by the Board, including, but not limited to:

6.3.1. The legal and trade name of the contractor;

6.3.2. The address of the contractor;

6.3.3. The phone number of the contractor;

6.3.4. The names and addresses of the owners, officers, and directors of the contractor;

6.3.5. Evidence of the contractor’s legal authority to engage in business in this state, including compliance with the West Virginia Contractor Licensing Act, W. Va. Code §30-42-1 et seq.;

6.3.6. Proof of payment to the Recovery Fund as specified in section 15 of this rule; and

6.3.7. A notarized affidavit stating compliance with all applicable federal standards, provisions of the Act, and rules of the Board signed by a responsible officer or person with full legal authority to bind the applicant to its terms.

6.4. Any contractor currently licensed in this state shall submit an application for licensure renewal on or before June 30 of each year. Any renewal application is a valid license for a period of 30 days, unless sooner rejected by the Board. The application shall be accompanied by a renewal fee of $125 and shall contain all information required by the Board as specified in 6.3 of this section.

6.5. The Board shall grant or refuse any initial or renewal application for a contractor's license within 30 days after a proper and complete application has been filed. If any application is found by the Board not to constitute a proper and complete application, the Board may request additional information.

6.6. The Board shall grant an initial or renewal contractor’s license if the contractor sufficiently demonstrates each of the following:

6.6.1. The contractor’s adequate financial capacity;

6.6.2. The contractor’s record of compliance with any lawful orders of the Board or other equivalent agency for any other jurisdiction, including the lack of revocation, suspension, or limitation on the contractor’s license in this state or other jurisdiction; and

6.6.3. The contractor’s compliance with all applicable federal standards, provisions of the Act, and rules of the Board.

6.7. Each contractor shall conspicuously display its license at its business location and at any worksite where the contractor is performing services and the license number shall be included in all advertisements.

6.8. A contractor's license is not transferable. Any change in the person holding the license, including a change in the ownership of a sole proprietorship, a change of a partner in a partnership, or the creation of a new corporate or other business entity, requires a new license.

6.9. A contractor involved solely in the transportation of manufactured homes to the occupancy site, and who is not regulated by the West Virginia Public Service commission, may apply for a “transporter only” contractor license.

6.9.1. A transporter shall meet the general requirements of a contractor but is not required to participate in payment to the Recovery Fund as specified in section 15 of this rule.

6.9.2. In lieu of Recovery Fund participation, the transporter shall maintain an insurance policy approved by the Board and obtained from an insurer authorized to conduct business in this state in the amount of not less than $50,000 for each manufactured home transported and $500,000 in the aggregate. The policy shall insure the transporter against liability for damages to a manufactured home in the transit process.

6.9.3. The insurer shall provide the Board with at least 30 days’ notice of any intent of cancellation, suspension, or non-renewal of the policy.

W. Va. Code R. § 42-19-6A Initial Training and Continuing Education for Contractors/Installers; Proof of Attendance. 6A.1. Each contractor or installer that performs any aspect of installation shall attend an initial training course as required by 24 C.F.R. § 3286.803(b)(2) and obtain proof of attendance. 6A.2. Eight hours of HUD-approved continuing education shall be required for renewal every three years, or less, if determined necessary by the Board. 6A.3. Each contractor or installer shall submit proof of attendance to the Board prior to a license being issued or renewed. The proof of attendance shall have been acquired within the preceding 24-month period from the date of application. 6A.4. Each contractor or installer shall pay a fee directly to the entity providing the training course or continuing education class

W. Va. Code R. § 42-19-7 Adoption of Federal Standards; Designation by HUD as an SAA

7.1. No person may manufacture, ship, import, deliver, distribute, sell, lease, or install a manufactured home in this state that violates any applicable federal standard or provision of the Act or rules of the Board.

7.2. The following federal standards are incorporated in this rule in their entirety by reference:

7.2.1. "Manufactured Home Construction and Safety Standards," 24 C.F.R. Part 3280;

7.2.2. "Manufactured Home Procedural and Enforcement Regulations," 24 C.F.R. Part 3282;

7.2.3. "Model Manufactured Home Installation Standards," 24 C.F.R. Part 3285;

7.2.4. "Manufactured Home Installation Program," 24 C.F.R. Part 3286; and

7.2.5. "Manufactured Home Dispute Resolution Program," 24 C.F.R. Part 3288.

7.3. The Board shall maintain its qualifications to continue approval by HUD as a State Administrative Agency (SAA).

W. Va. Code R. § 42-19-8 Business Location Inspections; Private Home Inspections; DAPIAs; IPIAs

8.1. The Board may enter any business location of a manufacturer, dealer, distributor, or contractor engaged in business in this state to inspect or otherwise determine compliance with the federal standards, the Act, and rules of the Board.

8.1.1. During a business location inspection, the Board may inspect and copy all records maintained by the manufacturer, dealer, distributor, or contractor pursuant to the federal standards, the Act, and rules of the Board.

8.1.2. A business location inspection may occur, announced or unannounced, at any time between 8:00 a.m. and 5:00 p.m., Monday through Friday, or at other reasonable times considered necessary by the Board.

8.2. The Board may provide inspections to private manufactured home sites to aid in the resolution of consumer complaints and to comply with its obligations under 24 C.F.R. § 3286.803.

8.2.1. To aid in the resolution of consumer complaints filed by a consumer against a licensed manufacturer, dealer, distributor, or contractor, the Board may provide, free of charge, one initial inspection and one follow-up inspection relative to each consumer complaint: Provided, That the Board may charge the licensee an inspection fee for any subsequent follow-up inspection which is necessitated by the licensee’s failure to comply with an order of the Board.

8.2.2. In order to comply with its obligations under 24 C.F.R. § 3286.803, the Board may conduct random inspections of private manufactured home installations. The Board may provide, free of charge, one initial inspection and one follow-up inspection relative to each random inspection: Provided, the Board may charge the licensed manufacturer, dealer, distributor, or contractor an inspection fee for any subsequent follow-up inspection which is necessitated by the licensee’s failure to comply with an order of the Board. In order to afford an opportunity to attend a random inspection, the Board shall notify, via email, all licensees that were involved in the installation of the date and time of the random inspection at least five business days in advance.

8.2.3. The Board may charge an inspection fee of $29 per hour, not to exceed $290 per day, plus reimbursement for mileage and other reasonable expenses incurred in connection with an inspection authorized in 8.2 of this section. The inspection fee is payable to the Board within 30 days of completion of the inspection.

8.3. The federal standards contemplate the establishment of primary inspection agencies known as DAPIAs and IPIAs. These primary inspection agencies are responsible for the enforcement of the federal standards and the performance of the following functions:

8.3.1. Approval by a DAPIA of a manufacturer’s manufactured home design to assure that it is in compliance with federal standards;

8.3.2. Approval by a DAPIA of a manufacturer’s quality control program to assure that it is compatible with the design;

8.3.3. Approval by an IPIA of a manufacturer’s plant facility and manufacturing process to assure that the manufacturer can perform its approved quality control program and can produce manufactured homes in conformance with its approved design; and

8.3.4. Performance of ongoing inspections of the manufacturing process to assure that the manufacturer is continuing to perform its approved quality control program and, with respect to these aspects of manufactured homes inspected, is continuing to produce manufactured homes in conformance with its approved designs, and in compliance with federal standards.

8.4. The Board may develop a DAPIA and/or an IPIA to carry out the federal enforcement functions. The Board may file all required applications and plans with HUD in order to obtain approval as a DAPIA and/or an IPIA, including a state-exclusive IPIA. The Board may employ any personnel for approved DAPIAs and IPIAs pursuant to 24 C.F.R. § 3282.352.

8.5. If the Board does not seek or obtain the approval of HUD to act as a DAPIA and\or an IPIA, it may participate in joint team monitoring of DAPIAs and IPIAs in conjunction with HUD. The Board may also independently monitor the performance of DAPIAs and IPIAs acting within this state in coordination with HUD monitoring.

8.6. The Board may charge the following inspection fees when performing any of its duly authorized functions as an approved DAPIA and/or IPIA:

8.6.1. A fee of $30 per hour, not to exceed $300 per day, for conducting manufactured home initial design or design change evaluations;

8.6.2. A fee of $30 per hour, not to exceed $300 per day, for conducting manufacturer quality control program evaluations;

8.6.3. A fee of $30 per hour, not to exceed $300 per day, for conducting initial and ongoing manufacturing plant inspections; and

8.6.4. An amount representing reimbursement of mileage and other reasonable expenses incurred in connection with any of the inspections authorized in 8.6 of this section.

8.6.5. The inspection fees are payable to the Board within 30 days of completion of the inspection.

8.7. Each manufacturer shall pay a monitoring inspection fee in an amount established by HUD for each transportable section of a manufactured housing unit produced by a manufacturer in this state. This monitoring inspection fee is payable directly to HUD.

W. Va. Code R. § 42-19-9 Labeling, Recordkeeping, and Required Quarterly Reports

9.1. The HUD certification label affixed to each transportable section of a manufactured home for sale or lease in the United States is the only label required by the Board. No manufactured home shall be shipped, imported, delivered, distributed, sold, leased, or installed into or in this state without a HUD certification label.

9.2. The HUD data plate affixed to each manufactured home for sale or lease in the United States is the only data plate required by the Board. No manufactured home shall be shipped, imported, delivered, distributed, sold, leased, or installed into or in this state without a HUD data plate.

9.3. No person may remove a HUD certification label or HUD data plate from a manufactured home.

9.4. Each licensed manufacturer shall maintain records of the following for each manufactured home manufactured in this state, or shipped, imported, or delivered to a dealer, distributor, purchaser, or other person in this state:

9.4.1. The information contained on the HUD data plate;

9.4.2. The date the HUD certification label was affixed to the manufactured home; and

9.4.3. The name and address of the dealer, distributor, purchaser, or other person to whom the manufactured home was first shipped, imported, or delivered by the manufacturer.

9.5. Each licensed manufacturer shall report the information specified in 9.4 of this section to the Board on a quarterly basis, covering the periods July 1 to September 30, October 1 to December 31, January 1 to March 31, and April 1 to June 30. These reports are due no later than October 31, January 31, April 30, and July 31, respectively. If no work is performed during a quarterly period, the licensee shall submit the report marked “NO ACTIVITY”.

9.6. Each licensed dealer and/or distributor shall maintain records of the following for each manufactured home shipped, imported, or delivered to it by a manufacturer, distributor, dealer, or other person:

9.6.1. The information contained on the HUD data plate;

9.6.2. Whether the manufactured home contains a HUD certification label;

9.6.3. Whether the manufactured home was inspected upon delivery to determine if it was damaged, and whether all furniture, appliances, fixtures, and other devices were in place and operable;

9.6.4. The extent of any damage found upon inspection;

9.6.5. Whether any alterations to the manufactured home were made by the dealer and/or distributor, including any repairs;

9.6.6. The name and address of the purchaser or other person to whom the manufactured home was shipped, imported, delivered, sold, or leased by the dealer and/or distributor; and

9.6.7. The name and license number of each contractor or installer that performed any aspect of installation of a manufactured home sold or leased by the dealer and/or distributor.

9.7. Each licensed dealer and/or distributor shall report the information specified in 9.6 of this section to the Board on a quarterly basis, covering the periods July 1 to September 30, October 1 to December 31, January 1 to March 31, and April 1 to June 30. These reports are due no later than October 31, January 31, April 30, and July 31, respectively. If no work is performed during a quarterly period, the licensee shall submit the report marked “NO ACTIVITY”.

9.8. Each licensed contractor shall maintain records of the following for each manufactured home it transports and/or installs in this state:

9.8.1. The information contained on the HUD data plate;

9.8.2. Whether the manufactured home contains a HUD certification label;

9.8.3. The method of transport and/or installation of the manufactured home;

9.8.4. Whether the manufactured home was damaged in any way during transport and/or installation, and the extent of the damage;

9.8.5. Whether any alterations to the manufactured home were made by the contractor, including any repairs; and

9.8.6. The name and address of the purchaser or other person to whom the manufactured home was transported and/or installed.

9.9. When hired by or working directly for a consumer, each licensed contractor shall report the information specified in 9.8 of this section to the Board on a quarterly basis, covering the periods July 1 to September 30, October 1 to December 31, January 1 to March 31, and April 1 to June 30. These reports are due no later than October 31, January 31, April 30, and July 31, respectively. If no work is performed during a quarterly period, the licensee shall submit the report marked “NO ACTIVITY”.

9.10. Nothing in this rule shall be construed to excuse or exempt any manufacturer, dealer, distributor, or contractor from complying with any recordkeeping or reporting requirements mandated by the federal standards.

W. Va. Code R. § 42-19-10A Consumer Manuals; Installation. 10A.1. The seller shall provide each purchaser of a new manufactured home in this state with a HUD-approved consumer manual for the manufactured home purchased. No manufacturer, dealer, distributor, or contractor may interfere with the distribution of a HUD-approved consumer manual

10A.2. 10A.2.1. The initial installation of a new manufactured home installed in this state shall be installed: 10A.2.1.a. In accordance with the home manufacturer’s recommendations contained in or accompanying the consumer manual required by 24 C.F.R. Part 3282 and this section: Provided, That such recommendations equal or exceed the protections provided by the Manufactured Home Installation Standards, 24 C.F.R. Part 3285; or 10A.2.1.b. In accordance with a competent alternate design certified in writing by a registered professional engineer and/or architect prior to installation: Provided, That such alternate design is drawn and sealed by a registered professional engineer and/or architect and certified to be consistent with the home design, in compliance with federal standards and the Act, and approved by the manufacturer and the DAPIA pursuant to 24 C.F.R. § 3285.2; or 10A.2.1.c. In accordance with the Manufactured Home Installation Standards, 24 C.F.R. Part 3285. 10A.2.2. A used manufactured home installed in this state shall be installed: 10A.2.2.a. In accordance with the home manufacturer’s recommendations contained in or accompanying the consumer manual required by 24 C.F.R. Part 3282 and this section: Provided, That such recommendations equal or exceed the protections provided by the Manufactured Home Installation Standards, 24 C.F.R. Part 3285; or 10A.2.2.b. In accordance with a competent alternate design certified in writing by a registered professional engineer and/or architect prior to installation: Provided, That such alternate design is drawn and sealed by a registered professional engineer and/or architect and certified to be consistent with the home design, in compliance with federal standards and the Act, and approved by the manufacturer and the DAPIA pursuant to 24 C.F.R. § 3285.2; or 10A.2.2.c. In accordance with the recommendations published by the National Fire Protection Association 225 Model Manufactured Home Installation Standard. 10A.2.3. If the dealer contracted with the purchaser to install the manufactured home, the dealer shall maintain a written record of which method of installation was used. If the dealer did not contract with the purchaser to install the home, the dealer shall maintain a written record signed by the dealer and purchaser specifying that the purchaser has agreed to make separate arrangements with a licensed installer for installation of the home unless the consumer contracts to install the manufactured home as provided in section 10B of this rule. This written record is not required to be maintained longer than a period of five years. 10A.2.4. Installation of a manufactured home as defined in subsection 3.24 of this rule shall only be performed by a licensed dealer or installer or by the consumer as provided in section 10B of this rule. 10A.3. Frostline considerations are mandatory for all manufactured home installations in this state. For the purposes of 10A.2 of this section, a frostline shall be determined by local ordinance of a municipality or county. If the installation of the manufactured home in this state is in a municipality or county that has not provided a specific numerical standard, the frostline may be the designated numerical standard set forth in the consumer manual required by 24 C.F.R. Part 3282, or as determined by a registered professional engineer and/or architect and approved by the Board for the individual site of the manufactured home installation. In the absence of any of these specific designated numerical standards, frostline is as follows: 10A.3.1. 30 inches from grade level for all perimeter footings; and 10A.3.2. 30 inches from grade level for footings under the I-beams, center piers, and inset blocking piers if a perimeter fascia enclosure is not to be installed: Provided, That the footings may be 12 inches from grade level for footings under the I-beams, center piers, and inset blocking piers if a perimeter fascia enclosure and vapor barrier are installed: 10A.3.2.a. within 21 days of the home installation if the home is installed between November 1 and March 30; or 10A.3.2.b. before November 1 for homes installed after March 30.

W. Va. Code R. § 42-19-10B Consumer Installation of a Manufactured Home; Installation Deficiencies

10B.1. 10B.1.1. To ensure compliance with federal standards, manufactured homes should be installed by a licensed dealer or installer. However, every consumer has the right to personally install or independently hire a licensed dealer or installer for installation of his or her manufactured home: Provided, That if a consumer so chooses, the consumer is responsible for any consequences resulting from the consumer’s installation: Provided, however, That this section applies only to those transactions in which the consumer agrees in writing to assume responsibility for part of the manufactured home installation. 10B.1.2. Only a licensed dealer or installer shall conduct the installation aspects of the manufactured home placement evaluation and the level and trim of the manufactured home due to safety concerns and the technical expertise required.

10B.2. 10B.2.1. Prior to the execution of a written agreement for the purchase of a manufactured home or prior to the date of installation, a licensed dealer or installer shall inform each consumer of the following: 10B.2.1.a. The risks of improper installation of the manufactured home, including, but not limited to, the impact upon the manufacturer’s warranty, decreased performance of the manufactured home, and other relevant concerns known to the dealer or installer, and matters which make time of the essence in completing the consumer’s assumed responsibilities; 10B.2.1.b. The installation standards for a new or used manufactured home specified in section 10A of this rule; 10B.2.1.c. The requirement that all parties, other than the consumer, who engage in installation of manufactured homes be licensed pursuant to the Act; and 10B.2.1.d. The dealer or installer will conduct an on-site review for all aspects of installation for which the consumer assumed responsibility as prescribed in 10B.6 of this rule. 10B.2.2. The licensed dealer or installer may inform the consumer of the information specified in 10B.2.1 of this section in any appropriate manner, including, but not limited to, through brochures, manuals, illustrations, videos, written correspondence, or oral communication. 10B.3. If the consumer agrees to assume all or part of the responsibility of installation of his or her manufactured home, the licensed dealer or installer and the consumer shall execute a written agreement that specifies each party’s installation responsibilities. 10B.4. A licensed dealer or installer shall conduct an initial home placement evaluation to determine accessibility to the site, feasibility of the chosen method of installation and the applicable installation standards as specified in section 10A of this rule, whether the site can be improved to assure proper water drainage and proper soil compaction. 10B.4.1. A licensed dealer or installer shall conduct the initial home placement evaluation in accordance with the Initial Home Placement Evaluation form prescribed by the Division and available from the Division’s website (labor.wv.gov). 10B.4.2. The licensed dealer or installer shall document all findings of the evaluation on the Initial Home Placement Evaluation form, provide the consumer with a copy, and maintain a copy as a record of the findings. 10B.5. Where the consumer has assumed the responsibility for installation of the support system or for site preparation that cannot be performed after the manufactured home is leveled, the licensed dealer or installer shall review such aspects of installation to determine compliance with the applicable installation standards as specified in section 10A of this rule. 10B.5.1. The licensed dealer or installer shall conduct the review in accordance with the Consumer Site Preparation Evaluation form prescribed by the Division and available from the Division’s website (labor.wv.gov). 10B.5.2. The licensed dealer or installer shall document all findings of the review on the Consumer Site Preparation Evaluation form, provide the consumer with a copy, and maintain a copy as a record of the findings. 10B.6. A licensed dealer or installer shall conduct an on-site review in all instances for which the consumer has assumed all or part of the responsibilities for the manufactured home’s installation, as defined in subsection 3.24 of this rule. 10B.6.1. A licensed dealer or installer shall conduct the on-site review not less than 60 days nor more than 180 days after the date of execution of the written agreement for the purchase or installation of the manufactured home or after the delivery date of the manufactured home to the consumer. 10B.6.2. A licensed dealer or installer shall conduct the on-site review in accordance with the Dealer/Installer On-Site Review form prescribed by the Division and available from the Division’s website (labor.wv.gov) which identifies all aspects of installation, as defined in subsection 3.24 of this rule. 10B.6.3. The licensed dealer or installer shall evaluate all aspects of installation for which the consumer assumed responsibility and document any deficiencies in the installation on the On-Site Review form. If deficiencies are found, the dealer or installer shall provide the consumer with a copy of the completed Dealer/Installer On-Site Review form and, in accordance with 10B.7 of this section, written notice to the consumer of the potential risks associated with the consumer's failure to properly comply with his or her assumed installation responsibilities. 10B.6.4. The licensed dealer or installer conducting the on-site review and the consumer shall sign and date the On-Site Review form at the time of the review’s conclusion. 10B.6.5. The licensed dealer or installer shall maintain a copy of the completed Dealer/Installer On-Site Review form for a period of not less than five years.

10B.7. 10B.7.1. If a licensed dealer or installer finds a deficiency while conducting an on-site review in accordance with 10B.6 of this section, the dealer or installer shall document the deficiency in the Dealer/Installer On-Site Review form as prescribed in 10B.6.3 of this section. 10B.7.1.a. The licensed dealer or installer shall provide a copy of the completed Dealer/Installer On-Site Review form containing the documented deficiencies found to the consumer who assumed responsibility for all or part of the installation of the manufactured home. 10B.7.1.b. The licensed dealer or installer shall also provide notice to the consumer of the potential risks associated with the consumer's failure to comply with his or her assumed installation responsibilities on a form prescribed by the Division and available from the Division’s website (labor.wv.gov). 10B.7.1.c. The licensed dealer or installer shall attach The Dealer/Installer Consumer Installation Deficiency Notice form to the Dealer/Installer On-Site Review form and provide a copy of the completed forms to the consumer. 10B.7.2. All provisions of this section also apply to a licensed installer who contracts with a consumer to install part of the manufactured home.

W. Va. Code R. § 42-19-11 Alterations and Repairs

11.1. No alteration or repair shall be made to any manufactured home by a dealer, distributor, or contractor which directly causes a failure of the manufactured home to comply with applicable federal standards, provisions of the Act, and rules of the Board.

11.2. Alterations or repairs made to a used manufactured home by a dealer, distributor, or contractor shall be designed to promote compliance with applicable federal standards, provisions of the Act, and rules of the Board.

11.3. A dealer, distributor, or contractor shall not be obligated to bring a used manufactured home into compliance with applicable federal standards, provisions of the Act, and rules of the Board. It is the intent of this provision to allow and encourage dealers, distributors, and contractors to make desirable alterations and repairs to used manufactured homes, including alterations and repairs which do not bring the used homes into compliance with all applicable standards, so long as the alterations and repairs made do not directly create a condition of noncompliance which did not previously exist.

W. Va. Code R. § 42-19-12 Transportation

12.1. The transportation of a manufactured home shall be accomplished in a manner that allows the manufactured home to withstand the adverse effects of transportation shock and vibration without its degradation or the degradation of its component parts. In no event shall any transportation method be utilized which causes a failure of any manufactured home to comply with applicable federal standards, provisions of the Act, and rules of the Board.

12.2. Manufactured homes shall not be transported at speeds in excess of 55 miles per hour.

W. Va. Code R. § 42-19-13 Complaints; Notice of Violation; Informal Presentation of Views; Contested Case Hearing

13.1. Any person alleging a violation of the federal standards, the Act, or rules of the Board may file a complaint with the Board. All complaints shall be in writing and include the name, address, and phone number of the complainant.

13.1.1. Upon receipt of any complaint or other information indicating the possible existence of a noncompliance, defect, serious defect, or imminent safety hazard under the federal standards, the Board shall forward the complaint or information to the manufacturer of the manufactured home and to the SAA of the state where the home was manufactured.

13.1.2. The Division shall review each complaint filed with the Board.

13.1.2.a. If the Division determines that the matters raised in the complaint are outside of the Board’s jurisdiction, the Division shall inform the complainant in writing.

13.1.2.b. If the Division determines that the matters raised in the complaint are within the Board’s jurisdiction, the Division shall conduct an investigation and an inspection of the manufactured home and the relevant records maintained by the manufacturer, dealer, distributor, or contractor. 13.2.

13.2.1. If, after investigation, the Division determines that no violation of the federal standards, the Act, or rules of the Board occurred, the Division shall inform the complainant and the manufacturer, dealer, distributor, or contractor in writing.

13.2.2. If, after investigation, the Division determines that a violation of the federal standards, the Act, or rules of the Board occurred, the Division shall issue a Notice of Violation to the responsible licensee that specifies the condition found and the federal standard or state law provision violated.

13.2.3. The licensee shall be afforded no longer than 30 days from receipt of notice to correct the condition specified in the Notice of Violation.

13.3. Any licensee issued a Notice of Violation may request, within 10 days of receipt, an informal presentation of views to contest either the Notice of Violation or the reasonableness of the amount of time afforded to correct the condition violating the federal standard or state law provision.

13.3.1. If a licensee fails to timely request an informal presentation of views, the Notice of Violation becomes a final order of the Board.

13.3.2. If a licensee timely requests an informal presentation of views, the Division shall schedule it within 30 days of receipt of the request.

13.3.3. The time specified in the Notice of Violation to correct the condition is stayed pending the informal presentation of views unless the condition constitutes an imminent safety hazard or serious defect.

13.3.4. The informal presentation of views is not an adversarial proceeding and it may be written or oral. The rules of evidence do not apply, testimony is not required to be taken under oath, nor is cross-examination permitted.

13.3.5. The Division shall inform the licensee in writing by certified mail of its findings within five days of the conclusion of the informal presentation of views.

13.4. A licensee may request for the matter to be referred to the Board as a contested case within five days of receipt of notice of the Division’s findings after the informal presentation of views.

13.4.1. If the licensee timely requests for the matter to be referred to the Board for a contested case hearing, the Board may refer the matter to a hearing examiner within five days of receipt of the request.

13.4.2. The hearing examiner shall schedule the hearing to commence within 45 days of receipt of the referral and shall send written notice to the parties specifying the date, time, and place of the hearing at least 10 days prior to the hearing.

13.4.3. The licensee must request from the hearing examiner, in writing, any additional stay of time to correct the condition specified in the Notice of Violation. The hearing examiner shall grant an additional stay upon good cause shown.

13.4.4. Following the contested case hearing, the hearing examiner may direct the parties to submit proposed findings of fact and conclusions of law within 20 days of the hearing: Provided, That if a transcript of the hearing is requested at the hearing, the parties shall have 20 days from receipt of the transcript to submit the proposed findings of fact and conclusions of law.

13.4.5. The hearing examiner shall submit a recommended decision to the Board within 30 days of receipt of the parties’ proposed findings of fact and conclusions of law. The hearing examiner may recommend the imposition of any appropriate disciplinary sanction permitted by this rule.

13.4.6. The Board shall accept, reject, or modify the hearing examiner’s recommended decision and issue a final order within 30 days of receipt of the recommended decision.

W. Va. Code R. § 42-19-14 Grounds for Discipline; Disciplinary Sanctions

14.1. The Board may impose disciplinary sanctions upon a licensee for any of the following reasons:

14.1.1. The manufacture, sale, lease, offer for sale or lease, or the introduction, delivery, or importation into this state of any manufactured home on or after the effective date of any applicable federal standards, provisions of the Act, or rules of the Board, which does not comply with that standard: Provided, however, That this subsection shall not apply to:

14.1.1.a. Any person who establishes that he or she did not have reason to know in the exercise of due care that the manufactured home is not in compliance with any applicable federal standards, provisions of the Act, or rules of the Board; or

14.1.1.b. Any person who, prior to the first purchase, holds a certificate by the manufacturer or importer of the manufactured home that the manufactured home complies with all applicable federal standards, unless the person knows that the manufactured home does not comply;

14.1.2. The failure to furnish notification and correction of any defect as required by 42 U.S.C. § 5414 and 24 C.F.R. § 3282.401 through § 3282.416;

14.1.3. The failure to issue a certification required by 42 U.S.C. § 5415, or to issue a certification that a manufactured home complies with all applicable federal standards if that person knows or in the exercise of due care has reason to know that the certification is false or misleading in a material respect;

14.1.4. The failure to establish and maintain records, make reports, and provide information as the Board requires under this rule, or the failure to permit, upon request of a person duly authorized by the Board, the inspection or copying of appropriate books, papers, records, or documents, or the failure to permit entry or inspection relative to determining whether a manufacturer, dealer, distributor, or contractor has acted or is acting in compliance with the federal standards, provisions of the Act, or rules of the Board;

14.1.5. The issuance of a certification pursuant to 42 U.S.C. § 5403(h) if that person knows or in the exercise of due care has reason to know that the certification is false or misleading in a material respect;

14.1.6. The submission of any information or statements to the Board, HUD, a DAPIA, or an IPIA, which are known by the person submitting the information to be false or misleading in a material respect;

14.1.7. The criminal conviction of any person by any competent state or federal court, which directly relates to the business of a manufacturer, dealer, distributor, or contractor;

14.1.8. The application to any person by any competent state or federal authority of any disciplinary action which directly relates to the business of a manufacturer, dealer, distributor, or contractor, including but not limited to, a fine, license suspension, license revocation, or license denial;

14.1.9. The operation of any business location engaged in business in the state as a manufacturer, dealer, distributor, or contractor without a license;

14.1.10. The failure to maintain adequate financial assurance as required by the Act and this rule;

14.1.11. The refusal to allow the Board to conduct inspections as permitted by the Act and this rule;

14.1.12. The failure to pay any fee required by law, this rule, or the federal standards;

14.1.13. The removal of any HUD certification label or HUD data plate from a new or used manufactured home;

14.1.14. The destruction or permanent removal by a manufacturer, dealer, distributor, or contractor of a HUD-approved consumer manual from a manufactured home, thereby depriving a consumer of the use of a manual;

14.1.15. The violation of the state or federal transportation or installation standard applicable to a new or used manufactured home;

14.1.16. Engaging in any deception or false or fraudulent representations or deceitful practices in selling, obtaining financing to consummate a sale, or representing a product whereby injury is or may be sustained by any consumer of a new or used manufactured home or the manufactured home industry. If the violation pertains to prohibited actions in obtaining financing, then the knowledge or complicity of the consumer shall not be considered as a defense to this violation;

14.1.17. The shipment of a manufactured home to a dealer and/or distributor not properly licensed by this state;

14.1.18. The acceptance of a manufactured home by a dealer and/or distributor from a manufacturer not properly licensed by this state;

14.1.19. The use of contract installation or repair services by a manufacturer, dealer, or contractor/installer that is not properly licensed by this state;

14.1.20. The misappropriation of funds of a consumer or prospective consumer of a new or used manufactured home;

14.1.21. The failure to fulfill any written or implied warranty obligation applicable to any new or used manufactured home;

14.1.22. The failure to comply with any order issued by the Board, or any settlement agreement with the Board or Division; or

14.1.23. The violation of any other rule promulgated by the Board.

14.2. Upon a determination by the Board that a person has committed any of the violations in 14.1 of this section, the Board may apply any one or more of the following sanctions:

14.2.1. A public reprimand;

14.2.2. An administrative penalty not to exceed $1,000 per violation;

14.2.3. Suspension of the license of a manufacturer, dealer, distributor, or contractor;

14.2.4. Revocation of the license of a manufacturer, dealer, distributor, or contractor; or

14.2.5. Denial of an application for licensure or licensure renewal filed by any manufacturer, dealer, distributor, or contractor.

14.3. The Board may impose an administrative penalty for each separate violation with respect to each manufactured home, except that the maximum penalty shall not exceed $1 million for any related series of violations occurring within one year from the date of the first violation.

14.4. A suspension may be issued by the Board for any period of time up to and including the remaining term of the current license of the manufacturer, dealer, distributor, or contractor in question. At the end of the designated suspension period, the manufacturer, dealer, distributor, or contractor may apply for reinstatement of a license pursuant to the provisions of subsections 4.3, 5.3, or 6.3 of this rule, as applicable.

14.5. A revocation may be issued by the Board for any period of not less than one nor more than five years. At the end of the designated revocation period, the manufacturer, dealer, distributor, or contractor may re-apply for a license pursuant to the provisions of subsections 4.3, 5.3, or 6.3 of this rule, as applicable.

14.6. A determination by the Board to deny an application for licensure disqualifies the applicant from re-applying at any time during the subsequent 12 month period immediately following the denial, unless the Board agrees to consider a re-application within a lesser time period by designating its willingness to consider a re-application within its order of denial.

14.7. Sanctions may be imposed by the Board only after the person to be disciplined has been afforded an opportunity for hearing.

14.8. Nothing in this rule shall be construed to limit or restrict in any manner other civil or criminal remedies available under law to any person.

W. Va. Code R. § 42-19-14A Cease and Desist Orders

Upon a determination that a person is engaged in manufactured housing business in this state without a valid license, the Division shall issue a cease and desist order requiring that person to immediately cease all operations in this state. The person can immediately engage in manufactured housing business upon issuance of a license. After a hearing as required by W. Va. Code §21-9-12a, the Board may impose a penalty of not less than $200 nor more than $1,000 upon any person engaging in manufactured housing business in this state without a valid license.

W. Va. Code R. § 42-19-15 State Manufactured Housing Recovery Fund

15.1. The Board shall collect the following annual assessment fee in satisfaction of each licensed manufacturer's, dealer's, distributor's, or contractor's required assurance of financial responsibility:

15.1.1. $2,500 for each manufacturer’s licensed business location;

15.1.2. $1,000 for each dealer’s and/or distributor’s licensed business location; and

15.1.3. $500 for each licensed contractor.

These assessments shall be collected annually at the time of the filing of all initial and renewal license applications: Provided, That if the balance of the Recovery Fund on June 30 of any year equals or exceeds $300,000, then no assessments shall be collected from any previously licensed manufacturer, dealer, distributor, or contractor for the next licensure period. New applicants for licensure shall pay the applicable assessment fee regardless of the balance of the Recovery Fund.

15.2. The Board is authorized at any time to make special assessments upon all licensed manufacturers, dealers, distributors, and contractors if the Board determines that the assessments are necessary to maintain the fiscal integrity of the Recovery Fund. In no event may a special assessment be issued by the Board until or unless the balance of the Recovery Fund falls below $250,000.

15.3. Payments by the Board from the Recovery Fund.

15.3.1. The Board may make payment from the Recovery Fund for any of the reasons authorized by W. Va. Code §21-9-10(d), after the responsible licensee has been afforded an opportunity to be heard on a Notice of Violation issued, and has failed to correct the violations as directed by the Board.

15.3.2. When a licensee fails to make repairs to a manufactured home as directed by the Board, or as agreed between the licensee and the Board or Division, the Board may determine the fair market value of the cost of obtaining those repairs and contract with a third-party licensee to effect those repairs.

15.3.3. Payments from the Recovery Fund shall be made if:

15.3.3.a. The Recovery Fund balance is sufficient to pay the amount directed;

15.3.3.b. The aggrieved consumer has assigned to the Board all rights and claims relating to the repairs that he or she has against the licensee; and

15.3.3.c. The aggrieved consumer has agreed to subrogate the Board to all of his or her rights to the extent of the payment amount directed.

15.4. Payments from the Recovery Fund are limited to a per manufactured home maximum of:

15.4.1. $10,000 for any one violation by any one licensed manufacturer, dealer, distributor, or contractor;

15.4.2. $12,500 for any series of violations by any one licensed contractor;

15.4.3. $25,000 for any series of violations by any one licensed dealer and/or distributor; and

15.4.4. $75,000 for any series of violations by any one licensed manufacturer.

15.5. Payments from the Recovery Fund are limited to actual expenses incurred, as determined by the Board. The Recovery Fund may not be used to pay for any incidental expenses of the aggrieved consumer, including claims for personal injuries, claims for property damage other than to the home itself, inconvenience, alternate housing, attorney's fees, punitive or exemplary damages, or other legal or court costs.

15.6. The decisions to determine expenses incurred, repairs to be made, the fair market value of the cost of repairs, whether to contract for repairs, and whether to make any payment from the Recovery Fund lie within the sole discretion of the Board.

15.7. Licensee civilly liable to the Board for reimbursement of payments from the Recovery Fund.

15.7.1. When the Board authorizes payment from the Recovery Fund, the responsible licensee is civilly liable to the Board for any amount paid from the Recovery Fund, plus interest calculated at the amount of legal interest as established by the West Virginia Supreme Court of Appeals from the date the Board’s payment was made. The Board may immediately suspend or revoke the license of the manufacturer, dealer, distributor, or contractor without further proceedings until full reimbursement to the Recovery Fund is made.

15.7.2. Any person that maintains a substantial ownership interest (5% or more) in any licensed manufacturer, dealer, distributor, or contractor that has failed to provide for full reimbursement to the Recovery Fund is disqualified from maintaining any substantial ownership interest in any other licensed manufacturer, dealer, distributor, or contractor. The Board may deny any application for licensure or renewal, where it appears that a person owns 5% or more of the applicant until full reimbursement is made to the Recovery Fund.

15.8. Nothing in this rule shall be construed to limit or restrict in any manner other civil or criminal remedies available under the law to any person.

15.9. The Board may not waive the Recovery Fund requirements of the Act and this rule.

Series 20 Rules Of Procedure For Contested Case Hearings

W. Va. Code R. § 42-20-2 General

1.1. Scope. -- These procedural rules establish the general procedures for conducting contested case hearings dealing with a wage collection under the West Virginia Wage Payment and Collection Act, Wages For Public Improvements Act, Equal Pay Act, and Minimum Wages And Maximum Hours Act.

1.2. Authority. -- W. Va. Code ''21-5-11 and 13; 21-5B-2; 21-5C-6

1.3. Filing Date. -- September 28, 1992

1.4. Effective Date. -- October 28, 1992

W. Va. Code R. § 42-20-2 Definitions

2.1. "Commissioner" means the Commissioner of the West Virginia Division of Labor.

2.2. All definitions contained in W. Va. Code ''21-5-1, 21-5B-1, and 21-5C-1, are incorporated herein by reference.

W. Va. Code R. § 42-20-3 Notice of Hearing

3.1. Notice of hearing in all cases shall be given at least ten (10) days prior to the date of the hearing, stating:

3.1.1. the time, day, and location of the hearing;

3.1.2. a short plain statement of the matter asserted;

3.1.3. a statement of intention to appoint a hearing examiner if one is to be appointed pursuant to Section 8 of these rules.

W. Va. Code R. § 42-20-4 How Hearings are to be Conducted

4.1. Any party shall have the right to be represented by an attorney-at-law, duly qualified to practice in the State of West Virginia, or to represent himself; Provided, that corporations shall be represented by an attorney-at-law, not a corporate officer or any other person.

4.2. The Division of Labor will present its case regarding whether wages and damages are due under the specified wage and hour laws. The party(ies) alleged to owe such wages and damages shall thereafter be afforded the opportunity to present its case in defense. The Division of Labor will then be allowed to present its rebuttal, if so chosen.

4.3. Every party shall have the right of cross-examination of witnesses who testify.

4.4. Following the presentation of all the evidence, every party, shall have the right to offer argument, not to exceed a reasonable time limit as determined by the Commissioner or the hearing examiner.

W. Va. Code R. § 42-20-5 Continuation and Adjournment

5.1. Hearings may be continued from one day to another or adjourned to a later date or a different place b announcement thereof at the hearing or by appropriate notice to all parties. A written motion for a continuance shall be filed at least five (5) days prior to the hearing date that is subject of the continuance motion.

5.2. Each party shall be permitted only one (1) motion for a continuance related to any particular hearing.

5.3. Any continuance shall not exceed fifteen (15) days from the last scheduled date of the hearing.

W. Va. Code R. § 42-20-6 Transcript of Reported Testimony and Evidence

6.1. What reported. -- All testimony, evidence, arguments and rulings on the admissibility of testimony and evidence shall be reported by stenographic notes and characters or by mechanical means.

6.2. Request from any party. -- Upon the request to the Commissioner, or hearing examiner, from any party to the hearing, all reported materials shall be transcribed and a copy thereof furnished to such party at the requesting party's expense.

6.3. Responsibility for transcript. -- The Commissioner shall have the responsibility for making arrangements for the transcription of the reported testimony and evidence.

W. Va. Code R. § 42-20-7 Submission of Proposed Finding of Fact and Conclusion of Law; Time for Submission

7.1. Any party may submit to the Commissioner or hearing examiner, proposed findings of fact and conclusions of law within ten (10) days of the conclusion of a hearing, or a date agreed upon by all parties, or in the event that the proceedings of a hearing are transcribed, within ten (10) days from the date final transcript is available.

W. Va. Code R. § 42-20-8 Appointment of Hearing Examiner; Function of Hearing Examiner

8.1. The Commissioner may, in his discretion, appoint a hearing examiner who shall be empowered to subpoena witnesses and documents administer oaths and affirmations, to examine witnesses under oath, to rule on evidentiary questions, to hold conferences for the settlement or simplification of issues by consent of the parties and to otherwise conduct hearings.

W. Va. Code R. § 42-20-9 Orders; content

9.1. Every final order entered by the Commissioner, or hearing examiner, following a hearing conducted pursuant to these rules, shall be made pursuant to the provisions of W. Va. Code '29A-5-3 of 1931, as amended. Such orders shall be entered within thirty (30) days following the submission of all documents and materials, including transcripts and proposed findings of fact and conclusion of law.

'42-30-10. Appeal.

10.1. An appeal from any final order or ruling entered in accordance with these regulations shall be in accordance with the provisions of W. Va. Code '29A-5-4 of 1931, as amended.

'42-2-11. Severability.

11.1. If any provision of these rules or the application thereof to any person or circumstance shall be held invalid, such invalidity thereof shall not affect the provision or application of these regulations which can be given effect without the invalid provision or application and to this end the provisions of these regulations are declared to be severable.

42CSR20

Series 21 Elevator Safety Act

W. Va. Code R. § 42-21-1 General

1.1. Scope. -- This legislative rule governs the competency and certification of inspectors, the registration and inspection of elevators, the issuance of certificates of operation, fees, permits for repair, enforcement and penalties.

1.2. Authority. -- W. Va. Code §§ 21-3C-6(a), 10 and 11(a).

1.3. Filing Date. -- March 22, 2018.

1.4. Effective Date. -- March 30, 2018.

1.5. Sunset Date. This rule shall terminate and have no further force or effect on March 30, 2028.

W. Va. Code R. § 42-21-2 Application and Enforcement

2.1. Application. This legislative rule governs all persons, firms, corporations, government entities, materials and transactions covered by the Elevator Safety Act.

2.2. Enforcement. The enforcement of this legislative rule is vested with the West Virginia Division of Labor or its designated representatives as authorized by the Elevator Safety Act.

W. Va. Code R. § 42-21-3 Definitions

3.1. “Act” means the Elevator Safety Act, W. Va. Code §21-3C-1 et seq.

3.2. “ASME” refers to the American Society of Mechanical Engineers, Two Park Avenue, New York, NY 10016-5990.

3.3. “Certificate of acceptance” means and includes a completed device registration form and acceptance inspection report, certifying that a newly installed or modernized elevator has been inspected and installed in compliance with ASME Code A17.1.

3.4. “Certificate of competency” means the document issued by the Commissioner to an inspector upon receipt of a complete application, certifying that the individual is qualified to inspect elevators.

3.5. “Certificate of operation” means the document issued by the Commissioner to an owner or operator upon receipt of an inspection report completed by an inspector, certifying that the elevator has been inspected according to the applicable ASME Code and is safe for operation.

3.6. “Commissioner” means the Commissioner of the West Virginia Division of Labor and his or her authorized representatives.

3.7. “Complete application” means an application that includes all the information required by the Commissioner on the form supplied by the Division.

3.8. “Compliant” means meeting all applicable ASME standards.

3.9. “Imminent danger” or “unsafe condition” refers to an elevator’s condition that presents a risk of immediate or excessive danger, serious injury or death to passengers or elevator maintenance personnel.

3.10. “Inspector” means either a Division inspector or a private inspector as defined in W. Va. Code

§21-3C-1 (7 and 17) who has been issued a certificate of competency by the Commissioner.

3.11. “Modernized” means any change to an elevator’s equipment, including its parts, components or subsystems, but excluding routine maintenance, repair or replacement.

3.12. “Normal business hours” means Monday through Friday between the hours of 8:00 am and 5:00 pm.

3.13. “To seal out of service” or “sealed out of service” means that an elevator has been made inoperable by removal of the disconnect and the placement of a seal securing the elevator’s electrical box.

W. Va. Code R. § 42-21-4 Adoption of Standards

The following American Society of Mechanical Engineers (ASME) standards are incorporated by reference:

4.1. ASME Code A17.1- 2013/CSA B44-13,“Safety Code for Elevators and Escalators;”

4.2. ASME Code A17.2-2014, “Guide for Inspection of Elevators, Escalators, and Moving Walks;” and

4.3. ASME Code A18.1 - 2014, “Safety Standard for Platform Lifts and Stairway Chairlifts.”

W. Va. Code R. § 42-21-5 Registration of Elevators

5.1. The owner or operator of a newly installed elevator shall register the device and provide all information as the Commissioner may require on a form supplied by the Division.

5.2. Once an owner or operator of an elevator has registered the device with the Division, it shall not be necessary to submit an annual registration.

W. Va. Code R. § 42-21-6 Certificate of Operation Required; Issuance of a Certificate of Operation; Certificate of Operation Fee

6.1. Unless exempt pursuant to the Act, an elevator may not be operated in this state without a valid certificate of operation.

6.2. Upon receipt of the documents comprising a certificate of acceptance, the Commissioner shall issue a certificate of operation for a newly installed or modernized elevator.

6.3. The Commissioner shall issue a certificate of operation upon receipt of a compliant inspection report for an existing elevator from an inspector.

6.4. The application fee for a certificate of operation shall be $90.00.

6.5. The preferred means of paying the application fee is by credit card.

6.6. A certificate of operation is valid for 12 months from the date of inspection.

6.7. The Division shall provide a renewal application to each owner or operator at least 30 days prior to the certificate of operation’s expiration date.

W. Va. Code R. § 42-21-7 Inspection Required; Safety Test Required; Conflict of Interest; Inspection Reports; Hearing on an Inspection Report’s Findings

7.1. As required by the Act and this rule, an inspector shall inspect an elevator for safety according to the appropriate ASME Code and shall certify that it is safe for operation prior to the Commissioner issuing a certificate of operation.

7.2. An elevator mechanic licensed pursuant to the Act shall perform a safety test on an elevator in accordance with the appropriate ASME Code requirements, and an inspector shall be physically present to witness the entire safety test.

7.3. A private inspector shall not inspect repairs or routine maintenance work performed by the private inspector, an employee of the private inspector, the private inspector’s employer or another employee of the private inspector’s employer.

7.4. The Commissioner and inspectors are authorized to enter into any establishment in which an elevator is located for the purpose of inspecting the elevator for safety.

7.5. The Commissioner is authorized to make announced or unannounced inspections during normal business hours or at any other reasonable time considered necessary by the Commissioner in the exercise of his or her duties.

7.6. An inspector shall complete an inspection report and provide all information as the Commissioner may require on a form approved by the Division, showing the true and exact condition of each elevator inspected.

7.6.a. The inspector shall leave a copy of a compliant inspection report with the elevator owner or his or her representative on the day of inspection and shall forward a copy of the inspection report to the Commissioner by mail or email within 7 days of completing the inspection.

7.6.b. If the inspector determines that the elevator is not compliant with the applicable ASME Codes and that changes or repairs to the elevator are required in order to make it safe to operate, the inspector shall identify the areas of non-compliance and the required changes or repairs in the inspection report and shall forward the report to the Commissioner by mail or email within 7 days of completing the inspection.

7.6.c. The Commissioner shall ensure that the elevator owner is provided with a copy of the non-compliant inspection report.

7.7. Unless an owner or operator requests a hearing on the report’s findings, he or she shall make the required changes or repairs within 30 days of notification of the non-compliant inspection report before the Commissioner may issue a certificate of operation.

7.8. If the owner or operator objects to the inspection report’s findings, he or she shall notify the Commissioner in writing to request a hearing within 20 days of receipt of the inspection report.

7.8.a. The Commissioner shall promptly notify the owner or operator in writing of the date, place, and time of the hearing.

7.8.b. After hearing the parties’ evidence, the Commissioner shall make findings based on reasonable grounds of safety concerning the recommended changes or repairs set forth in the inspection report, and shall enter an order that requires the owner or operator to make the recommended changes and repairs or approves the owner’s or operator’s modified repair plans and specifications.

7.8.c. An owner or operator who is adversely affected by the Commissioner’s findings and order shall be entitled to judicial review in accordance with W. Va. Code §29A-5-4.

W. Va. Code R. § 42-21-8 Fees for Inspections by a Division Inspector

8.1. The fee for an inspection of an elevator by a Division inspector shall be $100.00.

8.2. The Division’s fee for the inspection of more than one elevator in a building is $100.00 for the first elevator inspected and $25.00 for each additional elevator inspected.

8.3. If changes or repairs are required prior to the issuance of a certificate of operation, the Division shall not charge an inspection fee for the first follow-up inspection.

8.4. If subsequent follow-up inspections are required because of the owner’s or operator’s failure to make the required repairs or changes, the Division’s inspection fees shall be the same rates as set forth in subsections 8.1 and 8.2 of this rule for each subsequent follow-up inspection.

8.5. If an owner or operator fails to pay the required inspection fee, the Commissioner shall withhold the issuance of a certificate of operation until the fee is paid.

W. Va. Code R. § 42-21-9 Revocation of Certificate of Operation

The Commissioner shall revoke a certificate of operation for good cause, including but not limited to, the following reasons:

9.1. Any condition that presents an imminent danger;

9.2. The unauthorized removal of the seal that seals an elevator out of service;

9.3. The unauthorized removal of any barricade placed on or around an elevator that has been declared inoperable by the Division;

9.4. The submission of any intentionally misleading or falsified reports or information to the Division;

9.5. The elevator owner’s or operator’s failure or refusal to permit the Commissioner’s access to records that are required by the Act or this rule;

9.6. The elevator owner’s or operator’s failure to make reports or to provide information required by the Act or this rule;

9.7. The elevator owner’s or operator’s failure or refusal to permit entry or inspection as required by the Act or this rule; or

9.8. The elevator owner’s or operator’s failure to pay any fee required by the Act or this rule.

W. Va. Code R. § 42-21-10 Unsafe Condition or Imminent Danger; Written Notice; Sealing the Elevator Out of Service

10.1. The Commissioner or an inspector shall seal out of service any elevator that is found to be unsafe or poses a risk of imminent danger.

10.2. If during the course of an inspection, an inspector finds that a passenger elevator or any part of the elevator cannot be operated safely or poses a risk of imminent danger, the Commissioner or inspector shall immediately provide the elevator owner or operator with a written notice of the unsafe condition or imminent danger, including specification of the repairs or changes needed to correct the unsafe conditions or imminent danger, and shall seal the elevator out of service.

10.3. An inspector shall immediately notify the Commissioner of the location and condition of the sealed elevator.

10.4. Once sealed out of service, a passenger elevator shall not be operated except for the purpose of making the repairs required by the Commissioner.

10.5. A seal placed on an elevator’s electric box in accordance with the Act or this rule shall not be removed, obstructed or in any way altered without the Commissioner’s written consent.

10.6. When the required repairs have been made to an elevator that has been sealed out of service, an inspector shall perform a complete inspection and safety test before the elevator can be placed back into service.

W. Va. Code R. § 42-21-11 Certificate of Competency Application; Payment of Fees; Renewal

11.1. No person may serve as an inspector unless he or she holds a certificate of competency issued by the Division.

11.2. Any person desiring to obtain a certificate of competency from the Division shall submit a written application, and provide all information as the Commissioner may require on a form furnished by the Division, and shall pay a $10.00 fee. The applicant shall also submit the following with the application:

11.2.a. A letter from one or more previous employers concerning his or her character and relevant experience;

11.2.b. Proof that the applicant is at least 21 years of age; and

11.2.c. A copy of the applicant’s successful test scores on the examination required by the Division or a copy of the applicant’s Qualified Elevator Inspector (QEI) certificate issued by an organization accredited by the American Society of Mechanical Engineers to certify Qualified Elevator Inspectors.

11.3. The preferred means of paying the application fee is by credit card.

11.4. Upon receipt of a complete application, the Commissioner shall issue a certificate of competency to the inspector.

11.5. A certificate of competency shall expire annually on July 31.

11.6. The Division shall provide a renewal application to each inspector at least 30 days prior to the certificate of competency’s expiration date.

W. Va. Code R. § 42-21-12 Suspension or Revocation of Certificate of Competency

12.1. The Commissioner may suspend or revoke an inspector’s certificate of competency for good cause, including but not limited to, the following:

12.1.a. a finding that the inspector is unable to properly perform inspections as required by the Act and this rule;

12.1.b. a finding that the inspector is untrustworthy;

12.1.c. falsification of any information or statement in his or her application;

12.1.d. falsification of any information or statement contained in an inspection report; or

12.1.e. failure to comply with the Act or this rule.

12.2. If the Commissioner finds that suspension or revocation of a certificate of competency is warranted, he or she shall give written notice of the reasons to the inspector and shall afford the inspector an opportunity to respond.

W. Va. Code R. § 42-21-13 Work-Sharing Agreement Between the Division and Counties and Municipalities

13.1. The Division may enter into a work-sharing agreement with any county or municipality whereby the county or municipality would, under the supervision of the Division, assume the inspection and enforcement provisions of the Act.

13.2. A work-sharing agreement shall be executed on a form provided by the Division and approved by the Office of the Attorney General.

13.3. With the approval of the Division, counties and municipalities may combine their jurisdictions into a single work-sharing agreement.

13.4. A work-sharing agreement shall include the following provisions:

13.4.a. that all elevators covered under the provisions of W. Va. Code §21-3C-1 et seq. within the county or municipality are inspected annually for safety;

13.4.b. that no elevator covered by the Act shall be permitted to operate without having first obtained a certificate of operation from the Division;

13.4.c. that any inspector employed by the county or municipality is certified for competency by the Division as required by the provisions of W. Va. Code §21-3C-1 et seq. or this rule;

13.4.d. that all inspections for safety are conducted in accordance with the Act or this rule;

13.4.e. that reports on inspection are filed with the Division within 5 days of the date of inspection;

13.4.f. that the county or municipality shall comply with any written orders issued by the Division;

13.4.g. that the Division shall provide technical assistance to the county or municipal inspectors where necessary to insure adequate enforcement of the Act;

13.4.h. that the Division shall provide the report and inspection forms required by the Division;

13.4.i. that the Division shall permit the county or municipality to collect and retain fees for inspections as a means to support the enforcement effort at the local level; and

13.4.j. that the Division shall provide direct supervision, where considered necessary by the Division, to county or municipal inspectors.

Series 21A Licensing of Elevator Mechanics and Technicians and Registration of Apprentices

W. Va. Code R. § 42-21A-1 General

1.1. Scope. -- This legislative rule governs the requirements and procedures for licensing elevator mechanics, accessibility technicians, limited technicians, and registration of elevator mechanic apprentices; fees; and penalties for violations in accordance with the Elevator Safety Act, W. Va. Code §21-3C-1 et seq.

1.2. Authority. -- W. Va. Code §21-3C-11 and §21-17-12.

1.3. Filing Date. -- March 29, 2024.

1.4. Effective Date. -- May 1, 2024.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2029.

W. Va. Code R. § 42-21A-2 Application and Enforcement

2.1. Application. This legislative rule applies to all persons working as elevator mechanics, accessibility technicians, limited technicians, or elevator mechanic apprentices governed or otherwise within the jurisdiction of the Elevator Safety Act, W. Va. Code §21-3C-1 et seq.

2.2. Enforcement. The enforcement of this legislative rule is vested with the Division of Labor.

W. Va. Code R. § 42-21A-3 Definitions

3.1. “Accessibility technician” means a person who meets the requirements set forth in W. Va. Code §21-3C-10a(d) and this rule.

3.2. “Act” means the Elevator Safety Act, W. Va. Code §21-3C-1 et seq.

3.3. “ASME” refers to the American Society of Mechanical Engineers, Two Park Avenue, New York, New York 10016-5990.

3.4. “Cease and desist order” means an order issued by the Division of Labor pursuant to the Act and this rule to an unlicensed person who performs work for which a license is required or to a licensee who performs work outside of the license’s classification.

3.5. “Commissioner” means the Commissioner of the West Virginia Division of Labor and his or her authorized representatives.

3.6. “Division” means the West Virginia Division of Labor and its authorized representatives.

3.7. “Elevator apprentice” or “elevator mechanic apprentice” means a person who meets the requirements set forth in W. Va. Code §21-3C-10a(f) and this rule.

3.8. “Emergency,” as used in W. Va. Code §21-3C-11(a)(5) and section 10 of this rule, means a disaster, act of God, or work stoppage, when so declared by the President of the United States or Governor of West Virginia.

3.9. “License classification” or “classification” means the scope of work of an elevator mechanic, accessibility technician, or limited technician as set forth in the Act and this rule.

3.10. “Limited technician” means a person who meets the requirements set forth in W. Va. Code §21-3C-10a(e) and this rule and is employed by a historic resort hotel.

3.11. “Limited use/limited application elevator endorsement” or “LULA elevator endorsement” means an endorsement to an accessibility technician license issued to a person who meets the requirements set forth in W. Va. Code §21-3C-10a(d)(3) and this rule.

3.12. “Other authorization to practice,” as used in section 16 of this rule, means a nontransferable acknowledgement, other than a license, by another state government that is provided to an individual asserting that the individual has met the educational and examination requirements to engage in the performance of erecting, constructing, installing, altering, servicing, repairing, or maintaining elevators, related conveyances, or accessibility equipment.

W. Va. Code R. § 42-21A-4 Adoption of Standards

The following ASME standards are incorporated by reference:

4.1. ASME Code A17.1- 2013/CSA B44-13, “Safety Code for Elevators and Escalators;”

4.2. ASME Code 17.2-2014, “Guide for Inspection of Elevators, Escalators, and Moving Walks;” and

4.3. ASME Code A18.1 - 2014, “Safety Standard for Platform Lifts and Stairway Chairlifts.”

W. Va. Code R. § 42-21A-5 Licensure or Registration Required; Requirement to Work Under a Contractor’s License

5.1. Except as otherwise provided in the Act, no person may engage or offer to engage in the performance of erecting, constructing, installing, altering, servicing, repairing, or maintaining elevators, related conveyances, or accessibility equipment without a license.

5.2. A license issued pursuant to the Act and this rule is not transferable.

5.3. Except as otherwise provided in the Act, no person may work as an elevator mechanic apprentice unless he or she meets the requirements set forth in W. Va. Code §21-3C-10a(f) and is registered with the Commissioner in accordance with section 9 of this rule.

5.4. Any person licensed or registered pursuant to the Act and this rule shall carry proof of a valid license at all times when performing elevator work.

5.5. Except as otherwise provided in the Act, a person licensed or registered pursuant to the Act and this rule must be, or be employed by, a contractor licensed pursuant to the West Virginia Contractor Licensing Act, W. Va. Code §30-42-1 et seq.

W. Va. Code R. § 42-21A-6 Licensure of Elevator Mechanics

6.1. Any person desiring to be licensed as an elevator mechanic shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 12 of this rule.

6.2. All applicants for an elevator mechanic license shall meet the requirements as set forth in W. Va. Code §21-3C-10a(c).

6.3. An elevator mechanic’s license is valid for up to two years from the date on which it was issued unless sooner suspended or revoked by the Commissioner.

6.4. An elevator mechanic’s license expires on the last day of the anniversary month from the month of initial licensure.

6.5. An elevator mechanic licensee may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 12 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a $50 reinstatement fee in addition to the biennial renewal fee: Provided, That a license that has been expired for 90 days or more cannot be renewed/reinstated.

W. Va. Code R. § 42-21A-6A Continuing Education Requirements for Elevator Mechanics; Proof of Completion. 6A.1. 16 hours of continuing education shall be required for elevator mechanic licensure renewal. 6A.2. Each elevator mechanic licensee shall submit proof of completion to the Commissioner prior to a license being renewed. The proof of completion shall have been acquired within the two-year period immediately preceding renewal. 6A.3. Each elevator mechanic licensee shall pay a fee directly to the entity providing the continuing education instruction. 6A.4. If an elevator mechanic licensee is unable to complete the required continuing education instruction prior to the license’s expiration due to a temporary disability, military service, or other good cause shown, the licensee may submit a written request for a waiver to the Commissioner. The Commissioner may approve or deny the waiver request

W. Va. Code R. § 42-21A-7 Licensure of Accessibility Technicians; LULA Elevator Endorsement

7.1. Any person desiring to be licensed as an accessibility technician shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 12 of this rule.

7.2. All applicants for an accessibility technician license shall meet the requirements as set forth in W. Va. Code §21-3C-10a(d).

7.3. Any accessibility technician licensee desiring a LULA elevator endorsement shall meet the requirements as set forth in W. Va. Code §21-3C-10a(d)(3).

7.4. An accessibility technician’s license or an accessibility technician license with a LULA elevator endorsement is valid for up to two years from the date on which it was issued unless sooner suspended or revoked by the Commissioner.

7.5. An accessibility technician’s license or an accessibility technician license with a LULA elevator endorsement expires on the last day of the anniversary month from the month of initial licensure.

7.6. An accessibility technician licensee or an accessibility technician licensee with a LULA elevator endorsement may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 12 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a $50 reinstatement fee in addition to the biennial renewal fee: Provided, That a license that has been expired for 90 days or more cannot be renewed/reinstated.

W. Va. Code R. § 42-21A-8 Licensure of Limited Technicians

8.1. Any person desiring to be licensed as a limited technician shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 12 of this rule.

8.2. All applicants for a limited technician license shall meet the requirements as set forth in W. Va. Code §21-3C-10a(e).

8.3. A limited technician’s license is valid for up to two years from the date on which it was issued unless sooner suspended or revoked by the Commissioner.

8.4. A limited technician’s license expires on the last day of the anniversary month from the month of initial licensure.

8.5. A limited technician licensee may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 12 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a $50 reinstatement fee in addition to the biennial renewal fee: Provided, That a license that has been expired for 90 days or more cannot be renewed/reinstated.

W. Va. Code R. § 42-21A-8A Work Not Permitted Under a Limited Technician License

A limited technician may not replace any of the following: 8A.1. Governors; 8A.2. Sheave wheels or bearings; 8A.3. Cables and shackles; 8A.4. Ring gears and worn gears; 8A.5. Buffers; 8A.6. Traveling cables; 8A.7. Hydro pumps; 8A.8. Hydro pump motors; 8A.9. Hydro valve chests; 8A.10. Jack packing and seals; and 8A.11. Rope grippers.

W. Va. Code R. § 42-21A-9 Registration of Elevator Apprentices

9.1. Any person desiring to be registered as an elevator apprentice shall submit a completed application/affidavit requesting registration to the Commissioner on forms supplied by the Division.

9.2. Pursuant to W. Va. Code §21-3C-10a(f), all elevator apprentices are required to be currently enrolled in an elevator apprentice program and in good standing.

9.3. An elevator apprentice’s certificate of registration is valid for up to two years unless sooner suspended or revoked by the Commissioner.

W. Va. Code R. § 42-21A-10 Emergency Requests for Elevator Mechanic or Accessibility Technician License

10.1. If the number of persons holding current elevator mechanic or accessibility technician licenses is insufficient to respond to a declared state of emergency, a licensed elevator contractor may request that the Commissioner issue an emergency elevator mechanic or accessibility technician license to a person certified by the contractor to have an acceptable combination of documented experience and education to perform elevator work without direct supervision.

10.1.1. A licensed elevator contractor shall submit a notarized affidavit to the Commissioner certifying that the emergency license applicant has an acceptable combination of documented experience and education for the applicable license classification.

10.1.2. An applicant shall apply for the applicable emergency license classification within five business days after commencing work requiring a license.

10.1.3. An emergency license issued in accordance with the provisions of this section shall identify the specific elevators, accessibility equipment, or geographical areas where the emergency licensee is authorized to work.

10.2. An emergency license issued in accordance with the provisions of this section is valid for a period of no more than 30 days from the date of issuance.

W. Va. Code R. § 42-21A-11 Requests for Temporary Elevator Mechanic License

11.1. If there are no licensed elevator mechanics available, a licensed elevator contractor may request that the Commissioner issue a temporary elevator mechanic license to a person certified by the contractor to have an acceptable combination of documented experience and education to perform elevator work without direct supervision.

11.1.1. A licensed elevator contractor shall submit a notarized affidavit to the Commissioner certifying that the temporary elevator mechanic license applicant has an acceptable combination of documented experience and education.

11.1.2. The applicant shall apply for a temporary elevator mechanic license prior to commencing elevator work.

11.1.3. A temporary license issued in accordance with the provisions of this section shall identify the specific elevators or geographical areas where the licensee is authorized to work.

11.2. A temporary license issued in accordance with the provisions of this section is valid for a period of no more than 30 days from the date of issuance.

W. Va. Code R. § 42-21A-12 Licensure Fees

12.1. An initial or renewal applicant for an elevator mechanic license, accessibility technician license, or limited technician license shall pay a $180 biennial license fee: Provided, That no license fee shall be charged if the applicant is a licensed contractor pursuant to W. Va. Code §30-42-1 et seq. and has paid a contractor license fee.

12.1.1. If a renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a $50 reinstatement fee in addition to the $180 biennial renewal fee.

12.1.2. A license that has been expired for 90 days or more cannot be renewed/reinstated.

12.2. An applicant for a temporary elevator mechanic license shall pay a $90 license fee.

12.3. There is no license fee charged for the issuance of an emergency elevator mechanic or emergency accessibility technician license.

12.4. There is no fee charged for an elevator mechanic apprentice registration.

W. Va. Code R. § 42-21A-13 Denial, Suspension, Revocation, or Reinstatement of Licenses or Certificates of Registration; Investigations; Grounds for Disciplinary Action

13.1. The Commissioner may deny, suspend, revoke, or reinstate a license or certificate of registration in accordance with the provisions of the Act and this rule. A violation of the Act or this rule is grounds for the denial, suspension, revocation, or refusal to reinstate a license or certificate of registration and permits the imposition of disciplinary action.

13.2. Upon receipt of a complaint or upon his or her own inquiry, the Commissioner shall conduct an investigation to determine whether there are grounds for disciplinary action against a licensee or registrant. All complaints shall be in writing and include the name, address, and phone number of the complainant. The Commissioner shall provide a copy of the complaint to the licensee or registrant.

13.3. Disciplinary action may not be imposed without providing the licensee or registrant with notice and opportunity for a hearing in accordance with the provisions of W. Va. Code §29A-5-1 et seq.

13.3.1. The Commissioner may conduct the hearing or appoint a hearing examiner.

13.3.2. A licensee or registrant has a right to attend the hearing in person, to be represented by an attorney licensed to practice in this state, or to submit a written response to the Commissioner, and may offer testimony and submit relevant factual information: Provided, That if the licensee or registrant receives proper notice of the hearing, the licensee’s or registrant’s failure to attend the hearing does not preclude the imposition of disciplinary action.

13.3.3. If a hearing examiner is appointed, the hearing examiner shall submit a recommended decision to the Commissioner within 10 days of the hearing’s conclusion. The hearing examiner may recommend the imposition of any appropriate disciplinary action permitted by the Act or this rule. The Commissioner shall accept, reject, or modify the hearing examiner’s recommended decision and issue a final order within 10 days of receipt of the recommended decision.

13.3.4. If the Commissioner conducts the hearing, he or she shall issue a final order within 10 days of the hearing’s conclusion. If the Commissioner concludes that a violation of the Act or this rule occurred, he or she may impose any appropriate disciplinary action permitted by the Act or this rule.

W. Va. Code R. § 42-21A-14 Cease and Desist Orders; Penalties

14.1. Upon a determination that a person is engaged in elevator work in this state without a valid license, the Division shall issue a cease and desist order requiring that person to immediately cease all operations in this state. The person can immediately engage in elevator work upon issuance of a license.

14.2. Any person continuing to engage in elevator work after the issuance of a cease and desist order is subject to a penalty of not less than $200 nor more than $1,000 as set forth in W. Va. Code §21-3C-12(b).

W. Va. Code R. § 42-21A-15 Appeals

Any person adversely affected by a final order of the Commissioner may appeal the order to the Intermediate Court of Appeals as provided in W. Va. Code §51-11-1 et seq. and §29A-5-4.

W. Va. Code R. § 42-21A-16 Reciprocity; Work Experience

16.1. To the extent that other states license or issue other authorization to practice for elevator mechanics, accessibility technicians, limited technicians, or elevator mechanic apprentices, and have requirements equivalent to the Act and this rule, the Commissioner, in his or her discretion, may grant licenses of the same classification without examination to elevator mechanics, accessibility technicians, limited technicians, or elevator mechanic apprentices licensed or authorized by other states, as follows:

16.1.1. The applicant has provided satisfactory proof of his or her qualifications, including the applicant’s compliance with all requirements of W. Va. Code §21-17-3(a); and

16.1.2. The applicant has paid the applicable license fee as prescribed in section 12 of this rule.

16.2. To the extent that an applicant is seeking licensure based on work experience, the Commissioner, in his or her discretion, may grant a license with the applicable classification without examination as follows:

16.2.1. The applicant’s work experience is in a state that does not license or issue other authorization to practice for the performance of elevator work;

16.2.2. The applicant has provided satisfactory proof of his or her qualifications, including the applicant’s compliance with all requirements of W. Va. Code §21-17-4; and

16.2.3. The applicant has paid the applicable license fee as prescribed in section 12 of this rule.

Series 22 Regulation Of Trade, Weights, And Measures

W. Va. Code R. § 42-22-1 General

1.1. Scope. -- This rule governs the enforcement of W. Va. Code §47-1-1, et seq, Regulation of Trade, Weights and Measures as it relates only to the definition of terms, Uniform Regulation for National Type Evaluation, uniform regulation of the voluntary registration of servicepersons and service agencies for commercial weighing and measuring devices, and uniform regulation for motor fuel.

1.2. Authority. -- W. Va. Code §47-1-3(c).

1.3. Filing Date. -- April 4, 2003.

1.4. Effective Date. -- April 5, 2003.

W. Va. Code R. § 42-22-2 Application and Enforcement

2.1. Application. This legislative rule applies to the West Virginia Division of Labor and all persons, materials and transactions governed by or otherwise within the jurisdiction of the Division.

2.2. Enforcement. The enforcement of this legislative rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-22-3 Definition

3.1. The term “commissioner” means the commissioner of the West Virginia Division of Labor.

3.2. The term "remanufactured devices" means the overhaul, or replacement of parts to a weighing or measuring device which enable a device to be sold to a new owner, in a new location.

W. Va. Code R. § 42-22-4 Uniform Regulation For National Type Evaluation

4.1. All new weighing and measuring devices placed into commercial service in West Virginia after March 31, 1994, shall have a National Type Evaluation Program (NTEP) Certificate of Conformance as required by the National Institute of Standards and Technology (NIST) Handbook 130.

4.2. All weighing and measuring devices, in commercial use in West Virginia prior to March 31, 1994, are not required to have an NTEP Certificate of Conformance, provided:

(a) The device meets or exceeds all applicable requirements of NIST Handbook 44;

(b) The device is suitable for its intended use;

(c) The device is registered with the Weights and Measures Section of the West Virginia Division of Labor under the provisions of W. Va. Code §47-1-21; and (d) The device remains the property of the original registered owner or in the original registered location.

4.3. Effective January 1, 1996, "remanufactured devices" are required to have an NTEP Certificate of Conformance. Remanufactured devices with an original manufacture date prior to March 31, 1994, may be sold for commercial use until January 1, 1996, provided:

(a) The device meets or exceeds all applicable requirements of NIST Handbook 44;

(b) The device is suitable for its intended use; and (c) Sellers of the devices make a statement on the bill of sale to the buyer that the device is capable of being approved by the Weights and Measures Section of the West Virginia Division of Labor if properly installed.

4.4. Where replacement components are used to repair or modify a commercial weighing or measuring device, which affect the metrological integrity of the device, the components used must have an NTEP Certificate of Conformance, provided that the repair of the device does not require the original manufacturers parts, where NTEP approval is either not required of not applicable.

4.5. The original Certificate is invalid, and the device must be resubmitted for a new NTEP Certificate of Conformance when repair or modification of devices with an NTEP Certificate of Conformance alters the device to deviate from the original Certificate of Conformance.

W. Va. Code R. § 42-22-5 Uniform Regulation of the Voluntary Registration of Servicepersons and Service Agencies for Commercial Weighing and Measuring Devices

5.1. The Commissioner shall establish minimum qualifications with regards to, but not limited to, training and experience for service agencies and service persons, and establish testing relative to W. Va. Code §47-1-1, et seq, REGULATION OF TRADE, WEIGHTS AND MEASURES, and REGULATION OF TRADE, WEIGHTS AND MEASURES 42 CSR 22. Further, the Commissioner may require remedial or continuing education as considered necessary to maintain minimum levels of competency.

W. Va. Code R. § 42-22-6 Uniform Regulation For Motor Fuel

6.1. The National Conference on Weights and Measures (NCWM) handbook 130, as published by the National Institute of Standards and Technology (NIST), has been adopted by W.Va. Code §47-1-11 as the applicable standards for the regulation of motor fuels and heating and fuel oils, with the following exception: Within handbook 130, Uniform Engine Fuels, Petroleum Products, and Automotive Lubricants regulations, sub-section one of section seven adopts five test methods to be used to determine compliance with the applicable premium diesel parameters: (a) energy content, (b) Cetane number, (c) low temperature operability, d) thermal stability, and (e) fuel injector cleanliness. he division of labor does not adopt (e), “fuel injector cleanliness” as an acceptable testing method. election and proven analysis as per the stated test methods of two (2) of the four (4) remaining properties shall constitute premium diesel fuel for the state.

6.2. Test results which are in error exceeding the reproducibility limits for that value in the applicable ASTM publication, shall be considered to be in violation of W. Va. Code §47-1-11, Requirements For Motor Fuel.

42CSR22

42CSR22

Series 24 Crane Operator Certification Act

W. Va. Code R. § 42-24-1 General

1.1. Scope. -- This rule governs certification, fees, examinations, training, powers and duties of the Commissioner in accordance with W. Va. Code §§21-3D-1, et seq., and 29A-3-1, et seq.

1.2. Authority. -- W. Va. Code §21-3D-3.

1.3. Filing Date. -- June 3, 2013.

1.4. Effective Date. -- July 1, 2013.

W. Va. Code R. § 42-24-2 Application and Enforcement

2.1. Application. This rule applies to the West Virginia Division of Labor and all persons, materials and transactions governed or otherwise defined under coverage of the Crane Operator Certification Act, W. Va. Code §21-3D-1, et seq.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-24-3 Definitions

3.1. “ANSI” refers to the American National Standards Institute, 1899 L Street NW, 11 th Floor, Washington, D.C. 20036.

3.2. “Approved training course” means a training course which has been reviewed and certified by the Commissioner as complying with the requirements of section 8 of this rule.

3.3. “ASME” refers to the American Society of Mechanical Engineers, Three Park Avenue, New York, New York 10016-5990.

3.4. “Class A certification” means a certification issued to a person who has met all national level certification criteria as required by W. Va. Code §21-3D-3(a)(1)(A) and W. Va. Code §21-3D-4(c)(1) and as required by a program that has been accredited by ANSI’s Personnel Certification Accreditation Program for the class or type of crane specified in subdivision 7.2.c. of this rule.

Beginning November 14, 2014, “Class A certification” also means and includes all crane operators in West Virginia subject to the provisions of OSHA 29 C.F.R. §1926.1400, Subpart CC, “Cranes and Derricks in Construction.”

3.5. “Class B certification” means a certification issued to a person who has met all state level certification criteria as required by the Commissioner for the class or type of crane specified in subdivision 7.2.c. of this rule.

Beginning November 14, 2014, “Class B certification” also means and includes all crane operators in West Virginia who are not subject to the provisions of OSHA 29 C.F.R. §1926.1400, Subpart CC, “Cranes and Derricks in Construction.”

3.6. “Code of Federal Regulations” or “C.F.R.” refers to rules published in the Federal Register by executive departments and agencies of the federal government of the United States.

3.7. “Direct supervision by a certified crane operator” pursuant to the exemption in W. Va. Code §21- 3D-2 (b) (5) means that a certified crane operator is within immediate physical proximity of the controls of the crane.

3.8. “Division” means the West Virginia Division of Labor.

3.9. “Employee” pursuant to the exemption in W. Va. Code §21-3D-2 (b) (6) means an employee who is limited to operating the crane only on the property owned or leased by his or her employer ( i.e., the manufacturing plant, industrial establishment or mineral processing operation).

3.10. “NCCCO” refers to the National Commission for the Certification of Crane Operators, located at 2750 Prosperity Avenue, Suite 505, Fairfax, VA 22031.

3.11. “Public Service Commission” pursuant to the exemption in W. Va. Code §21-3D-2 (b) (7) means the West Virginia Public Service Commission.

3.12. “Recertification” means the renewal process that occurs on each fifth anniversary date of an applicant’s original certification date.

W. Va. Code R. § 42-24-4 Adoption of Standards

4.1. The following standard is adopted and incorporated by reference: ASME B30.3 - 2009, Tower Cranes, §3-3.1.2, “Qualifications for Operators.”

4.2. The following standard is adopted and incorporated by reference: ASME B30.5 - 2011, Mobile and Locomotive Cranes, §5-3.1.2, “Qualifications for Operators.”

W. Va. Code R. § 42-24-5 Minimum Qualifications for Initial Certification, Renewal Certification, and Recertification

5.1. Initial class A certification requirements. The Commissioner shall certify an applicant for an initial class A certification who:

5.1.a. Is at least 18 years of age;

5.1.b. Submits an application on forms provided by the Commissioner;

5.1.c. Submits a copy of his or her written examination scores of at least 70% as provided to the applicant by the NCCCO;

5.1.d. Submits a copy of his or her practical examination scores of at least 75% as provided to the applicant by an examiner approved by the Commissioner pursuant to section 5 of the Division of Labor’s

rule titled “Crane Operator Certification Act - Practical Examination,” 42 CSR 25;

5.1.e. 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 CFR §391.41 dated within 1 year of the date of application for certification, or an equivalent physician’s certificate as approved by the Commissioner ; and

5.1.f. Pays the application fee of $75.00.

5.2. Initial class B certification requirements. The Commissioner shall certify an applicant for an initial class B certification who:

5.2.a. Is at least 18 years of age;

5.2.b. Submits an application on forms provided by the Commissioner;

5.2.c. Submits a copy of his or her written examination scores of at least 60% as provided to the applicant by the NCCCO;

5.2.d. Submits a copy of his or her practical examination scores of at least 75% as provided to the applicant by an examiner approved by the Commissioner pursuant to section 5 of the Division of Labor’s

rule titled “Crane Operator Certification Act - Practical Examination,” 42 CSR 25;

5.2.e. 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 CFR §391.41 dated within one year of the date of application for certification, or an equivalent physician’s certificate as approved by the Commissioner; and

5.2.f. Pays the application fee of $75.00 and all examination fees.

5.3. Certification under this rule is valid throughout the state, is not assignable or transferable, and is valid for one year from the date on which it was issued.

5.4. Annual renewal of class A and B certification. Upon receipt of an annual renewal application on a form provided by the Commissioner and payment of an annual renewal fee of $75.00, the Commissioner shall renew the class A or class B certification.

5.5. Recertification. On each fifth anniversary of an applicant’s initial certification date, an applicant shall meet the following recertification requirements prior to the renewal of his or her certification:

5.5.a. To recertify a class A certification, the applicant shall submit a copy of his or her current written examination scores of at least 70% as provided by the NCCCO and a current physician’s certificate as required by subdivision 5.1.e. of this rule.

5.5.b. To recertify a class B certification, the applicant shall submit a copy of his or her current written examination scores of at least 60% as provided by the NCCCO or successfully complete a training course approved by the Commissioner pursuant to section 8 of this rule and provide a current physician’s certificate as required by subdivision 5.2.e. of this rule.

W. Va. Code R. § 42-24-6 Late Fees, Lapse, and Duplicate Certification

6.1. If a renewal application is received or postmarked more than 15 days after the certification’s expiration date, the applicant shall pay, in addition to the annual renewal fee, a late fee of $25.00.

6.2. The Commissioner may issue a duplicate certification to a person who, by application and affidavit, states that the original certification has been permanently lost or destroyed and that the applicant is in full compliance with the requirements of W. Va. Code §21-3D-1, et seq., and this rule. The Division shall charge a fee of $10.00 for each duplicate certification issued.

W. Va. Code R. § 42-24-7 Examinations Required

7.1. Any person desiring an initial class A or B crane certification under the provisions of W. Va.

Code §21-3D-1, et seq., or this rule shall submit an application for examination to the Commissioner on forms provided by the Commissioner. The examination process consists of a written examination and a practical examination.

7.2. Written examination.

7.2.a. A person desiring an initial class A or B crane certification under the provisions of W. Va.

Code §21-3D-1, et seq., or this rule shall pass a written examination. The contents of the examination shall be based on the following standards adopted by ASME: ASME B30.3-2009, ASME B30.5-2011 and ASME B30.23-2011.

7.2.b. An applicant must obtain a passing score on a core examination that tests the applicant’s general knowledge of crane safety and the applicable code standards.

7.2.c. In addition to the core examination, the applicant must obtain a passing score on a specialty examination for each class of crane for which certification is desired. The classifications of crane certifications are as follows:

7.2.c.1. Fixed cab telescoping boom crane;

7.2.c.2. Lattice boom crawler crane;

7.2.c.3. Lattice boom truck crane;

7.2.c.4. Swing cab telescoping boom crane; and

7.2.c.5. Tower crane.

7.2.d. The Commissioner shall provide for the written examination of all applicants. The Commissioner may:

7.2.d.1. Contract with a private testing agent to conduct the written examinations. The private testing agent shall charge examination fees according to a rate schedule developed by the Commissioner and the applicant shall pay all examination fees directly to the testing agent; or

7.2.d.2. Develop a written examination process within the Division to include a fees schedule not to exceed the actual cost of administering the examinations. The certification applicant shall pay all fees directly to the Division in advance of the examination.

7.2.e. The minimum passing score for a class A certification is a score of 70% for each examination.

7.2.f. The minimum passing score for a class B certification is a score of 60% for each examination.

7.2.g. An applicant who fails the examination may request an analysis of his or her performance on the failed examination. The Division or private testing agent shall provide the applicant with the analysis.

7.2.h. An applicant who fails the examination may retake the examination upon the submission of a new application and the payment of the fees required.

7.3. Practical examination.

A person desiring an initial class A or B crane certification under the provisions of W. Va. Code §21- 3D-1, et seq., or this rule shall pass a practical examination as provided for section 4 of the Division of Labor’s rule titled “Crane Operator Certification Act - Practical Examination,” 42 CSR 25.

W. Va. Code R. § 42-24-8 Training

8.1. The Commissioner may approve crane operator training courses from private sector sources to qualify applicants for class B recertifications. To apply for approval from the Commissioner, the training provider shall submit a request for approval to include a detailed instructional curriculum, copies of all manuals and study guides, a procedure for measuring the knowledge gained by students, a list of instructors and their credentials, and a proposed fees schedule.

8.2. An approved training course for class B recertification shall consist of at least 24 hours of instructional time.

8.3. An approved training course shall contain, at the minimum, instruction relative to the following subject matter:

8.3.a. General crane knowledge to include types of cranes and their components, definition of terms and nomenclature;

8.3.b. Familiarity with ASME B30.3-2009, ASME B30.5-2011 and ASME B30.23-2011 standards, 29 C.F.R. §1926.1400, Subpart CC, “Cranes and Derricks in Construction” and the manufacturer’s operating manuals;

8.3.c. Responsibilities of the site supervisor, the crane operator and the crane owner;

8.3.d. Safety inspection procedures, accident prevention and maintenance;

8.3.e. Procedures for assembling and dismantling cranes and their transportation;

8.3.f. Crane set-up to include site preparation, counterweights, outriggers, rigging methods and materials;

8.3.g. General operation to include safe operating procedures, signaling, principles of leverage and power transmission, the purpose and use of load charts and boom angles, picking loads and adjacent hazards; and

8.3.h. The effect of overloading, instability and structural or functional failures.

8.4. The training provider shall develop a methodology to measure the level of knowledge gained by the student. This methodology shall provide the means to determine if the student has successfully completed the training course. Upon the successful completion of a training course, the provider shall provide to the student a completion certificate which shall contain the following information:

8.4.a. The name and address of the training provider;

8.4.b. The student’s name and social security number;

8.4.c. The dates and location of the training;

8.4.d. The length of the training in hours;

8.4.e. The title and level of the training course; and

8.4.f. The name and signature of the instructor.

8.5. The training provider shall annually submit a list of all scheduled training sessions and locations to the Commissioner on or before the first day of January. The training provider shall notify the Commissioner of any modifications to the annual schedule within 2 weeks of the date that the modifications are scheduled.

8.6. The Commissioner shall compile and maintain a public listing of all approved training courses.

The list shall be compiled annually and shall contain the following: 8.6.a.. The name and address of the training provider;

8.6.b. The dates and locations of scheduled training courses;

8.6.c. A schedule of fees; and

8.6.d. The type of training available.

8.7. The Commissioner shall provide for random site audits of an approved training course to insure that the training provided adheres to the specified curriculum and that operators are being adequately trained to safely operate a crane.

Series 25 Crane Operator Certification Act - Practical Examination

W. Va. Code R. § 42-25-1 General

1.1. Scope. -- This rule governs the practical examination of crane operators in accordance with W.

Va. Code §§21-3D-1, et seq., and 29A-3-1, et seq.

1.2. Authority. -- W. Va. Code §21-3D-3(1).

1.3. Filing Date. -- June 3, 2013.

1.4. Effective Date. -- July 1, 2013.

W. Va. Code R. § 42-25-2 Application and Enforcement

2.1. Application. This rule applies to the West Virginia Division of Labor and all persons, materials and transactions governed or otherwise defined under coverage of the Crane Operator Certification Act, W.Va. Code §21-3D-1, et seq., as it relates to the practical examination of crane operators.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-25-3 Definitions

3.1. “ANSI” refers to the American National Standards Institute, 1899 L Street NW, 11 th Floor, Washington, D.C. 20036.

3.2. “Approved training course” means a training course which has been reviewed and certified by the Commissioner as complying with the requirements of sections 4 and 5 of this rule.

3.3. “ASME” refers to the American Society of Mechanical Engineers, Three Park Avenue, New York, New York 10016-5990.

3.4. “Class A certification” means a certification issued to a person who has met all national level certification criteria as required by W. Va. Code §§21-3D-3(a)(1)(A) and -4(c)(1) and as required by a program that has been accredited by ANSI’s Personnel Certification Accreditation Program for the class or type of crane specified in subdivision 7.2.c. of the Division of Labor’s rule, “Crane Operator Certification Act,” 42 CSR 24.

Beginning November 14, 2014, “Class A certification” also means and includes all crane operators in West Virginia subject to the provisions of 29 C.F.R. §1926.1400, Subpart CC, “Cranes and Derricks in Construction.”

3.5. “Class B certification” means a certification issued to a person who has met all state level certification criteria as required by the Commissioner for the class or type of crane specified in subdivision 7.2.c. of the Division of Labor’s rule, “Crane Operator Certification Act,” 42 CSR 24.

42CSR25

Beginning November 14, 2014, “Class B certification” also means and includes all crane operators in West Virginia who are not subject to the provisions of 29 C.F.R. §1926.1400, Subpart CC, “Cranes and Derricks in Construction.”

3.6. “Code of Federal Regulations” or “C.F.R.” refers to rules published in the Federal Register by executive departments and agencies of the federal government of the United States.

3.7. “Division” means the West Virginia Division of Labor.

3.8. “NCCCO” refers to the National Commission for the Certification of Crane Operators, located at 2750 Prosperity Avenue, Suite 505, Fairfax, VA 22031.

W. Va. Code R. § 42-25-4 Practical Examination

4.1. An applicant for an initial class A or B certification shall submit a written certificate of completion from a practical examination examiner approved by the Commissioner pursuant to section 5 of this rule.

4.2. The practical examination as required by the NCCCO is hereby incorporated by reference as the state practical examination required for an initial class A or B certification. The Commissioner may authorize the use of an equivalent practical examination when the equivalent examination meets or exceeds the requirements of the NCCCO examination.

4.3. The Commissioner shall arrange for administering the practical examination through approved examiners. The practical examination shall be given in the 4 crane categories:

4.3.a. Fixed cab telescoping boom crane;

4.3.b. Lattice boom crawler or truck crane;

4.3.c. Swing cab telescoping boom crane; and

4.3.d. Tower crane.

4.4. The practical examination shall consist of four primary exercises or tasks and shall evaluate the applicant’s skills in hoisting, booming, swinging, following hand signals, and combination or multifunction operations. The practical examination exercises shall be performed with a load and without a load. The exercises or tasks shall consist of the following:

4.4.a. Task 1 - The rotation and placement of the overhaul ball in a designated stop circle;

4.4.b. Task 2 – The following of hand signals;

4.4.c. Task 3 – The rotation and placement of the overhaul ball in a fixed enclosure (barrel); and

4.4.d. Task 4 – The negotiation of a zigzag corridor with a test weight.

W. Va. Code R. § 42-25-5 Examiners

5.1. The Commissioner may approve and designate examiners to administer the practical examination required for class A and B certification. A person desiring to become an approved examiner shall make application to the Commissioner on a form provided by the Commissioner. The applicant shall hold a full and current accreditation as a practical examiner from an ANSI-accredited Personnel 42CSR25 Certification Accreditation Program, the NCCCO, or an equivalent organization or program as approved by the Commissioner. A copy of the examiner’s accreditation certificate shall accompany the application.

5.2. An approved examiner shall administer all practical examinations in accordance with the practical examination requirements of the ANSI Personnel Certification Accreditation Program, the NCCCO, or an equivalent program as approved by the Commissioner.

5.3. An approved examiner may charge examination fees authorized by the Commissioner. The applicant shall pay all applicable fees directly to the approved examiner.

5.4. The approved examiner shall provide the applicant with an official document depicting the final results of the practical examination.

5.4.a. If the applicant successfully completes the practical examination, the examiner shall notify the applicant and forward a copy of the notice to the Commissioner.

5.5. The Commissioner shall make available a list of approved examiners registered with the Division. An applicant shall make his or her own arrangements for the practical examination with an approved examiner.

Series 26 Weights and Measures Calibration Fees

W. Va. Code R. § 42-26-3 Definitions

3.1. "Certificate of conformance" means the document issued by the Weights and Measures Laboratory that certifies the accuracy of a working standard after it has been tested and calibrated.

3.2. "Commissioner" means the Commissioner of the West Virginia Division of Labor or his or her designee.

3.3. "Division" means the West Virginia Division of Labor.

3.4. "National Institute of Standards and Technology" or "NIST" refers to the federal technology agency that works with industry to develop and apply technology, measurements, and standards and whose address is 100 Bureau Drive, Gaithersburg, MD 20899.

3.5. "Primary standards" means the weights and measures standards that are traceable to the United States prototype standards supplied by the federal government or approved as being satisfactory by the National Institute of Standards and Technology.

3.6. "Prover" or "prover standard" means a standard used to measure and verify the accuracy of a product's volume.

3.7. "Secondary standards" means the weights and measures standards used by the Weights and Measures Laboratory for testing, calibrating and certifying working standards.

3.8. "State Measurement Laboratory" or "Weights and Measures Laboratory" means the facility located at 570 MacCorkle Avenue West, St. Albans, WV 25177.

3.9. "Storage fee" means the fee charged by the Division to store working standards for 10 days or more after notification that the testing and calibration has been completed.

3.10. "Weight" or "weight standard" means a standard used to measure and verify the accuracy of a product's mass or quantity.

3.11. "Working standards" means the weights and measures standards that have been tested, calibrated and certified as accurate by the Weights and Measures Labopratory. ### §42-26-4. Fees and Charges.

4.1. The Division shall charge laboratory testing and calibration fees for the testing of working standards according to the Fee Schedule in Appendix A.

4.2. The Division shall charge a $25.00 cleaning fee in addition to any testing and calibration fee if a working standard must be cleaned before it can be tested or calibrated.

4.3. The Division shall charge a $25.00 fee if the owner of the working standard does not give at least 48 hours notice of cancellation for a scheduled appointment.

4.4. The Division shall charge a comparable fee for metric standards as for customary standards as shown on the Fee Schedule in Appendix A.

4.5. The Division shall charge the fee shown on the Fee Schedule in Appendix A for the retesting of a rejected or condemned working standard.

4.6. When working standards are shipped to and from the Weights and Measures Laboratory, the owner of the working standard shall pay the shipping charges. ### §42-26-5. Certification of Conformance of Working Standards.

5.1. When the Weights and Measures Laboratory certifies the accuracy of a working standard after it has been tested and calibrated, it shall issue a written certification of conformance that identifies the standard by number or other means of identification, the date of the certification and the date of expiration of the certification.

5.2. If a working standard, or any part of a working standard, has been sealed with a wire or lead seal after certification, and the seal is subsequently broken, the working standard shall be retested before being used. ### §42-26-6. Payment of Fees.

6.1. The Division shall provide the owner of any working standards it tests and calibrates with an invoice for services rendered.

6.2. The owner shall pay the invoice within 30 days of receipt of the invoice.

6.3. The Division may refuse services to any person, firm, corporation or government entity who has failed to pay an invoice for services. ### §42-26-7. Working Standards Unsuitable for Testing and Calibrating.

If the Division determines that a working standard is not suitable for testing and calibrating, the Division reserves the right to refuse to perform the testing and calibrating. # Appendix A Weights and Measures Laboratory Testing and Calibration Frequency and Fee Schedule Volumetric or Prover Standard Required Testing and Calibration Frequency Testing and Calibration Fee Storage Fee Prover - up to 5 gallons $30.00 each $2.00/day Prover - from 6 to 49 gallons $100.00 each Prover - from 50 to 399 gallons $200.00 each Prover - over 400 gallons every 5 years $500.00 each LPG (Propane) Prover, 25 gallons every 5 years $250.00 each LPG (Propane) Prover, 100 gallons every 5 years $500.00 each Miscellaneous Standard: Diameter and Weight Required Testing and Calibration Frequency Testing and Calibration Fee Storage Fee Lottery Daily 3 Monthly 1 $25.00 per set of 10 balls None Lottery Cash 25 Monthly 1 $50.00 per case of 25 balls None 1 Monthly testing and calibration frequency on lottery balls is set by the Lottery Commission.

Mass or Weight Standard Required Testing and Calibration Frequency Testing and Calibration Fee Storage Fee Weight cart or buggy2 $200.00 each Weights under 20 pounds3 $5.00 per weight $2.00/day Weights from 20 to 499 pounds 3 $10.00 per weight Weights from 500 to 1,999 pounds 3 $30.00 per weight Weights over 2,000 pounds 3 Fixed location coal load out weights, every 5 years. All other weights, annually $30.00 per weight Pharmacy weight kit every 5 years $50.00/kit up to 16 weights. Additional $5.00 per weight for kits with more than 16 weights. $2.00/day 2 In addition to the calibration and testing fee, there is an additional $20.00 adjustment fee on any weight cart or buggy needing adjustment. 3 In addition to the calibration and testing fee, there is an additional $10.00 adjustment fee per weight on any weight weighing between 1 and 25 pounds needing adjustment. On any weight weighing more than 25 pounds there is an additional $20.00 adjustment fee for each weight needing adjustment.

Series 27 Rules Of Procedure For Contested Case Hearings Dealing with Civil Penalties Under The Weights And Measures Act

W. Va. Code R. § 42-27-1 General

1.1. Scope. -- These procedural rules establish the general procedures for conducting contested case hearings dealing with civil penalties under the West Virginia Weights and Measures Act.

1.2. Authority. -- W. Va. Code §47-1-3 (c).

1.3. Filing Date. -- August 27, 2008.

1.4. Effective Date. -- September 29, 2008.

W. Va. Code R. § 42-27-2 Notice of Hearing

2.1. Notice of hearing in all cases shall be given at least ten (10) days prior to the date of the hearing, stating:

2.1.1. the time, day, and location of the hearing;

2.1.2. a short plain statement of the matter asserted; and

2.1.3. a statement of intention to appoint a hearing examiner if one is to be appointed pursuant to Section 7 of these rules.

W. Va. Code R. § 42-27-3 How Hearings are to be Conducted

3.1. Any party shall have the right to be represented by an attorney-at-law, duly qualified to practice in the State of West Virginia, or to represent himself or herself; Provided, that corporations shall be represented by an attorney-at-law, not a corporate officer or any other person.

3.2. The Division of Labor will present its case regarding whether a violation of any provisions of W. Va. Code § 47-1-1, et seq., or any rule promulgated thereunder, occurred and whether civil penalties are due under the specified weights and measures laws. Any party alleged to have committed a violation and owe such penalties shall thereafter be afforded the opportunity to present its case in defense. The Division of Labor will then be allowed to present its rebuttal.

3.3. Every party shall have the right of cross-examination of witnesses who testify.

3.4. Following the presentation of all the evidence, any party shall have the right to offer argument, not to exceed a reasonable time limit as determined by the Commissioner or the hearing examiner.

W. Va. Code R. § 42-27-4 Continuation and Adjournment

4.1. Hearings may be continued from one day to another or adjourned to a later date or a different place by announcement thereof at the hearing or by appropriate notice to all parties. A written motion for a continuance shall be filed at least five (5) days prior to the scheduled hearing date.

4.2. Except for good cause shown, a party shall be permitted only one (1) motion for a continuance related to any particular hearing.

W. Va. Code R. § 42-27-5 Transcript of Reported Testimony and Evidence

5.1. What reported. -- All testimony, evidence, arguments and rulings on the admissibility of testimony and evidence shall be reported by stenographic notes and characters or by mechanical means.

5.2. Request from any party. -- Upon request to the Commissioner or hearing examiner, all reported materials shall be transcribed and a copy thereof furnished to such party at the requesting party's expense.

5.3. Responsibility for transcript. -- The Commissioner shall have the responsibility for making arrangements for the transcription of the reported testimony and evidence.

W. Va. Code R. § 42-27-6 Submission of Proposed Findings of Fact and Conclusions of Law; Time for Submission

6.1. Any party may submit proposed findings of fact and conclusions of law to the Commissioner or hearing examiner within fifteen (15) days of the conclusion of a hearing, or a date agreed upon by all parties, or in the event that the proceedings of the hearing are transcribed, within fifteen (15) days from the date final transcript is available.

W. Va. Code R. § 42-27-7 Appointment of Hearing Examiner; Function of Hearing Examiner

The Commissioner may, in his or her discretion, appoint a hearing examiner who shall be empowered to subpoena witnesses and documents administer oaths and affirmations, to examine witnesses under oath, to rule on evidentiary questions, to hold conferences for the settlement or simplification of issues by consent of the parties and to otherwise conduct hearings.

W. Va. Code R. § 42-27-8 Orders; content

Every final order entered by the Commissioner, or hearing examiner, following a hearing conducted pursuant to these rules, shall be made pursuant to the provisions of W. Va. Code §29A-5-3 of 1931, as amended. Such orders shall be entered within thirty (30) days following the submission of all documents and materials, including transcripts and proposed findings of fact and conclusion of law.

W. Va. Code R. § 42-27-9 Appeal

An appeal from any final order or ruling entered in accordance with these regulations shall be in accordance with the provisions of W. Va. Code §29A-5-4.

W. Va. Code R. § 42-27-10 Severability

If any provision of these rules or the application thereof to any person or circumstance shall be held invalid, such invalidity thereof shall not affect the provision or application of these regulations which can be given effect without the invalid provision or application and to this end the provisions of these regulations are declared to be severable.

42CSR27

42CSR27

Series 30 Nurse Overtime Complaints

W. Va. Code R. § 42-30-1 General

1.1. Scope. This legislative rule governs the procedures for the handling of nurse overtime complaints against hospitals in accordance with W. Va. Code §§21-5F-4 and W. Va. Code 29A-5-1 et seq.

1.2. Authority. -- W. Va.. Code §21-5F-4.

1.3. Filing Date. -- April 7, 2006.

1.4. Effective Date. -- July 1, 2006.

W. Va. Code R. § 42-30-2 Application and Enforcement

2.1. Application. This legislative rule applies to the West Virginia Division of Labor and all persons, firms or corporations governed or otherwise defined under the coverage of the West Virginia Code §21-5F-1 et seq.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor in accordance with West Virginia Code §21-1-3 et seq.

W. Va. Code R. § 42-30-3 Definitions

3.1. The “Act” means the Nurse Overtime and Patient Safety Act, W.Va. Code §21-5F-1 et seq., and this rule.

3.2. “Commissioner” means the commissioner of the West Virginia Division of Labor.

3.3. “Complaint” means the filing of allegations which indicate a violation of the Act or this rule and which requires an investigation by the division.

3.4. “Division” means the West Virginia Division of Labor.

3.5. “Hospital” means a facility licensed under the provisions of article five-v, chapter sixteen of this code, but does not include hospitals operated by state or federal agencies.

3.6. “Nurse” means a certified or licensed practical nurse or a registered nurse who is providing nursing services and is involved in direct patient care activities or clinical services, but does not include certified nurse anesthetists. Nurse managers are included with respect to their delivery of in-hospital patient care.

3.7. “On-call time” means time when the employee is off the clock and away from the employer’s premises but the employer maintains certain restrictions as to the employee’s use of that time. On-call time may exist while on the employer’s premises but is always regarded as on the clock.

3.8. “Overtime” means, for the purpose of this rule, the hours worked in excess of an agreed upon, predetermined, regularly scheduled shift.

3.9. “Regularly scheduled shift” means a routinely scheduled work period which is predetermined and does not distinguish between full-time or part-time.

3.10. “Taking action against” means discharging; disciplining; threatening; reporting to the board of nursing; discriminating against; or penalizing regarding compensation, terms, conditions, location or privileges of employment.

3.11. “Twenty-four hour period” means the twenty-four hours immediately following a break of at least eight hours.

3.12. “Unforeseen emergent situation” means an unusual, unpredictable or unforeseen circumstance such as, but not limited to, an act of terrorism, a disease outbreak, adverse weather conditions or natural disasters. An unforeseen emergent situation does not include situations in which the hospital has reasonable knowledge of increased patient volume or decreased staffing, including, but not limited to, scheduled vacations and scheduled health care worker medical leave.

W. Va. Code R. § 42-30-4 Overtime Restrictions

4.1. No nurse may be required to work beyond their regularly scheduled shift except in unforeseen emergent situations that jeopardizes patient safety, when required to fulfill prescheduled on-call time, or when required to complete a single patient care procedure already in progress.

4.2. No nurse may be permitted to work in excess of sixteen consecutive hours in a twenty-four hour period, including voluntary overtime except in unforeseen emergent situations that jeopardizes patient safety, when required to fulfill prescheduled on-call time, or when required to complete a single patient care procedure already in progress.

4.3. On-call time which is off premises and compensation is not required by federal or state law shall not be considered as time worked when calculating the maximum permissible hours to be worked.

4.4. On-call hours which are on the employer’s premises or for which law required the employee to be paid compensation shall be considered as work time when calculating the maximum permissible hours to be worked.

4.5. A nurse shall be given a break of at least eight hours after working twelve consecutive hours. If the twelve hour maximum is reached during a scheduled shift, the break may be delayed until the end of the shift or the sixteen hour maximum as required by W. Va. Code §21-5F and this rule.

4.6. An employer is prohibited from taking action against a nurse who refuses an assignment of overtime in violation of W.Va. Code §21-5F or for any action by a nurse relative to his or her rights to refuse overtime assignments. The filing of a complaint is considered a nurse’s right under the provisions of W. Va. Code §21-5F and this rule.

W. Va. Code R. § 42-30-5 Confidentiality of Records

5.1. All investigations, complaints, reports, records, proceedings and other information received by the Division and related to complaints pursuant to this rule, including the identity of the complainant or respondent, are confidential and shall not be knowingly and improperly disclosed by any person, the commissioner or Division staff, except as follows:

(a) Upon a finding that probable cause exists to believe that a respondent has violated the provisions of the act, the complaint and all reports, records, non-privileged and non-deliberative materials introduced at any probable cause hearing held pursuant to the complaint are thereafter not confidential: Provided, that the confidentiality of the information shall remain in full force and effect until the respondent has been served with a copy of the statement of charges;

(b) Any subsequent hearing held in the matter for the purpose of receiving evidence or the arguments of the parties or their representatives shall be open to the public and all reports, records and non-deliberative materials introduced into evidence at the subsequent hearing, as well as the commissioner’s orders, are not confidential;

(c) The complaint as well as the identity of the complainant shall be disclosed to a person named as respondent in any complaint filed immediately upon the respondent’s request; or (d) Where the commissioner or the Division is otherwise required by the provisions of the Act to disclose the information or to proceed in a manner that disclosure is necessary and required to fulfill the requirements.

5.2. If, in a specific case, the commissioner or Division finds that there is a reasonable likelihood that the dissemination of information or opinion in connection with a pending or imminent proceeding will interfere with a fair hearing or otherwise prejudice the due administration of justice, the commissioner or Division shall order that all or a portion of the information communicated to the commissioner or the Division to cause an investigation and all allegations of violations or misconduct contained in a complaint is confidential, and the person providing the information or filing a complaint is bound to confidentiality until further order of the commissioner.

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42CSR30

Series 31 Verifying the Legal Employment Status of Workers

W. Va. Code R. § 42-31-4 Employer's Responsibility to Verify Employees' Legal Employment Status; and Employment of Unauthorized or Undocumented Workers Prohibited

4.1. An employer shall verify all employees' legal employment status prior to their first day of employment or prior to entering into a contract for employment of any individual.

4.2. An employer shall not knowingly hire or continue to employ an unauthorized or undocumented worker. ### §42-31-5. Record-keeping Requirements; and Content of Records.

5.1. An employer shall maintain a written record of the name and address of each employee, the employee's rate of pay, hours of employment, payroll deductions, and amount of net pay for each pay period.

5.2. In addition to the requirements of subsection 5.1 of this rule, an employer shall document proof of each employee's legal employment status. The following documents shall be accepted as proof of an employee's legal employment status:

5.2.1. A valid social security card;

5.2.2. A valid immigration or non-immigration visa including photo identification;

5.2.3. A valid birth certificate;

5.2.4. A valid passport;

5.2.5. A valid photo identification card issued by a government agency;

5.2.6. A valid permit issued by the United States Department of Justice;

5.2.7. A valid work permit or supervision permit issued to a minor child under the age of 18 years and authorized by the Division; or

5.2.8. Any other valid document providing evidence of legal employment status in the United States.

5.3. An employer shall preserve each employee's records for a period of at least 2 years after the employee has separated from employment. ### §42-31-6. Records to be Open or Produced for Inspection by the Commissioner; and Notice to Produce Records.

6.1. An employer shall keep employee records in a safe and accessible manner at the place or places of employment, or at one or more established central record-keeping offices where the records are customarily maintained.

6.2. During the course of an investigation to determine an employer's compliance with the Act and this rule, the Commissioner may ask an employee his or her name and the name of his or her employer.

6.3. An employer shall permit the Commissioner to inspect employee records required by the Act and this rule at reasonable times for examination, copying, photographing or otherwise reproducing in order to determine an employer's compliance with W. Va. Code §§21-1B-3 and 4.

6.3.1. If employee records are kept and maintained at a work site, an employer shall make all records required by this rule available to the Commissioner immediately.

6.3.2. If all employee records are not immediately available, the Commissioner shall issue a "Notice to Produce Records or Documents" to the employer or to the individual designated by the employer to be in charge of the work site.

6.4. If employee records are kept and maintained at the place of employment other than the work site, or at a central records-keeping office other than the work site or place of employment, the Commissioner shall issue a "Notice to Produce Records or Documents" to the employer or to the individual designated by the employer to be in charge of the work site.

6.5. Upon issuance by the Commissioner of a "Notice to Produce Records or Documents," the employer shall produce the required records or documents within 72 hours or 3 business days after receipt of the notice.

6.6. Upon a written request by an employer, and for good cause shown, the Commissioner may consider a time-limited waiver of the 72 hour or 3 business day time frame.

6.7. Upon a determination by the Commissioner that any employee's documents are invalid or incomplete, the Commissioner shall immediately provide written notification to the employer.

W. Va. Code R. § 42-31-7 Issuance of a Citation for Employer's Failure to Produce Required Records or Documents

7.1. If an employer fails to respond to a "Notice to Produce Records or Documents" or otherwise fails to produce the records or documents required by the Act and this rule within the time frames set forth in section 6 of this rule, the Commissioner may issue a "State of West Virginia Uniform Citation."

7.2. If the Commissioner issues a State of West Virginia Uniform Citation, he or she shall promptly file it with a magistrate or circuit court in the county where the employer's violation occurred.

W. Va. Code R. § 42-31-8 Confirming the Validity of an Employee's Legal Employment Status; Limitations on the Use of Confidential or Identifying Information

8.1. The Commissioner may ask the Bureau of Employment Programs, the Division of Motor Vehicles or any other state agency for assistance in confirming the validity of an employee's legal employment status.

8.2. The Commissioner may provide information to the Bureau of Employment Programs, the Department of Motor Vehicles, and any other state agency, for the limited purpose of confirming the validity of an employee's employment legal status.

8.3. The Commissioner shall use any confidential or identifying information obtained for the limited purpose of confirming the validity of an employee's legal employment status.

8.4. Any confidential or identifying information shall be redacted or otherwise expunged from any permanent record maintained by the Division and prior to any lawful request for the release thereof.

Series 32 Supervision of Plumbing Work

W. Va. Code R. § 42-32-1 General

1.1. Scope. -- This rule governs licensing, fees, examinations, and penalties for violations in accordance with W. Va. Code §21-14-1 et seq. and §21-17-1 et seq.

1.2. Authority. -- W. Va. Code §21-14-4 and §21-17-12.

1.3. Filing Date. -- March 31, 2023.

1.4. Effective Date. -- May 1, 2023.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2028.

W. Va. Code R. § 42-32-2 Application and Enforcement

2.1. Application. This legislative rule applies to all persons and matters governed by or otherwise within the jurisdiction of the Supervision of Plumbing Work Act, W. Va. Code §21-14-1 et seq.

2.2. Enforcement. The enforcement of this legislative rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-32-3 Definitions

3.1. “Act” means the Supervision of Plumbing Work Act, W. Va. Code §21-14-1 et seq.

3.2. “Cease and desist order” means an order issued by the Division of Labor pursuant to the Act and this rule to an unlicensed person who performs work for which a license is required.

3.3. “Classification” means the scope of work of a master plumber, journeyman plumber, or plumber-in-training as defined in the Act and this rule.

3.4. “Commissioner” means the Commissioner of the West Virginia Division of Labor and his or her authorized representatives.

3.5. “Direct supervision” or “supervision” means the competency of a licensed master plumber or licensed journeyman plumber to provide instruction to and direction of the plumbing work of a licensed plumber-in-training and to exercise oversight and control of such plumbing work at each separate job site or location in accordance with section 8 of this rule.

3.6. “Division” means the West Virginia Division of Labor and its authorized representatives.

3.7. “Immediate family,” as used in W. Va. Code §21-14-3(c)(1), means a person’s parents, spouse, sibling, or child.

3.8. “ICC” refers to the International Code Council, 500 New Jersey Avenue NW, 6th Floor, Washington, D.C. 20001.

3.9. “Other authorization to practice,” as used in section 14 of this rule, means a nontransferable acknowledgment, other than a license, by another state government that is provided to an individual asserting that the individual has met the educational and examination requirements to engage in the performance of plumbing work.

W. Va. Code R. § 42-32-4 Adoption of Standards

The International Plumbing Code, published by the ICC and as adopted by the West Virginia State Fire Commission in 87 CSR 4, is incorporated herein in its entirety by reference.

W. Va. Code R. § 42-32-5 Licensure Required

5.1. Except as otherwise provided in the Act, no person may perform or offer to perform plumbing work in this state without a license.

5.2. Any person licensed pursuant to the provisions of the Act and this rule shall carry proof of a valid license at all times when performing plumbing work in this state.

5.3. A license issued pursuant to the Act and this rule is not transferable.

W. Va. Code R. § 42-32-6 Licensure of Master Plumbers and Journeyman Plumbers

6.1. Any person desiring to be licensed with a master plumber or journeyman plumber classification shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 9 of this rule.

6.2. All applicants for a master plumber license or journeyman plumber license shall pass a required written examination for the desired classification, as set forth in the Act and section 10 of this rule, except in the case of an applicant seeking licensure in accordance with section 14 of this rule.

6.3. A master plumber’s license and journeyman plumber’s license is valid for up to one year unless sooner suspended or revoked by the Commissioner.

6.4. A licensed master plumber or licensed journeyman plumber may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 9 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a late fee of $25 in addition to the annual renewal fee: Provided: That a license that has been expired for 90 days or more cannot be renewed.

6.5. A duplicate license may be issued upon receipt of a written request to the Commissioner from the licensee. The Commissioner may charge $10 fee for a duplicate license.

W. Va. Code R. § 42-32-7 Licensure of Plumbers-In-Training

7.1. Any person desiring to be licensed as a plumber-in-training shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 9 of this rule.

7.2. A plumber-in-training’s license is valid for up to one year unless sooner suspended or revoked by the Commissioner.

7.3. A licensed plumber-in-training may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 9 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a late fee of $25 in addition to the annual renewal fee: Provided: That a license that has been expired for 90 days or more cannot be renewed.

7.4. A duplicate license may be issued upon receipt of a written request to the Commissioner from the licensee. The Commissioner may charge $10 fee for a duplicate license.

W. Va. Code R. § 42-32-8 Supervision Ratio

A licensed master plumber or licensed journeyman plumber may directly supervise no more than three licensed plumbers-in-training.

W. Va. Code R. § 42-32-9 Licensure Fees

9.1. An initial or renewal applicant for a master plumber license or a journeyman plumber license shall pay a $75 annual license fee.

9.2. An initial or renewal applicant for a plumber-in-training license shall pay a $25 annual license fee.

9.3. Any renewal application that is received or postmarked more than 15 days after the license’s expiration date shall pay a $25 late fee in addition to the annual license fee.

9.4. The Commissioner may charge a $10 fee for a duplicate license upon receipt of a written request from the licensee.

W. Va. Code R. § 42-32-10 Examination Required for Master Plumbers and Journeyman Plumbers

10.1. Any person desiring to be licensed as a master plumber or journeyman plumber under the provisions of the Act and this rule shall take the examination required for the desired classification and obtain a minimum score of at least 70%.

10.2. The Commissioner shall provide for written examinations for master plumber and journeyman plumber license applicants that test the applicant’s knowledge of the International Plumbing Code. The Commissioner shall establish an examination fee schedule for the administration of examinations. The Commissioner may:

10.2.1. Contract with a private testing agent to conduct examinations, in which case applicants shall pay the examination fee directly to the testing agent; or

10.2.2. Develop examinations and examination procedures and conduct examinations, in which case applicants shall pay the examination fee directly to the Division in advance of the examination.

10.3. An applicant who does not receive a minimum score of 70% on an examination is eligible to retake an examination upon payment of the applicable examination fee.

10.4. An applicant who achieves a passing score on a journeyman plumber examination is not eligible to take the master plumber examination until the expiration of 12 months from the date of passage of the journeyman plumber examination.

W. Va. Code R. § 42-32-11 Denial, Suspension, Revocation, and Reinstatement of Licenses; Investigations; Grounds for Disciplinary Action

11.1. The Commissioner may deny, suspend, revoke, or reinstate a license in accordance with the provisions of the Act and this rule. A violation of the Act or this rule is grounds for the denial, suspension, revocation, or refusal to reinstate a license and permits the imposition of disciplinary action.

11.2. Upon receipt of a complaint or upon his or her own inquiry, the Commissioner shall conduct an investigation to determine whether there are grounds for disciplinary action against a licensee. All complaints shall be in writing and include the name, address, and phone number of the complainant. The Commissioner shall provide a copy of the complaint to the licensee.

11.3. Any disciplinary action against a licensee may not be imposed without notice to the licensee and opportunity for a hearing in accordance with the provisions of W. Va. Code §29A-5-1 et seq.

11.3.1. The Commissioner may conduct the hearing or appoint a hearing examiner.

11.3.2. A licensee has a right to attend the hearing in person, to be represented by an attorney at law licensed to practice in West Virginia, or to submit a written response to the Commissioner, and may offer testimony and submit relevant factual information: Provided, That if the licensee receives proper notice of the hearing, the licensee’s failure to attend the hearing does not preclude the imposition of disciplinary action.

11.3.3. If the Commissioner appoints a hearing examiner to conduct the hearing, the hearing examiner shall submit a recommended decision to the Commissioner within 10 days of conclusion of the hearing. The hearing examiner may recommend the imposition of any appropriate disciplinary action permitted by the Act or this rule. The Commissioner shall accept, reject, or modify the hearing examiner’s recommended decision and issue a final order within 10 days of receipt of the recommended decision.

11.3.4. If the Commissioner conducts the hearing and concludes that a violation of the Act or this rule occurred, the Commissioner shall issue a final order within 10 days of the hearing’s conclusion and may impose any disciplinary action permitted by the Act or this rule.

W. Va. Code R. § 42-32-12 Cease and Desist Orders; Penalties

12.1. Upon a determination that a person is engaged in plumbing work in this state without a valid license, the Division shall issue a cease and desist order requiring that person to immediately cease all operations in this state. The person can immediately engage in plumbing work upon issuance of a license.

12.2. Any person continuing to engage in plumbing work after the issuance of a cease and desist order is subject to a penalty of not less than $200 nor more than $1,000 as set forth in W. Va. Code §21-14-7.

W. Va. Code R. § 42-32-13 Appeals

Any person adversely affected by an action of the Commissioner may appeal in accordance with the provisions of W. Va. Code §29A-5-1 et seq.

W. Va. Code R. § 42-32-14 Reciprocity; Work Experience

14.1. To the extent that other states license or issue other authorization to practice for master plumbers, journeyman plumbers, or plumbers-in-training, and have requirements equivalent to the Act and this rule, the Commissioner, in his or her discretion, may grant licenses of the same classification without examination to plumbers licensed or authorized by other states, as follows:

14.1.1. The applicant has provided satisfactory proof of his or her qualifications, including the applicant’s compliance with all requirements of W. Va. Code §21-17-3(a); and

14.1.2. The applicant has paid the applicable license fee as prescribed in section 9 of this rule.

14.2. To the extent that an applicant is seeking licensure based on work experience, the Commissioner, in his or her discretion, may grant a license with the applicable classification without examination as follows:

14.2.1. The applicant’s work experience is in a state that does not license or issue other authorization to practice for the performance of plumbing work;

14.2.2. The applicant has provided satisfactory proof of his or her qualifications, including the applicant’s compliance with all requirements of W. Va. Code §21-17-4; and

14.2.3. The applicant has paid the applicable license fee as prescribed in section 9 of this rule.

Series 33 Employer Wage Bonds

W. Va. Code R. § 42-33-1 General

1.1. Scope. -- This rule is for the enforcement of the wage bond sections of the Wage Payment and Collection Act, W. Va. Code §§21-5-14 through 21-5-16, concerning certain employers’ responsibility to post a wage bond, the types of acceptable wage bonds, the procedures to request a waiver of the wage bond requirements, the procedures to request a release of a wage bond, actions by the Commissioner to pay employee wages from a wage bond, and actions by the Commissioner against an employer in violation of wage bond obligations.

1.2. Authority. -- W. Va. Code §§21-5-13 and 21-5-14 (b).

1.3. Filing Date. -- March 23, 2018.

1.4. Effective Date. -- March 30, 2018.

1.5. Sunset Date. This rule shall terminate and have no further force or effect on March 30, 2028.

W. Va. Code R. § 42-33-2 Application and Enforcement

2.1. Application. This rule applies to the West Virginia Division of Labor and all persons subject to or otherwise within the purview of the wage bond sections of the Wage Payment and Collection Act, W.

Va. Code §§21-5-1, and 21-5-14 through 21-5-16.

2.2. Enforcement. The enforcement of this rule is vested with the West Virginia Division of Labor.

W. Va. Code R. § 42-33-3 Definitions

3.1. The “Act” means the Wage Payment and Collection Act, W. Va. Code §21-5-1 et seq.

3.2. “Adequate wage bond” means a bond in an amount that is at least equal to an employer’s gross payroll for 4 weeks at full capacity or production plus 15% of that gross payroll.

3.3. “Asset” as used in W. Va. Code §21-5-14(a)(2) includes tangible property such as cash, inventory, real estate, buildings, accounts receivable, equipment, and similar items that are owned by the employer, minus the amount of the asset’s indebtedness, if any.

3.4. “Bona fide benefit plan” means a written plan, fund or program into which an employer pays irrevocable contributions to a trustee or third party as long as the plan’s express purpose is to provide exclusively for the payment of benefits to employees.

3.5. “Claimant” means an employee or former employee who submits a request for assistance to the Division, alleging that he or she is owed unpaid wages or fringe benefits.

3.6. “Covered activity” means construction work, as defined in W. Va. Code §21-5-1(j), or the severance, production or transportation of minerals, as defined in W. Va. Code §21-5-1(k).

3.7. “Days” means calendar days unless otherwise stated.

3.8. “Division” means the Division of Labor.

3.9. “Request for Assistance” or “RFA” means a document submitted to the Division by a claimant alleging that he or she is owed unpaid wages or fringe benefits.

3.10. “Termination,” as used in W. Va. Code §21-5-14(g), is synonymous with cancellation, withdrawal, or release.

3.11. “Transportation” means any method, other than by rail or by water, of moving minerals, as defined in W. Va. Code §21-5-1(k), from one physical location to another.

3.12. “Wage bond” means a legally enforceable written instrument executed by an employer, payable to the Division, which the Commissioner can draw upon if the employer defaults on its obligation to pay employees their earned wages and fringe benefits.

W. Va. Code R. § 42-33-4 Employer Responsibilities; Criteria for Employer Exemptions; Prime Contractor Responsibilities; Required Posting of Notices

4.1. Unless otherwise exempt, an employer engaged in or about to engage in a covered activity shall furnish a wage bond to the Division.

4.2. In computing the amount of a wage bond as required by W. Va. Code §21-5-14(a), an employer may exclude the wages paid to any individual who owns at least a 20% interest in the business.

4.3. An employer is exempt from posting a wage bond when the employer can demonstrate:

4.3.a. that the employer has been doing business in this state, as defined in W. Va. Code §21-5- 1(n), with the same employer identification number issued by the Internal Revenue Service, for at least one year immediately preceding the Division’s evaluation of the employer’s wage bond status; or

4.3.b. that the employer has been in business in another state for at least 5 years immediately preceding the Division’s evaluation of the employer’s wage bond status; or

4.3.c. that the employer has at least $100,000.00 in assets immediately preceding the Division’s evaluation of the employer’s wage bond status; or

4.3.d. that the employer is a subsidiary of a parent company that has been in business for at least 5 years immediately preceding the Division’s evaluation of the employer’s wage bond status.

W. Va. Code R. § 42-33-5 Types of Acceptable Wage Bonds; Required Forms

5.1. If an employer presents a check or money order as a wage bond, the Commissioner shall only accept them if the employer executes the form provided by the Division, authorizing the Commissioner to use as much of the cash bond assets as necessary, upon the employer’s default, to pay employee wages and fringe benefits that are due and owing.

5.2. If an employer presents a certificate of deposit as a wage bond, the Commissioner shall only accept it under the following circumstances:

5.2.a. The issuing bank or credit union has a physical location in this State;

5.2.b. The issuing bank is insured by the Federal Deposit Insurance Corporation (“FDIC”) or the issuing credit union is insured by the National Credit Union Administration (“NCUA”);

5.2.c. The issuing bank or credit union agrees to automatically renew the certificate of deposit until it is released by the Commissioner’s express written authorization;

5.2.d. The issuing bank or credit union executes the form provided by the Division, acknowledging that it will honor the Division’s demand for payment of wages and fringe benefits upon an employer’s default and that it will not allow the employer or anyone else to make any withdrawals against the certificate of deposit without the Commissioner’s express written authorization; and

5.2.e. The employer executes the form provided by the Division, authorizing the Commissioner to use as much of the certificate of deposit assets as necessary, upon the employer’s default, to pay employee wages and fringe benefits that are due and owing.

5.3. If an employer presents an irrevocable letter of credit as a wage bond, the Commissioner shall only accept it under the following circumstances:

5.3.a. The issuing bank is insured by the Federal Deposit Insurance Corporation (“FDIC”) or the issuing credit union is insured by the National Credit Union Administration (“NCUA”);

5.3.b. The issuing bank or credit union executes the form provided by the Division, acknowledging that it will honor the Division’s demand for payment of wages and fringe benefits upon an employer’s default and that it will not withdraw or cancel the letter of credit, or permit the employer to withdraw or cancel the letter of credit without the Commissioner’s express written authorization; and

5.3.c. The employer executes the form provided by the Division, authorizing the Commissioner to use as much of the irrevocable letter of credit assets as necessary, upon the employer’s default, to pay employee wages and fringe benefits that are due and owing.

5.4. If an employer presents a surety bond as a wage bond, it shall only be accepted under the following circumstances:

5.4.a. The bond is issued by an insurance company licensed by the West Virginia Offices of the Insurance Commissioner;

5.4.b. The employer and the surety execute the form provided by the Division, which shall include the following provisions:

5.4.b.1. A guarantee that the employer shall pay all wages and fringe benefits to employees when they are due;

5.4.b.2. If an employer fails or defaults in the payment of wages and fringe benefits when they are due, a guarantee that the surety will honor the Division’s demand for payment of wages and fringe benefits; and

5.4.b.3. A guarantee that the surety will not withdraw or cancel the bond without written notification to the Commissioner, giving at least 60 days notice from the post-mark date of the intended cancellation, mailed by any delivery method that requires a signature verifying receipt; and

5.4.c. The employer executes the form provided by the Division, authorizing the Commissioner to use as much of the surety bond assets as necessary, upon the employer’s default, to pay employee wages and fringe benefits that are due and owing.

W. Va. Code R. § 42-33-6 Employee Claim for Unpaid Wages or Fringe Benefits Against a Wage Bond; Investigation by the Division

6.1. An employee or former employee whose wages or fringe benefits are secured by a wage bond and who reasonably believes that he or she is owed unpaid wages or fringe benefits, shall submit a request for assistance (“RFA”) to the Division, and shall provide the Division with any documents in support of such claim.

6.2. Upon receipt of an RFA, the Division shall place a hold on the employer’s wage bond so that the bond is not eligible for release until all matters concerning the claim have been resolved.

6.3. The Division shall investigate the merits of the claim and shall make a determination about whether the employer has failed to pay wages or fringe benefits.

6.4. If the Commissioner determines that an employee has not been paid his or her wages or fringe benefits, the Commissioner shall make a written demand of the employer to pay the wages and fringe benefits that are owed.

6.5. If the employer does not make payment of the wages and fringe benefits or otherwise fails to respond to the demand within the time frame established by the Commissioner, not to exceed 30 days, the Commissioner shall certify the claim to the State Treasurer, the surety, the bank, or the credit union for payment of the wages and fringe benefits from the wage bond.

W. Va. Code R. § 42-33-7 Payment from Wage Bond Proceeds Directly to a Bona Fide Benefit Plan

The Division shall pay wage bond proceeds directly to a bona fide benefit plan only under the following conditions:

7.1. Pursuant to a court order; or

7.2. Pursuant to a written, notarized authorization executed by an employee or former employee.

W. Va. Code R. § 42-33-8 Employer’s Request to the Commissioner to Waive the Wage Bond Requirements

8.1. Upon receiving a request from an employer, the Commissioner may waive the wage bond requirements of the Act or this rule, if he or she determines that the employer is of sufficient financial responsibility to pay wages and fringe benefits.

8.2. An employer seeking a waiver of the Act’s wage bond requirements shall apply in writing to the Commissioner. The application shall include notarized financial statements prepared in accordance with generally accepted accounting principles covering at least the 2 most recent years of operation, and shall include the following documents:

8.2.a. A balance sheet or statement of the employer’s financial position;

8.2.b. A statement of the employer’s revenues and expenses;

8.2.c. A statement of any change in the employer’s financial position;

8.2.d. Related notes of financial disclosure;

8.2.e. A statement of the length of time the employer has been in business;

8.2.f. A statement of the length of time the employer has been in business in this State;

8.2.g. A statement of the length of time the employer has had employees; and

8.2.h. If the employer is a subsidiary of a parent company, the name and address of the parent company, and the names, titles and addresses of the parent company’s officers and members of the board of directors, if any.

8.3. After review of the waiver application, the Commissioner shall notify the employer in writing whether the request has been approved or denied.

8.4. The Commissioner, upon good cause, may withdraw or otherwise cancel the waiver and require the employer to post a wage bond as required by the Act and this rule.

8.5. The Commissioner may waive the wage bond requirements for the wages and fringe benefits of owners, members, partners or corporate officers upon receipt of a written application. The application shall include a sworn affidavit from each person covered in the waiver request, stating that the individual is a bona fide owner, member, partner or corporate officer holding at least a 20% share of the business.

W. Va. Code R. § 42-33-9 Release of a Wage Bond by the Commissioner

9.1. An employer may apply to the Commissioner for the release of a wage bond after the employer has been doing business in this State, as defined in W. Va. Code §21-5-1(n), for 1 year.

9.2. To apply for the release of a wage bond, an employer shall certify by sworn affidavit that the following has occurred:

9.2.a. The employer has ceased doing business in this State and all wages and fringe benefits owed to employees have been paid; or

9.2.b. The employer has been doing business in this State for 1 year without any change in the business structure, entity or form and all wages and fringe benefits owed to employees have been paid; or

9.2.c. The employer is no longer engaged in a covered activity; or

9.2.d. The employer is still actively engaged in a covered activity, but does not have employees; or

9.2.e. The employer has been in business in another state for at least 5 years; or

9.2.f. The employer has at least $100,000 in assets; or

9.2.g. The employer is a subsidiary of a parent company that has been in business for at least 5 years; and

9.2.h. The employer has notified all employees working in West Virginia whose wages are or were covered by the bond that (1) the employer has applied to the Commissioner for a release of the wage bond and (2) if the employees have a wage claim they must promptly notify the Commissioner so that the Division can resolve the claims prior to releasing the bond.

9.3. Upon receipt of an employer’s sworn affidavit requesting the release of a wage bond, the Commissioner shall confirm that the Division has no unresolved or pending employee claims for wages or fringe benefits.

9.4. If the Commissioner determines that the wage bond may be released, he or she shall notify the State Treasurer in writing, authorizing the release of the bond.

9.5. If the Commissioner determines that the wage bond cannot be released, he or she shall notify the employer. The notice shall include the reasons why the bond cannot be released.

9.6. The Commissioner may, on his or her own initiative, authorize the release or cancellation of a wage bond after determining that one of the conditions specified in subsections 9.2.a through 9.2.h has occurred.

9.6.a. The Commissioner shall notify the employer in writing that the wage bond is eligible for release.

9.6.b. After notification, if the employer does not respond to the Commissioner or otherwise take steps to reclaim its wage bond, the Division shall process the release or cancellation of the bond as unclaimed property.

Series 34 Regulation of HVAC Work

W. Va. Code R. § 42-34-1 General

1.1. Scope. -- This rule governs licensing, fees, examinations, and penalties for violations in accordance with §21-16-1 et seq., §21-1E-1 et seq., and §21-17-1 et seq.

1.2. Authority. -- W. Va. Code §21-16-5, §21-1E-4, and §21-17-12.

1.3. Filing Date. -- March 31, 2023.

1.4. Effective Date. -- May 1, 2023.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2028.

W. Va. Code R. § 42-34-2 Application and Enforcement

2.1. Application. This legislative rule applies to all persons and matters governed or otherwise within the jurisdiction of the Regulation of Heating, Ventilating, and Cooling Act, W. Va. Code §21-16-1 et seq.

2.2. Enforcement. The enforcement of this legislative rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-34-3 Definitions

3.1. “Act” means the Regulation of Heating, Ventilating, and Cooling Work Act, W. Va. Code §21-16-1 et seq.

3.2. “Cease and desist order” means an order issued by the Division of Labor pursuant to the Act and this rule to an unlicensed person who performs work for which a license is required.

3.3. “Classification” or “scope of work” means the scope of practice of an HVAC technician, HVAC residential technician, or HVAC technician-in-training as defined in W. Va. Code §21-16-4.

3.4. “Commissioner” means the Commissioner of the West Virginia Division of Labor and his or her authorized representatives.

3.5. “Direct supervision” means the direction, oversight, and control of a licensed HVAC technician-in-training’s work by a licensed HVAC technician or a licensed HVAC residential technician. “Direct supervision” also means the direction, oversight, and control of a licensed HVAC residential technician by a licensed HVAC technician on non-residential HVAC systems.

3.6. “Division” means the West Virginia Division of Labor and its authorized representatives.

3.7. “Employer-sponsored training program” means a planned curriculum, approved by the Commissioner, that includes training in workplace and technical competencies.

3.8. “HVAC work” means heating, ventilating, and air conditioning or cooling work, but does not include work on refrigeration lines, steam lines, or hydronics.

3.9. “ICC” refers to the International Code Council, 500 New Jersey Avenue NW, 6th Floor, Washington, D.C. 20001.

3.10. “Immediate family,” as used in W. Va. Code §21-16-3(d)(1), means a person’s parents, spouse, sibling, or child.

3.11. “Non-residential heating, ventilating, and cooling system” means any system:

3.11.1. Consisting of more than four separate heating, ventilating, and cooling units with a combined capacity of more than 20 tons – 520,000 BTUs;

3.11.2. Used in commercial structures over 5,000 square feet;

3.11.3. Where fire dampers are used or required; or

3.11.4. Consisting of packaged rooftop units.

3.12. “Other authorization to practice,” as used in section 15 of this rule, means a nontransferable acknowledgement, other than a license, by another state government that is provided to an individual asserting that the individual has met the educational and examination requirements to engage in the performance of HVAC work.

W. Va. Code R. § 42-34-4 Adoption of Standards

The International Mechanical Code and the International Residential Code for One-and-Two-Family Dwellings, published by the ICC and as adopted by the West Virginia State Fire Commission in 87 CSR 4, are incorporated herein in their entirety by reference.

W. Va. Code R. § 42-34-5 Licensure Required

5.1. Except as otherwise provided in the Act, no person may perform or offer to perform HVAC work in this state without a license.

5.2. Any person licensed pursuant to the provisions of the Act and this rule shall carry proof of a valid license at all times when performing HVAC work in this state.

5.3. A license issued pursuant to the Act and this rule is not transferable.

W. Va. Code R. § 42-34-6 Licensure of HVAC Technicians; Veteran Qualifications for HVAC Technician Licensure

6.1. Any person desiring to be licensed as an HVAC technician shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 10 of this rule.

6.2. All applicants for an HVAC technician license shall pass a required written examination, except in the case of an applicant seeking licensure in accordance with section 15 of this rule.

6.3. All applicants for an HVAC technician license shall submit proof completion of at least 2,000 hours of HVAC-related work, training, and experience: Provided, That an applicant who has served as a member of any branch of the United States Armed Forces, the National Guard, or armed forces reserve may submit proof of the applicant’s completion of a course of instruction required to qualify him or her for rating as an HVAC technician or other equivalent rating in lieu of proof that the applicant completed at least 2,000 hours of HVAC-related work, training, and experience. Training and experience may include, but is not limited to, the successful completion of an HVAC-related training program acquired through career technical education provided by the state’s public schools, an apprenticeship program, or an employer-sponsored program as defined in subsection 3.7 of this rule.

6.4. An HVAC technician license is valid for up to one year unless sooner suspended or revoked by the Commissioner.

6.5. A licensed HVAC technician may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 10 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a late fee of $25 in addition to the annual renewal fee: Provided: That a license that has been expired for 90 days or more cannot be renewed.

6.6. A duplicate license may be issued upon receipt of a written request to the Commissioner from the licensee. The Commissioner may charge $10 fee for a duplicate license.

W. Va. Code R. § 42-34-7 Licensure of HVAC Residential Technicians

7.1. Any person desiring to be licensed as an HVAC residential technician shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 10 of this rule.

7.2. All applicants for an HVAC residential technician license shall pass a required written examination, except in the case of an applicant seeking licensure in accordance with section 15 of this rule.

7.3. An HVAC residential technician license is valid for up to one year unless sooner suspended or revoked by the Commissioner.

7.4. A licensed HVAC residential technician may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 10 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a late fee of $25 in addition to the annual renewal fee: Provided: That a license that has been expired for 90 days or more cannot be renewed.

7.5. A duplicate license may be issued upon receipt of a written request to the Commissioner from the licensee. The Commissioner may charge $10 fee for a duplicate license.

W. Va. Code R. § 42-34-8 Licensure of HVAC Technicians-In-Training

8.1. Any person desiring to be licensed as an HVAC technician-in-training shall submit a completed application/affidavit requesting licensure to the Commissioner on forms supplied by the Division and pay the applicable license fee as prescribed in section 10 of this rule.

8.2. An HVAC technician-in-training’s license is valid for up to one year unless sooner suspended or revoked by the Commissioner.

8.3. A licensed technician-in-training may renew the license on or before its expiration date by submitting a renewal application on forms supplied by the Division and paying the applicable renewal fee as prescribed in section 10 of this rule. The Commissioner shall provide each licensee with a renewal notice at least 45 days in advance of the license’s expiration date. If the renewal application is received or postmarked more than 15 days after the license’s expiration date, the licensee shall pay a late fee of $25 in addition to the annual renewal fee: Provided: That a license that has been expired for 90 days or more cannot be renewed.

8.4. A duplicate license may be issued upon receipt of a written request to the Commissioner from the licensee. The Commissioner may charge $10 fee for a duplicate license.

W. Va. Code R. § 42-34-9 Supervision Ratios

9.1. On residential HVAC work, a licensed HVAC technician or licensed HVAC residential technician may directly supervise no more than four licensed HVAC technicians-in-training.

9.2. On non-residential HVAC work, a licensed HVAC technician may directly supervise no more than two licensed technicians-in-training and licensed HVAC residential technicians.

W. Va. Code R. § 42-34-10 Licensure Fees

10.1. An initial or renewal applicant for an HVAC technician license shall pay a $75 annual license fee: Provided, That no license fee shall be charged if the applicant is licensed as an HVAC contractor pursuant to W. Va. Code §30-42-1 et seq.

10.2. An initial or renewal applicant for an HVAC residential technician license shall pay a $50 annual license fee.

10.3. An initial or renewal applicant for an HVAC technician-in-training license shall pay a $25 annual license fee.

10.4. Any renewal application that is received or postmarked more than 15 days after the license’s expiration date shall pay a $25 late fee in addition to the annual license fee.

10.5. The Commissioner may charge a $10 fee for a duplicate license upon receipt of a written request from the licensee.

W. Va. Code R. § 42-34-11 Examination Required for HVAC Technicians and HVAC Residential Technicians

11.1. Any person desiring to be licensed as an HVAC technician or HVAC residential technician under the provisions of the Act and this rule shall take the examination required for the desired classification and obtain a minimum score of at least 70%.

11.2. The HVAC technician examination shall be designed to test the applicant’s knowledge of the standards adopted in section 4 of this rule that are applicable to an HVAC technician’s scope of work for the installation, repair, and maintenance of HVAC systems.

11.3. The HVAC residential technician examination shall be designed to test the applicant’s knowledge of the standards adopted in section 4 of this rule that are applicable to an HVAC residential technician’s scope of work for the installation, repair, and maintenance of residential HVAC systems: Provided, That the HVAC residential technician examination shall be developed in consultation with HVAC industry representatives.

11.4. The Commissioner shall provide for written examinations for HVAC technician and HVAC residential technician license applicants and shall establish an examination fee schedule for the administration of examinations. The Commissioner may:

11.4.1. Contract with a private testing agent to conduct examinations, in which case applicants shall pay the examination fee directly to the testing agent; or

11.4.2. Develop examinations and examination procedures and conduct examinations, in which case applicants shall pay the examination fee directly to the Division in advance of the examination.

11.5. An applicant who does not receive a minimum score of 70% on an examination is eligible to retake an examination upon payment of the applicable examination fee.

W. Va. Code R. § 42-34-12 Denial, Suspension, Revocation, and Reinstatement of Licenses; Investigations; Grounds for Disciplinary Action

12.1. The Commissioner may deny, suspend, revoke, or reinstate a license in accordance with the provisions of the Act and this rule. A violation of the Act or this rule is grounds for the denial, suspension, revocation, or refusal to reinstate a license and permits the imposition of disciplinary action.

12.2. Upon receipt of a complaint or upon his or her own inquiry, the Commissioner shall conduct an investigation to determine whether there are grounds for disciplinary action against a licensee. All complaints shall be in writing and include the name, address, and phone number of the complainant. The Commissioner shall provide a copy of the complaint to the licensee.

12.3. Any disciplinary action against a licensee may not be imposed without notice to the licensee and opportunity for a hearing in accordance with the provisions of W. Va. Code §29A-5-1 et seq.

12.3.1. The Commissioner may conduct the hearing or appoint a hearing examiner.

12.3.2. A licensee has a right to attend the hearing in person, to be represented by an attorney at law licensed to practice in West Virginia, or to submit a written response to the Commissioner, and may offer testimony and submit relevant factual information: Provided, That if the licensee receives proper notice of the hearing, the licensee’s failure to attend the hearing does not preclude the imposition of disciplinary action.

12.3.3. If the Commissioner appoints a hearing examiner to conduct the hearing, the hearing examiner shall submit a recommended decision to the Commissioner within 10 days of conclusion of the hearing. The hearing examiner may recommend the imposition of any appropriate disciplinary action permitted by the Act or this rule. The Commissioner shall accept, reject, or modify the hearing examiner’s recommended decision and issue a final order within 10 days of receipt of the recommended decision.

12.3.4. If the Commissioner conducts the hearing and concludes that a violation of the Act or this rule occurred, the Commissioner shall issue a final order within 10 days of the hearing’s conclusion and may impose any disciplinary action permitted by the Act or this rule.

W. Va. Code R. § 42-34-13 Cease and Desist Order; Penalties

13.1. Upon a determination that a person is engaged in HVAC work in this state without a valid license, the Division shall issue a cease and desist order requiring that person to immediately cease all operations in this state. The person can immediately engage in HVAC work upon issuance of a license.

13.2. Any person continuing to engage in HVAC work after the issuance of a cease and desist order is subject to a penalty of not less than $200 nor more than $1,000 as set forth in W. Va. Code §21-16-8.

W. Va. Code R. § 42-34-14 Appeals

Any person adversely affected by an action of the Commissioner may appeal in accordance with the provisions of W. Va. Code §29A-5-1 et seq.

W. Va. Code R. § 42-34-15 Reciprocity; Work Experience

15.1. To the extent that other states license or issue other authorization to practice for HVAC technicians, HVAC residential technicians, or HVAC technicians-in-training, and have requirements equivalent to the Act and this rule, the Commissioner, in his or her discretion, may grant licenses of the same classification without examination to technicians licensed or authorized by other states, as follows:

15.1.1. The applicant has provided satisfactory proof of his or her qualifications, including the applicant’s compliance with all requirements of W. Va. Code §21-17-3(a); and

15.1.2. The applicant has paid the applicable license fee as prescribed in section 10 of this rule.

15.2. To the extent that an applicant is seeking licensure based on work experience, the Commissioner, in his or her discretion, may grant a license with the applicable classification without examination as follows:

15.2.1. The applicant’s work experience is in a state that does not license or issue other authorization to practice for the performance of HVAC work;

15.2.2. The applicant has provided satisfactory proof of his or her qualifications, including the applicant’s compliance with all requirements of W. Va. Code §21-17-4; and

15.2.3. The applicant has paid the applicable license fee as prescribed in section 10 of this rule.

Series 35 Registration of Service Persons and Service Agencies

W. Va. Code R. § 42-35-1 General

1.1. Scope. -- This rule governs the voluntary registration of service persons and service agencies, and the issuance of certificates of registration.

1.2. Authority. -- W. Va. Code §§47-1-3(c), 47-1-8(b).

1.3. Filing Date. -- April 5, 2023.

1.4. Effective Date. -- April 5, 2023.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2028.

W. Va. Code R. § 42-35-2 Application and Enforcement

2.1. Application. This rule applies to the voluntary registration of service persons and service agencies.

2.2. Enforcement. The enforcement of this legislative rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-35-3 Definitions

3.1. “Act” means the Weights and Measures Act, W. Va. Code §47-1-1 et seq.

3.2. “Certificate of registration” means the document issued by the Division of Labor upon receipt of a complete application from a service person or service agency.

3.3. “Complete application” means the document issued by the Division of Labor upon receipt of a complete application from a service person or service agency.

3.4. “Commissioner” means the Commissioner of the Division of Labor and his or her authorized representatives.

3.5. “Days” means business days, unless stated otherwise.

3.6. “Device” means and includes any instrument, apparatus or piece of equipment that is commercially used to weigh or measure goods or products.

3.7. “Division” means the West Virginia Division of Labor.

3.8. “Emergency” means an unforeseen event requiring immediate attention that occurs after the Division’s normal business hours.

3.9. “National Institute of Standards and Technology” or “NIST” is an agency of the United States Department of Commerce located at 100 Bureau Drive, Gaithersburg, MD 20899. Its website is www.nist.gov.

3.10. “Normal business hours” means Monday through Friday between the hours of 8:00 am and 5:00 pm, excluding legal holidays as defined in W. Va. Code §2-2-1 or states of emergency as declared by the President of the United States or the Governor of West Virginia.

3.11. “Notice of Device Rejection” means the Division of Labor Form 301 that is given to a business identifying a specific device that has been found, after testing, to be out of compliance with required specifications or tolerances.

3.12. “Placed in Service Report” means the Division of Labor Form 301B that authorizes the placement in service of a newly installed device or the restoration to service of a rejected device.

3.13. “Request for Assistance Number” or “RFA Number” means the number assigned by the Division of Labor to track the status of a consumer complaint or actions taken by a registered service person or registered service agency.

3.14. “Security seal” means a physical seal or an audit trail counter.

3.15. “Service agency” means a business that installs, services, repairs or reconditions commercial weighing or measuring devices.

3.16. “Service person” means an individual who, for compensation, installs, services, repairs or reconditions commercial weighing or measuring devices.

3.17. “Weights and Measures Section” means the section within the Division of Labor primarily responsible for the weights and measures programs.

W. Va. Code R. § 42-35-4 Incorporation by Reference

4.1. The following sections in the National Institute of Standards and Technology Handbook 44, “Specifications, Tolerances, and Other Technical Requirements for Weighing and Measuring Devices,” 2017 Edition, as adopted by the National Conference in Weights and Measures, are adopted and incorporated herein by reference:

4.1.a. Section 1.10, General Code;

4.1.b. Section 2.20, Scales;

4.1.c. Section 2.21, Belt-Conveyor Scale Systems;

4.1.d. Section 2.22, Automatic Bulk Weighing Systems;

4.1.e. Section 2.24, Automatic Weighing Systems;

4.1.f. Section 3.30, Liquid Measuring Devices;

4.1.g. Section 3.31, Vehicle-Tank Meters;

4.1.h. Section 3.32, Liquified Petroleum Gas and Anhydrous Ammonia Liquid Measuring Devices;

4.1.i. Section 3.37, Mass Flow Meters;

4.1.j. Section 4.45, Dry Measures;

4.1.k. Section 4.46, Berry Baskets and Boxes;

4.1.l. Section 5.55, Timing Devices; and

4.1.m. Appendix D, Definitions.

4.2. The National Institute of Standards and Technology Handbook 112, “Examination Procedure Outlines for Commercial Weighing and Measuring Devices,” 2015 Draft, is adopted and incorporated herein by reference and is available at www.nist.gov.

4.3. The following sections in the National Institute of Standards and Technology Handbook 130, “Uniform Laws and Regulations,” 2017 Edition, as adopted by the National Conference on Weights and Measures, are adopted and incorporated herein by reference:

4.3.a. Section IV. F, Uniform Regulation for National Type Evaluation; and

4.3.b. Section IV. G, Uniform Engine Fuels and Automotive Lubricants Regulation.

W. Va. Code R. § 42-35-5 Voluntary Registration; Privileges and Responsibilities of a Voluntary Registrant; Service Persons Employed by a Registered Service Agency

5.1. A service person or service agency may install, service, repair or recondition a commercial weighing and measuring device without registering with the Division.

5.2. A service person or service agency that is not registered with the Division may not engage in or perform any of the activities set forth in subsection 5.3.

5.3. A service person or service agency that registers with the Division and has been issued a certificate of registration shall have the authority and responsibility to:

5.3.a. Notify the Weights and Measures Section by telephone or email before performing any of the activities set forth in this subsection and obtaining an RFA number;

5.3.b. Comply with the appropriate NIST Handbook 44 specifications, tolerances and other technical requirements and the appropriate NIST Handbook 112 examination procedures when installing, servicing, repairing or reconditioning a commercial weighing or measuring device;

5.3.c. Remove the Division’s official rejection tag or security seal on a device;

5.3.d. Place a new device in service;

5.3.e. Complete a “Placed in Service Report” Form 301B and submit the completed report to the Weights and Measures Section by mail, email or fax within 24 hours of placing a device in service;

5.3.e.1. If work must be performed after normal business hours during a routine service call and the Division has not assigned an RFA number, the registered service person or service agency shall enter the words “AFTER HOURS” in place of the RFA Number on Form 301B;

5.3.e.2. If work must be performed after normal business hours due to an emergency, the registered service person or service agency shall enter the word “EMERGENCY” in place of the RFA Number on Form 301B.

5.3.f. After adjusting or repairing a device that the Division has rejected, complete the “Affirmation of Repairs” section on Form 301 and mail, email or fax the form to the Weights and Measures Section within 24 hours of placing the device in service.

5.4. A service person employed by a registered service agency shall register individually with the Division if he or she performs any of the activities set forth in subsection 5.3

5.5. A registered service person or service agency shall possess and use the equipment and standards necessary to work on the types of categories of weighing and measuring devices specified on the registration application.

5.6. A registered service person or service agency shall have current editions of NIST Handbook 44, NIST Handbook 112, and NIST Handbook 130, and current copies of W. Va. Code §§47-1-1 through 47-1-23, and this rule available at a central location for reference and use.

W. Va. Code R. § 42-35-6 Registration Application; Renewal

6.1. A service person desiring to register with the Division shall submit a written application requesting that he or she be registered, and shall provide all information as the Commissioner may require on a form supplied by the Division, and shall include the documentation required in section 7 of this rule.

6.2. A service agency desiring to register with the Division shall submit a written application requesting that the agency be registered, and shall provide all information as the Commissioner may require on a form supplied by the Division, including the documentation required in section 7 of this rule, and a sample security seal required in section 8 of this rule.

6.3. Upon receipt of a complete application, the Commissioner shall issue a certificate of registration to a service person or service agency, which shall identify the specific weights and measures devices the person or agency is authorized to service.

6.4. A registered service person shall carry his or her certificate of registration at all times when performing any work described in subsection 5.3 of this rule.

6.5. A certificate of registration shall expire one year from the date of issuance.

6.6. The Division shall provide a renewal application to each registered service person or service agency at least 30 days prior to the certificate of registration’s expiration date.

W. Va. Code R. § 42-35-7 Calibration and Verification of Standards and Testing Equipment Used by a Service Person or Service Agency

7.1. A registered service person or service agency shall submit documentation with the initial registration application and renewal application that each field standard or piece of testing equipment used to perform the activities set forth in subsection 5.3 are calibrated and verified as to accuracy according to the following intervals, or whenever recalibrated:

7.1.a. Pharmacy Weight Kits, 5 years;

7.1.b. Cast Iron Construction Weights (“b” ID number), 2 years;

7.1.c. Coal Load Out Weights greater than 2,000 pounds, 5 years;

7.1.d. Liquid Propane Gas Provers, 5 years;

7.1.e. Provers over 200 gallons, 5 years;

7.1.f. All other weighing and measuring devices, 1 year.

7.2. The calibration and verification shall be performed by an accredited or NIST-traceable metrology laboratory.

7.3. A registered service person or service agency shall have a copy of the current calibration documentation for each field standard or piece of testing equipment on hand and available for inspection at all times when performing any of the work in subsection 5.3 of this rule.

W. Va. Code R. § 42-35-8 Security Seals

8.1. Other than an audit trail counter, a service agency or service person shall only use security seals that have been approved by the Weights and Measures Section when performing any of the work in subsection 5.3 of this rule.

8.2. Other than an audit trail counter, a security seal shall clearly identify the service agency by its initials, logo, or design.

W. Va. Code R. § 42-35-9 Failure to Register

A service person or service agency performing any of the activities set forth in subsection 5.3 of this rule without a valid certificate of registration may be subject to civil penalties as set forth in W. Va. Code §47-1-22.

W. Va. Code R. § 42-35-10 Suspension or Revocation of Certificate of Registration

10.1. The Commissioner shall have the authority to suspend or revoke a certificate of registration for good cause, including, but not limited to, the following:

10.1.a. taking unfair advantage of an owner of a device;

10.1.b. failure to have equipment or standards verified and calibrated as required by section 7 of this rule;

10.1.c. failure to use adequate testing equipment as required by subsection 5.5 of this rule;

10.1.d. failure to adjust devices in compliance with the specifications in Handbook 44;

10.1.e. failure to adhere to the examination procedures set forth in Handbook 112;

10.1.f. submission of falsified reports, documents or information to the Commissioner; or

10.1.g. failure to comply with the requirements of the Act or this rule.

10.2. If the Commissioner finds that the suspension or revocation of a certificate of registration is warranted, he or she shall give written notice of the reasons to the registrant, and shall afford the registrant an opportunity to respond.

Series 36 Registration of Weighing and Measuring Devices Used by Businesses in Commercial Transactions

W. Va. Code R. § 42-36-1 General

1.1. Scope. -- This rule governs the registration of weighing and measuring devices used by businesses in commercial transactions, and the issuance of certificates of device registration.

1.2. Authority. -- W. Va. Code §§47-1-3(c) and 47-1-21(d).

1.3. Filing Date. -- April 5, 2023.

1.4. Effective Date. -- April 5, 2023.

1.5. Sunset Date. -- This rule shall terminate and have no further force or effect on August 1, 2028.

W. Va. Code R. § 42-36-2 Application and Enforcement

2.1. Application. This rule applies to all businesses that use weighing and measuring devices in commercial transactions with the public.

2.2. Enforcement. The enforcement of this legislative rule is vested in the West Virginia Division of Labor.

W. Va. Code R. § 42-36-3 Definitions

3.1. “Certificate of device registration” means the document issued by the Division to a business upon receipt of a complete application.

3.2. “Commissioner” means the Commissioner of the Division of Labor and his or her authorized representatives.

3.3. “Complete application” means an application that includes all the information required by the Commissioner on the form supplied by the Division.

3.4. “Device” means any instrument, apparatus or piece of equipment that is used in commercial transactions to weigh or measure goods or products for sale to the public.

3.5. “Division” means the West Virginia Division of Labor.

W. Va. Code R. § 42-36-4 Device Registration Required

A business that uses weighing or measuring devices in commercial transactions for the sale of goods or products to the public shall register each device with the Division prior to placing the device in service and annually thereafter.

W. Va. Code R. § 42-36-5 Device Registration Application; Renewal

5.1. A business that uses weighing or measuring devices in commercial transactions shall submit a written application and provide all information as the Commissioner may require on a form supplied by the Division.

5.2. If a business operates in more than one commercial location, the business shall submit a separate device registration application for each commercial location where weighing or measuring devices are used in commercial transactions.

5.3. Upon receipt of a complete application, the Commissioner shall issue a certificate of device registration for each device registered with the Division.

5.4. A certificate of device registration shall expire one year from the date of issuance.

5.5. The Division shall provide a renewal application to each business that has registered weighing and measuring devices at least 30 days prior to the certificate of device registration’s expiration date.

W. Va. Code R. § 42-36-6 Failure to Register; Expired Certificate of Device Registration

A business that fails to register its weighing and measuring devices that are used in commercial transactions for the sale of goods or products to the public or has an expired certificate of device registration may be subject to civil penalties as set forth in W. Va. Code §47-1-22.

Series 37 Jobs Act Procedures

W. Va. Code R. § 42-37-1 General

1.1. Scope. – This rule establishes procedures for the efficient collection of data from employers and public authorities, procedures used by WorkForce West Virginia in issuing a waiver as prescribed in W. Va. Code §21-1C-4, procedures for the collection of penalties prescribed in W. Va. Code §21-1C-6, procedures for conducting inspections and investigations of public improvement projects for compliance with the Jobs Act, and procedures for the transmittal of data to the Joint Legislative Committee on Government and Finance.

1.2. Authority. -- W. Va. Code §21-1C-5(e).

1.3. Filing Date. -- July 31, 2018.

1.4. Effective Date. -- August 31, 2018.

W. Va. Code R. § 42-37-2 Definitions

2.1. “Act” means the West Virginia Jobs Act, W. Va. Code § 21-1C-1, et seq.

2.2. “Certified payroll document ” means a document that includes the name and address of the employer, identification of the payroll number and the work week ending date, the name of the project and project location, identification of the contract number, the names of employees, their work classification or job title, the physical address of employees’ domicile or primary residence, including the county and state, the day and hours worked, hourly rate of pay or salary, gross wages, federal and state withholding amounts, other authorized deductions, net pay, and the employer’s signed and dated certification stating that the information in the document is correct and complete.

2.3. “Commissioner” means the Commissioner of the West Virginia Division of Labor or his or her authorized representatives.

2.4. “Division” means the West Virginia Division of Labor.

2.5. “Executive Director” means the executive director of WorkForce West Virginia or his or her authorized representatives.

2.6. “From the local labor market” means an employee whose domicile or primary residence is located within the local labor market.

2.7. “Informal presentation of views” means the opportunity for an employer to meet with the Commissioner following the issuance of a notice of violation or a notice of penalty.

2.8. “Job order” means the WorkForce West Virginia Job Order Details Form, ESD-102, that complies with W. Va. Code §21-1C-4(b).

2.9. “Notice of penalty” means the written notification to an employer setting forth the number of violations of the Jobs Act and the amount of the civil penalty to be paid to the Division.

2.10. “Notice of violation” means the written notification to an employer that the Division has determined that the employer is in violation of the Jobs Act, and that the employer will be subject to a civil penalty for continuing Jobs Act violations.

2.11. “Qualified job applicant” means a prospective employee who has a current credential as required by the state of West Virginia to work on a construction project or as required by the contract with the public authority and who is from the local labor market.

2.12. “Violation” means the employer’s failure to meet the local labor market requirements of section 4 of the Act or the employer’s failure to comply with the terms of a waiver issued by WorkForce West Virginia, and which is determined by the number of employees needed on a daily basis to meet the 75% local labor market requirement.

2.13. “Waiver” or “waiver certificate” means the written document issued by WorkForce West Virginia to an employer, after receipt of a properly completed job order, that states that WorkForce is unable to refer the number of qualified applicants requested, that there are no applicants available, and that the employer is permitted to fill a specific number of positions from outside the local labor market who meet specific criteria.

2.14. “WorkForce West Virginia” or “WorkForce”includes all local offices located throughout the state and whose contact information can be found at workforcewv.org/about-us/contact-us.html.

W. Va. Code R. § 42-37-3 Responsibilities of Public Authorities

3.1. A public authority that solicits bids for a public improvement and construction project subject to the Act shall include the following statements and information in the bid package:

3.1.a. Specification of the employer’s responsibilities under the Act;

3.1.b. The employer’s responsibility to submit weekly certified payroll records and waiver certificates, if any, to the public authority; and

3.1.c. Specification of credentials required to work on the construction project, including the employer’s WV Contractor License number and classifications.

3.2. A public authority shall notify the Division as soon as possible of construction projects that are or will be covered by the Act, including the start date of the project, the project location and contract number if available.

3.3. A public authority shall notify the Division at least 10 days in advance of all pre-bid meetings. This notification shall include the dates, times and locations.

3.4. When the project begins, the public authority shall submit certified payroll records and waiver certificates, if any, to the Division.

3.5. A public authority shall monitor the employer’s compliance with the construction project contract, and shall promptly notify the Division of Labor, WorkForce, and the West Virginia Tax Department or other state agency, if applicable, of an employer’s possible violations, including actions taken by the public authority to require the employer’s compliance with its contractual obligations.

W. Va. Code R. § 42-37-4 Responsibilities of Employers; Calculation of the 75% Local Labor Market Requirement; Procedures for Submitting a Job Order to WorkForce; Issuance of a Waiver by WorkForce

4.1. An employer shall employ at least 75% of employees from the local labor market, with 2 employees permitted from outside the local labor market.

4.2. An example of how to calculate the number of employees needed to meet the 75% local labor market requirement when there are no waivers issued by WorkForce West Virginia is as follows:

4.2.a. The employer has 10 employees working on the project, excluding salaried supervisory personnel;

4.2.b. 10 employees minus 2 employees permissible from outside the local labor market = 8 employees subject to the 75% requirement calculation;

4.2.c. 8 employees x .75 = 6 employees that must be from the local labor market to comply with the Act.

4.3. An example of how to calculate the number of employees needed to meet the 75% local labor market requirement when there are waivers issued by WorkForce West Virginia is as follows:

4.3.a. The employer has 12 employees working on the project, excluding salaried supervisory personnel;

4.3.b. WorkForce has issued 2 waivers: 12 employees minus 2 employees with waivers = 10 employees;

4.3.c. 10 employees minus 2 employees permissible from outside the local labor market = 8 employees subject to the 75% requirement calculation;

4.3.d. 8 employees x .75 = 6 employees that must be from the local labor market to comply with the Act.

4.4. If an employer is unable to hire at least 75% of employees from the local labor market, the employer must submit a properly completed Job Order to the nearest WorkForce office as soon as practical, but prior to starting work on the project to allow WorkForce to have 3 business days to respond to the Job Order and for the employer to interview prospective employees.

4.5. If WorkForce is unable to refer qualified job applicants to the employer within 3 business days after receipt of a properly completed Job Order, WorkForce shall issue a written waiver to the employer.

4.6. The waiver shall include the following information and statements:

4.6.a. The employer name and address;

4.6.b. The name of the employer’s contact person and contact information;

4.6.c. The maximum number of employees that the employer may hire from outside the local labor market;

4.6.d. The specific terms and conditions, including credentials, that employees from outside the local labor market must have;

4.6.e. A statement that the waiver is not transferable and is only valid for an identified project at a specific location;

4.6.f. Effective dates of the waiver;

4.6.g. A statement that the waiver can be revoked or revised at any time if the employer fails to comply with the terms and conditions of the waiver, or if the waiver was issued due to incorrect or false or fraudulent information provided by the employer;

4.6.h. The signature of the Executive Director; and

4.6.i. The notarized signature of the employer, certifying that the employer fully understands the terms and conditions of the waiver and will at all times comply with the waiver.

4.7. WorkForce shall provide a copy of the waiver to the employer, to the public authority responsible for the public improvement project and to the Division.

W. Va. Code R. § 42-37-5 Inspection and Investigation by the Division

5.1. The Commissioner may conduct routine inspections of any public improvement construction project to determine compliance with the Act.

5.2. A public authority and all employers engaged in the construction of a public improvement shall make employee and payroll records available to the Commissioner for inspection and investigation as he or she deems necessary and appropriate to determine compliance with the Act.

5.3. Upon receipt a written complaint alleging violations of the Act, the Commissioner shall investigate to determine the validity of the complaint.

W. Va. Code R. § 42-37-6 Notice to Employer of Violation of the Act; Notice to Employer of Penalty; Payment of Penalty; Informal Presentation of Views

6.1. If, after inspection or investigation, the Commissioner determines that an employer has violated the Act and is no longer working on the public improvement project, he or she shall provide a written notice of penalty to the employer and the public authority, setting forth the number of violations, and the amount of the penalty being imposed.

6.1.a. The employer shall pay the penalty within 10 days of receipt of the notice of penalty.

6.1.b. If the employer fails to pay the penalty within 10 days of receipt of the notice of penalty, the Commissioner shall direct the public authority to withhold final payment to the employer until the employer has paid the penalty or the matter has been otherwise resolved.

6.2. If, after inspection or investigation, the Commissioner determines that an employer has violated the Act and is still working on the public improvement project or other Jobs Act projects, he or she shall provide a written notice of violation to the employer and the public authority, setting forth the number of violations and the amount of the civil penalty that will be imposed if the employer continues to violate the Act.

6.3. If the Commissioner determines that an employer is continuing to violate the Act after receipt of the notice of violation, he or she shall provide a written notice of penalty to the employer and the public authority. The employer shall be subject to a civil penalty of $250 for each employee less than the required 75% threshold per day.

6.3.a. The employer shall pay the penalty within 10 days of receipt of the notice of penalty.

6.3.b. If the employer fails to pay the penalty within 10 days of receipt of the notice of penalty, the Commissioner shall direct the public authority to withhold final payment to the employer until the employer has paid the penalty or the matter has been otherwise resolved.

6.3.c. After 14 calendar days from receipt of the notice of violation, if the employer continues to violate the Act, the employer shall be subject to a civil penalty of $500 for each employee less than the required 75% threshold per day.

6.4. Examples of the civil penalty calculation: an employer needs to have 6 employees from the local labor market to meet the required 75% threshold.

Day 1: the employer has 5 employees from the local labor market = 1 violation.

Day 2: the employer has 4 employees from the local labor market = 2 violations.

Day 3: the employer has 6 employees from the local labor market = 0 violations.

Day 4: the employer has 4 employees from the local labor market = 2 violations.

Day 5: the employer has 6 employees from the local labor market = 0 violations.

Day 6: the employer has 5 employees from the local labor market = 1 violation.

Total violations for the work week: 6 violations x $250 = a civil penalty of $1,500.

Total violations for the work week: 6 violations x $500 = a civil penalty of $3,000.

6.5. Within 10 days of receipt of a notice of violation or notice of penalty, an employer may submit a written request to the Commissioner for an informal presentation of views to discuss the violations or the penalty.

W. Va. Code R. § 42-37-7 Annual Report to the Joint Legislative Committee on Government and Finance

The Division shall compile the following information, and submit it annually to the Joint Committee on Government and Finance by October 15th:

7.1. The name of the public authority;

7.2. The name of the project, the project’s start and completion dates, and the project location;

7.3. The number of the Division’s inspections or investigations;

7.4. The number of qualified applicants referred to the employer by WorkForce WV and the number of employees the employer reported hired to WorkForce;

7.5. The number of waiver certificates issued by WorkForce WV;

7.6. Whether the employer’s payroll records complied with the requirements of the Act; and

7.7. The number of violations and the amount of penalties collected.

APPENDIX

LIST OF LOCAL LABOR MARKET COUNTIES AND AREAS

WITHIN 50 MILES OF THE WEST VIRGINIA BORDER

DISTRICT OF COLUMBIA

KENTUCKY

Bath Boyd Breathitt Carter Elliott Fleming Floyd Greenup Johnson Knott Lawrence Letcher Lewis Magoffin Martin Menifee Morgan Perry Pike Rowan Wolfe MARYLAND Allegany Anne Arundel Baltimore Carroll Charles Frederick Garrett Howard Montgomery Prince George’s Washington NORTH CAROLINA Alleghany Ashe Surry OHIO Adams Athens Belmont Carroll Columbiana Coshocton Fairfield Gallia Guernsey Harrison Hocking Jackson Jefferson Lawrence Mahoning Meigs Monroe Morgan Muskingum Noble Perry Pickaway Pike Portage Ross Scioto Stark Summit Trumbull Tuscarawas Vinton Washington PENNSYLVANIA Adams Allegheny Armstrong Beaver Bedford PENNSYLVANIA, continued Blair Butler Cambria Cumberland Fayette Franklin Fulton Greene Huntingdon Indiana Juniata Lawrence Mercer Perry Somerset Venango Washington Westmoreland York TENNESSEE Johnson Sullivan VIRGINIA Albemarle Alleghany Amherst Augusta Bath Bedford Bland Botetourt Buchanan Carroll Clarke Craig Culpeper Dickenson Fairfax Fauquier Floyd Franklin Frederick Giles VIRGINIA, continued Grayson Greene Henry Highland Lee Loudoun Madison Montgomery Nelson Orange Page Patrick Prince William Pulaski Rappahannock Roanoke Rockbridge Rockingham Russell Scott Shenandoah Smyth Stafford Tazewell Warren Washington Wise Wythe WEST VIRGINIA All counties