RULES AND REGULATIONS

Title 49—PROFESSIONAL AND VOCATIONAL STANDARDS

BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS

[ 49 PA. CODE CH. 43b ]

Schedule of Civil Penalties—Crane Operators

[51 Pa.B. 7465]
[Saturday, December 4, 2021]

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

Effective Date

 The amendments will be effective upon publication of this 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 Purpose

 Section 3108(a)(1) of 63 Pa.C.S. 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. These 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 retain their due process right to a hearing prior to the imposition of judgment. The use of 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(b)(4) of 63 Pa.C.S. 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 Crane Operator Licensure Act (act) (63 P.S. §§ 2400.101—2400.2102) or Board regulations. However, 63 Pa.C.S. § 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 (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 63 Pa.C.S. § 3108(a)(1). The Commissioner and the Board believe that it is necessary to implement the civil penalties contained in this final-form 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.

 The proposed rulemaking was published at 50 Pa.B. 5850 (October 24, 2020). The Commissioner entertained public comment for a period of 30 days, during which time the Commissioner did not receive any public comments. Following the close of the public comment period, the Commissioner received comments from the Independent Regulatory Review Commission (IRRC). The Commissioner received no comments from the House Professional Licensure Committee (HPLC) or the Senate Consumer Protections and Licensure Committee (SCP/PLC). The following represents a summary of the comments received and the Commissioner's response.

Comments from IRRC

 IRRC first questioned whether the Bureau and the Board considered qualifying the use of this civil penalty section for the offenses of operating a crane without a license or employing an unlicensed individual to operate a crane in those instances where the violation for either of these two offenses resulted in bodily harm or substantial property damage, and whether a civil penalty should even be available for consideration in those situations. IRRC further asked for an explanation of their rationale and how violations that result in bodily harm or extensive property damage will be treated, and to describe how the approach protects the public health and safety and deters violations of statutory and regulatory requirements.

 The Commissioner and the Board, in response to the questions raised by IRRC, have reviewed this civil penalty section, and agree that these sections should be qualified and limited to those violations that do not involve any bodily injury or property damage. To prevent any confusion or possible subjective application in the determination as to what level of bodily injury or property damage would disqualify the ability to issue a citation for this violation, the Commissioner and the Board have decided to limit the use of a citation for a violation of these offenses to those instances where no bodily injury or property damage occur in conjunction with a violation of these offenses. The Commissioner and the Board believe this approach best protects the public health and safety by requiring that any violation of these sections involving bodily injury or property damage to be subject to formal prosecution. As such, these sections are revised accordingly.

 IRRC noted that a license to operate a crane is valid only in conjunction with certification if the licensee maintains a current certification in the specialty for which the crane operator is certified. Depending on the specialty or the accrediting organization, certifications are valid for 2 years, 3 years or 5 years. As such, there may be times when a crane operator's certification will expire during the biennial licensing renewal period. IRRC further noted that section 502(b) of the act (63 P.S. § 2400.502(b)) and the Board's regulations in § 6.32(a)(2) (relating to renewal of license) require crane operators to have a current valid certification at all times, and that the Board requires licensees to submit evidence of certification renewal before their current certification expires and that a licensee who has failed to maintain certification or submit evidence of re-certification is subject to disciplinary action. Given these statutory and regulatory provisions, IRRC asked whether the Board considered and rejected establishing a civil penalty for failure to maintain certification or provide evidence of certification renewal, and if so, to explain the reason and rationale for excluding these offenses from the schedule of civil penalties.

 The Commissioner and the Board did not initially consider the inclusion of this violation in the schedule of civil penalties subject to the issuance of a citation. Based upon IRRC's comments and questions, the Board has now reconsidered its position and believes the inclusion of this violation in the schedule of civil penalties would be in the best interest of public health and safety, as it would quickly sanction a crane operator who has failed to maintain the certification evidencing the crane operator's skills and ability to operate a crane safely. As such, this violation is added to the schedule of civil penalties. The schedule for failing to maintain certification, or to submit documentation evidencing renewal of certification as required, will be subject to a $1,000 civil penalty for a first offense. Subsequent offenses will be subject to formal action.

 Finally, IRRC noted that the proposed schedule distinguishes between ''operating a crane without a license'' and ''operating a crane on a lapsed or expired license.'' For clarity, IRRC recommend the Title/Description of the offense for ''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'' be revised to cover an individual with a lapsed or expired license who holds themselves out as authorized to operate a crane. The Commissioner and Board agree with this recommended revision and make the appropriate revision to this final-form rulemaking.

Fiscal Impact and Paperwork Requirements

 This final-form rulemaking will have no adverse fiscal impact on the Commonwealth or its political subdivisions, and will 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 63 Pa.C.S. § 3108(a)(1) citation process. 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 continually monitor the cost 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 the proposed rulemaking, published at 50 Pa.B. 5850, to IRRC and the Chairpersons of the HPLC and the SCP/PLC for review and comment.

 Under section 5(c) of the Regulatory Review Act (71 P.S. § 745.5(c)), the Commissioner shall submit to IRRC, the HPLC and the SCP/PLC copies of comments received during the public comment period, as well as other documents when requested. No public comments were received; however, in preparing the final-form regulation, the Commissioner and the Board considered comments received from IRRC. On April 26, 2021, the Commissioner delivered the final-form rulemaking to IRRC and the Committees. Under section 5.1(j.2) of the Regulatory Review Act (71 P.S. § 745.5a(j.2)), the HPLC and the SCP/PLC deemed the regulation approved on June 16, 2021. IRRC met on June 17, 2021, at which time the regulation was disapproved by a vote of 4-1. IRRC issued its disapproval order on July 8, 2021.

 Under section 7(c) of the Regulatory Review Act (71 P.S. § 745.7(c)), on August 17, 2021, the Board delivered to IRRC, the HPLC and the SCP/PLC a revised final-form rulemaking and report in response to IRRC's disapproval order. Under section 7(c.1) of the Regulatory Review Act (71 P.S. § 745.7(c.1)), IRRC met on September 23, 2021, and approved the final-form rulemaking. Under section 7.1(d) of the Regulatory Review Act (71 P.S. § 745.7(d)), the final-form rulemaking was deemed approved by the committees on August 31, 2021.

Findings

 The Commissioner finds that:

 (1) Public notice of proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P.L. 769, No. 240), referred to as the Commonwealth Documents Law and regulations promulgated thereunder, 1 Pa. Code §§ 7.1 and 7.2 (relating to notice of proposed rulemaking required; and adoption of regulations).

 (2) A public comment period was provided as required by law.

 (3) This final-form rulemaking does not include any amendments that would enlarge the scope of proposed rulemaking published at 50 Pa.B. 5850.

 (4) This final-form rulemaking adopted by this order is necessary and appropriate for the administration of 63 Pa.C.S. § 3108 and the act.

Order

 The Commissioner, acting under the authority of 63 Pa.C.S. § 3108, orders that:

 (a) The regulations of the Commissioner at 49 Pa. Code are amended by adding § 43b.28 to read as set forth in Annex A.

 (b) The Commissioner shall submit this final-form rulemaking to the Office of Attorney General and the Office of General Counsel for approval as required by law.

 (c) The Commissioner shall submit this final-form rulemaking to IRRC, the HPLC and the SCP/PLC as required by law.

 (d) The Commissioner shall certify this final-form rulemaking and deposit them with the Legislative Reference Bureau as required by law.

 (e) This final-form rulemaking shall take effect upon publication in the Pennsylvania Bulletin.

K. KALONJI JOHNSON, 
Commissioner

 (Editor's Note: See 51 Pa.B. 6494 (October 9, 2021) for IRRC's approval order.)

 Fiscal Note: Fiscal Note 16A-7103 remains valid for the final adoption of the subject regulation.

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

§ 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, provided that no bodily injury or property damage was involved.	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, provided that no bodily injury or property damage was involved.	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 or after a crane operator's license has lapsed or expired.	1st Offense—$500 2nd Offense—$750 Subsequent offenses—formal action
	§ 6.31(a)	Operating a crane on a lapsed or expired (unregistered) license, provided that no bodily injury or property damage was involved.	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
Section 2400.502(b)	§ 6.32(a)(2)	Failing to maintain certification or to submit evidence of renewal of certification before the expiration date of certification.	1st offense—$1,000 Subsequent offenses—formal action

[Pa.B. Doc. No. 21-1994. Filed for public inspection December 3, 2021, 9:00 a.m.]

---

No part of the information on this site may be reproduced for profit or sold for profit.

This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.

---