PROPOSED RULEMAKING

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Crane Operators

[50 Pa.B. 5850]
[Saturday, October 24, 2020]

 The Commissioner of Professional and Occupational Affairs (Commissioner) proposes to add § 43b.28 (relating to schedule of civil penalties—crane operators) to read as set forth in Annex A.

Effective Date

 This proposed rulemaking will be effective upon publication of the final-form rulemaking in the Pennsylvania Bulletin.

Statutory Authority

 Section 3108(a)(1) of 63 Pa.C.S. (relating to civil penalties), authorizes the Commissioner, after consultation with licensing boards within the Bureau of Professional and Occupational Affairs (Bureau), to promulgate a schedule of civil penalties for violations of the respective acts or regulations of the licensing boards.

Background and Need for the Rulemaking

 Section 3108(a)(1) authorizes agents of the Bureau to issue citations and impose civil penalties under schedules adopted by the Commissioner in consultation with the Bureau's boards and commissions. Section 3108(a)(1) citations streamline the disciplinary process by eliminating the need for formal orders to show cause, answers, adjudication and orders, and consent agreements. At the same time, licensees who receive a citation under section 3108(a)(1) retain their due process right to a hearing prior to the imposition of judgment. The use of section 3108(a)(1) citations has increased steadily since 1996, when the program was first implemented, and has become an important part of the Bureau's enforcement efforts. Section 3108(a)(1), authorizes the Board, as a licensing board within the Bureau, to levy a civil penalty of not more than $10,000 on any licensee or unlicensed person who violates any provision of the act or Board regulations. However, section 3108(a)(1)(iii) limits the civil penalty levied by citation to no more than $1,000 per violation.

 Section 702(b) of the Crane Operator Licensure Act (act) (63 P.S. § 2400.702(b)) authorizes the State Board of Crane Operators (Board) to levy a civil penalty of up to $1,000 on a crane operator who violates a provision of the act, on an individual who operates a crane in violation of the act, or on an individual who holds himself out as a crane operator without being properly licensed. Section 703(a)(3) of the act (63 P.S. § 2400.703(a)(3)) further authorizes the Board to suspend or revoke the license of a crane operator who has willfully or repeatedly violated any of the provisions of the act or the Board's regulations.

 This is the first time that the Board will participate in the citation program under section 3108(a)(1). The Commissioner and the Board believe that it is necessary to implement the civil penalties contained in this proposed rulemaking to act as a deterrent for violations of the statutory and regulatory requirements listed in the schedule of civil penalties and to streamline the disciplinary process to be more efficient and cost effective.

Description of Proposed Amendments

 The Commissioner, in consultation with the Board, proposes to add § 43b.28 to establish a schedule of civil penalties for five enumerated offenses, including: operating a crane without a license, employing an unlicensed individual to operate a crane, holding oneself out as a crane operator or using the title ''licensed crane operator'' when not licensed to do so, practicing on a lapsed or expired license and failing to notify the Board in writing within 10 days of criminal proceedings in a court case against a licensed crane operator.

 Operating a crane without a license is a serious infraction of both section 501(a) of the act (63 P.S. § 2400.501(a)) and the Board's regulation at § 6.41(a) (relating to unlicensed crane operation). An unlicensed individual who has not been properly trained to operate a crane could cause extensive damage to property as well as cause bodily harm to individuals at a construction site. Therefore, the Commissioner, in consultation with the Board, would propose a civil penalty of $750 for a first offense of operating a crane without a license. The Board determined that the penalty for a second offense should be higher than the $1,000 maximum which may be imposed by citation. Therefore, subsequent offenses would require formal disciplinary action.

 Just as operating a crane without a license is a serious matter, so is employing, allowing, directing, retaining or hiring an unlicensed individual or independent contractor to operate a crane, which is a violation of section 501(b) of the act and the Board's regulation at § 6.43(a) (relating to aiding and abetting unlicensed crane operation). Therefore, the proposed civil penalty for a first offense would be $1,000, the maximum civil penalty that may be imposed by citation. Subsequent offenses would result in formal disciplinary action.

 Additionally, persons who are not licensed by the Board may not hold themselves out as being able to operate a crane or use the title ''licensed crane operator,'' as provided in section 501(e) of the act and the Board's regulation at § 6.41(a). To do so would trigger a civil penalty of $500 for the first offense, $750 for the second offense and formal action for subsequent offenses.

 Operating a crane on a lapsed or expired (unregistered) license is a violation of the Board's regulation at § 6.31(a) (relating to duration of license), which requires all licensed crane operators to register biennially to retain the right to operate a crane. This proposal would progressively increase the civil penalty for continuing violations based on the length of time that the licensee continues to operate cranes while the license has lapsed. For a first offense, the Commissioner would propose a civil penalty of $50 per month, not to exceed $1,000, the maximum that may be imposed by citation. Lapses of over 24 months (more than one biennial period) would be met with formal action. For a second offense of up to 12 months, the proposed civil penalty would be $100 a month, not to exceed $1,000. Second offenses for a license lapsed over 12 months would result in formal action. Likewise, third or subsequent offenses would require formal action.

 Finally, the Commissioner, in consultation with the Board, proposes a civil penalty of $750 for a first offense of failing to notify the Board in writing within 10 days of criminal proceedings in a court case against the crane operator, which is a violation of the Board's regulation at § 6.42(f) (relating to impaired operation of a crane and reportable conditions, incidents or events). Second and subsequent offenses would require formal action.

Fiscal Impact and Paperwork Requirements

 This proposed rulemaking would have no adverse fiscal impact on the Commonwealth or its political subdivisions, and would reduce the paperwork requirements of both the Commonwealth and the regulated community by eliminating the need for orders to show cause, answers, consent agreements and adjudication and orders for those violations subject to the citation process under section 3108(a)(1). The only fiscal impact would be borne by those persons who violate the act or regulations of the Board and are subject to the civil penalties proposed by the new schedule. However, this impact could be avoided by simply complying with the act and regulations of the Board. Additionally, the impact would be incurred whether the Commissioner adopts this schedule of civil penalties or not, as currently all violations require formal disciplinary action.

Sunset Date

 The Commissioner and the Board continuously monitor the effectiveness of their regulations. Therefore, no sunset date has been assigned.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P.S. § 745.5(a)), on October 8, 2020, the Commissioner submitted a copy of this proposed rulemaking and a copy of a Regulatory Analysis Form to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Consumer Protection and Professional Licensure Committee and the House Professional Licensure Committee. A copy of this material is available to the public upon request.

 Under section 5(g) of the Regulatory Review Act, IRRC may convey comments, recommendations or objections to the proposed rulemaking within 30 days of the close of the public comment period. The comments, recommendations or objections shall specify the regulatory review criteria which have not been met. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the rulemaking, by the Commissioner, the General Assembly and the Governor of comments, recommendations or objections raised.

Public Comment

 Interested persons are invited to submit written comments, recommendations or objections regarding this proposed rulemaking to the Regulatory Counsel, Department of State, P.O. Box 69523, Harrisburg, PA 17106-9523 or by e-mail at RA-STRegulatoryCounsel@pa.gov, within 30 days following publication of this proposed rulemaking in the Pennsylvania Bulletin. Reference No. 16A-7103 (Schedule of civil penalties—crane operators), when submitting comments.

K. KALONJI JOHNSON, 
Commissioner

 Fiscal Note: 16A-7103. No fiscal impact; (8) recommends adoption.

Annex A

TITLE 49. PROFESSIONAL AND VOCATIONAL STANDARDS

PART I. DEPARTMENT OF STATE

Subpart A. PROFESSIONAL AND OCCUPATIONAL AFFAIRS

CHAPTER 43b. COMMISSIONER OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

Subchapter A. SCHEDULE OF CIVIL PENALTIES, GUIDELINES FOR IMPOSITION OF CIVIL PENALTIES AND PROCEDURES FOR APPEAL

 (Editor's Note: The following section is proposed to be added and printed in regular type to enhance readability.)

§ 43b.28. Schedule of civil penalties—crane operators.

STATE BOARD OF CRANE OPERATORS

Violation   under 63 P.S.	Violation   under 49 Pa. Code	Title/Description	Penalties
Section 2400.501(a)	§ 6.41(a)	Operating a crane without a license	1st Offense—$750 Subsequent offenses—formal action
Section 2400.501(b)	§ 6.43(a)	Employing, allowing, directing, retaining or hiring an unlicensed individual or independent contractor to operate a crane	1st Offense—$1,000 Subsequent offenses—formal action
Section 2400.501(e)	§ 6.41(a)	Holding oneself out as being able to operate a crane or using the title ''licensed crane operator'' or the abbreviation ''L.C.O.'' without a license	1st Offense—$500 2nd Offense—$750 Subsequent offenses—formal action
	§ 6.31(a)	Operating a crane on a lapse or expired (unregistered) license	1st Offense—Up to 24 months, $50 per month not to exceed $1,000; over 24 months—formal action 2nd Offense—Up to 12 months, $100 per month not to exceed $1,000; over 12 months—formal action Subsequent offenses—formal action
	§ 6.42(f)	Failing to notify the Board in writing within 10 days of the institution of criminal proceedings in a court case against the crane operator	1st Offense—$750 Subsequent offenses—formal action

[Pa.B. Doc. No. 20-1452. Filed for public inspection October 23, 2020, 9:00 a.m.]

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