PROPOSED RULEMAKING
DEPARTMENT OF
LABOR AND INDUSTRY
[34 PA. CODE CH. 401]
Uniform Construction Code Training and Certification for Code Administrators
[31 Pa.B. 3543] Under section 701 of the act of November 10, 1999 (P. L. 491, No. 45) (Act 45), the Department of Labor and Industry (Department) is submitting proposed rulemaking for training and certification of code administrators.
The Department proposes the regulations for the training and certification of code administrators under the Pennsylvania Construction Code Act (act) (35 P. S. §§ 7210.101--7210.1103) as set forth in Annex A. This notice of proposed rulemaking includes the Department's interpretation of the provisions of Act 45 adopting the 1999 BOCA National Building Code, Fourteenth Edition or its successor codes as the Uniform Construction Code (UCC).
Statutory Authority
This proposed rulemaking is issued under the authority provided in section 701(a) of the act (35 P. S. § 7210.701(a)), which provides that the Department, in consultation with the advisory board, Building Officials and Code Administrators International, Inc. (BOCA), National Conference of State Building Code Standards (NCSBCS) and other interested parties, adopt by rulemaking a program of required training and certification for all categories of code administrators.
Section 701(e)(1) of the act also provides that the Department determine the time period in which current code administrators shall meet the training and certification requirements of Act 45. The Department will adopt and implement a continuing education program in accordance with section 701(f) of the act. The Department is empowered to establish a procedure providing for the notification and hearing process for decertification for just cause under section 701(h) of the act. Authority to adopt and promulgate fees for educational programs, testing and certification of code administrators is contained in section 701(j) of the act. The Department will set minimum levels of liability insurance applicable to third-party agencies under section 701(k) of the act.
Background
The purpose of the act is to establish a Statewide building code, Uniform Construction Code (UCC). This provides uniform standards for builders, and greater protection for building owners and occupants, and the general public. Municipalities in this Commonwealth will utilize the UCC to assure that this Commonwealth has a uniform, modern construction code that will insure safety, health and sanitary construction, promote state-of-the art techniques and encourage cost-effectiveness. An important facet of Act 45 is ''to assure that officials charged with the administration and enforcement of the technical provisions of [the] act are adequately trained and supervised.'' See section 102(b)(6) of the act (35 P. S. § 7210.102(b)(6)). These officials will be certified in categories appropriate to the work performed. The Department will regulate these officials as code administrators and mandate continuing education.
The UCC takes effect 90 days after the publication of final-form regulations by the Department adopting the required National standards for buildings and energy conservation, and setting forth the administrative provisions under the code. Under section 701 of the act, the Department is required to adopt a program of training and certification for code administrators. Code administrators are municipal code officials, construction code officials, third-party agencies or the Department. Code administrators are generally responsible for plan review of construction documents, inspection of construction or administration and enforcement of codes and regulations under the act or related acts.
Section 701 of the act took effect on November 10, 1999. Since the passage of the act, the Department has received numerous requests for guidance on training and certification from current code administrators, municipalities and third-party agencies. Municipalities, current code administrators and third-party agencies need ample time to plan and prepare for the effective date of the UCC and to complete certification. Accordingly, the Department determined it was necessary to promulgate these regulations on training and certification before the regulations establishing the UCC.
Compliance with Executive Order 1996-1, Regulatory Review and Promulgation
Since the passage of the act, extensive outreach and communication efforts have been undertaken to gain input from the various affected parties including representatives from BOCA, three regional Pennsylvania Chapters of BOCA, Pennsylvania Code Training Consortium (CTC), Pennsylvania Housing Research Center (PHRC), Building Codes Assistance Project (BCAP) and the United States Department of Energy (DOE). Department representatives met almost weekly with interested persons to answer questions and solicit comment. A summary of some of these activities is as follows. The Department attended the CTC's inaugural meeting in October 1999 and has attended its subsequent quarterly meetings. On December 16, 1999, the Department held a general stakeholders' meeting to discuss the act and identify stakeholders. On June 16, 2000, the Department posted a draft of this training and certification regulations on its website (www.dli.state.pa.us) and solicited comments from stakeholders. The Department has received a DOE training grant for building codes and is in the process of contracting with PHRC to implement training programs. The Department received, reviewed and answered numerous emails and faxes from stakeholders, construction code officials, trade associations, and local governments concerning certification and other aspects of the UCC. On July 19, 2000, the Department held a stakeholders' meeting on its draft training and certification regulations. On July 26, 2000, the Department posted some proposed changes to its draft regulations on its internet site. On October 18, 2000, Department representatives met with members of Pennsylvania Building Officials Conference (PennBoc) at their annual conference to discuss training and certification requirements. The rulemaking was also discussed with the Department's Accessibility Advisory Board.
Purpose
As stated in section 102(b) of the act, the purpose of the act is to insure safe, uniform, cost-efficient, modern construction standards throughout this Commonwealth by adopting a Statewide building code governing the construction, alteration, repair and new occupancy of all structures in this Commonwealth. Officials charged with the administration and enforcement of the technical provisions of the act have to be adequately trained and supervised. This proposed rulemaking provides a certification program, based upon consultation with BOCA, and establishes minimum continuing education requirements for code administrators for the specific work that is to be performed. It also contains procedures for decertification of code administrators for just cause. It also provides the insurance requirements for third-party agencies that may be contracted with to act as a construction code official for local governments and the Department. The regulations also set the time period for current code administrators to meet the training and certification requirements of the act and the registration of current code officials until these requirements are met. The regulations set forth fees for initial certification and registration, certification renewal, third-party agency certification and renewal and photo identification replacement.
Since the passage of the act, interested parties have requested information concerning the training and certification standards, to prepare themselves for enforcement responsibilities under the UCC.
Summary of Proposed Rulemaking
Section 401.1. Definitions.
This section provides definitions for the terms provided in the regulations. The section defines an ''accredited academic institution'' for continuing education completion.
The section:
(1) Provides the statutory citation for the act.
(2) Identifies and provides the addresses for the Automatic Lift Institute (ALI) and the American Society of Mechanical Engineers (ASME).
(3) Contains the definition of apparatus such as ''auto lift,'' ''belt manlift,'' ''conveyor,'' ''elevator'' and ''passenger ropeway.''
(4) Contains definitions for ''code administrator'' and ''construction code official.'' A ''current code official'' is defined as an individual who engaged in the activities of ''code administrator'' prior to the effective date of this chapter.
(5) Provides a definition of ''Uniform Construction Code'' as provided in section 301 of the act (35 P. S. § 7210.301).
(6) Contains the definition of ''Department'' as being the Department of Labor and Industry'' and ''Secretary'' as being the Secretary of the Department.
Section 401.2. Fees.
This section establishes fees for certification, registration, renewals, and photo identification card replacements. This section also establishes that the fees are charged for each application and not for each certification category. Fees are nonrefundable. The following fees are listed: $50 for initial certification and registration; $50 for certification renewal; $250 for third-party agency certification and renewal; and $10 for photo identification replacement.
Section 401.3. Certification required.
This section requires the certification of all persons performing plan review of construction documents, inspection of construction or administration of the UCC. Certification is also required for persons approving plans or performing inspections relating to accessibility requirements. The Department may refuse certification for just cause if written notification is provided. Certification will be valid for 3 years.
Section 401.4. Application and identification.
This section establishes the requirements for certification and the Department's issuance of photo identification cards for all certified code administrators. Applicants for certification will have to pass a certification examination or have successfully passed an examination within 6 years of the effective date of this chapter, submit an application and pay the required fee. The Department will issue a photo identification card to an applicant who meets the certification requirements. The Department must be notified in writing if the photo identification card is lost or destroyed and a replacement fee will be charged.
Section 401.5. Waivers.
This section details the Department's requirements for the waiver of testing requirements for certain code administrators. The Department may waive the testing requirements if the applicant passed a substantially similar certification examination within 6 years. If an applicant passed a substantially similar examination during a period which exceeds 6 years, the Department may grant a waiver if the applicant submits evidence of continued employment in related fields, current certification from a model code organization, or substantial education in related fields
Applicants for waiver will be required to submit an application and pay the certification fee.
Section 401.6. Certification categories and testing.
This section provides that the Department will issue certifications for specific categories to applicants who receive a passing grade on all of the examinations for each required category. This section also lists all of the categories and the examinations required for each category. These categories include: 1 and 2 family dwellings building inspector; 1 and 2 family dwellings electrical inspector; 1 and 2 family dwellings mechanical inspector; 1 and 2 family dwellings plumbing inspector; 1 and 2 family dwellings energy inspector; building inspector; fire prevention inspector; electrical inspector; mechanical inspector; plumbing inspector; energy inspector; accessibility specialist; building plans examiner; electrical plans examiner; mechanical plans examiner; plumbing plans examiner; energy plans examiner; building code official; elevator inspector; conveying systems inspector; belt manlift inspector; auto lift inspector; and passenger ropeway inspector.
Section 401.7. Certification category specifications.
This section describes each certification category and lists most of the duties performed by code administrators certified in each category comparable to the testing certification categories.
Section 401.8. Certification renewal.
This section requires certification renewal every 3 years and establishes the requirements for an application for renewal. These requirements include the completion of an application, submission of acceptable proof of completion of continuing education and payment of a renewal fee. An applicant for renewal shall obtain a photo identification card in accordance with § 401.4. The Department will not renew a certificate that remained lapsed for more than 1 year unless the applicant passes the required examinations under § 401.6. Further, this section contains the requirements for acceptable proof of completion of continuing education which shall contain the name and address of the training provider, the dates attended, the credit hours claimed, the title of the course, and the subject matter of the course. The Department may not renew a certification during a period of decertification.
Section 401.9. Continuing education.
This section requires that an applicant for certification renewal complete 15-credit hours of continuing education for renewal of each certification up to the maximum of 45 credit hours for each individual. This section requires that an applicant must complete at least 1/3 of the continuing education credits in approved courses relating to the applicant certification categories. Additionally, this section lists the acceptable courses of study for continuing education credits: attendance at a seminar or technical presentation; completion of a self-study course; completion of a classroom course offered by an accredited academic institution; instruction at a continuing education seminar or a technical presentation for an approved sponsor; successful completion of an examination for new certification category listed in § 401.6; and attendance at a model code organization code change hearings.
Section 401.10. Department-approved providers.
This section lists the Department approved training providers and allows the approval of additional training providers. The following sponsors are preapproved to provide continuing education credit hours: The National Conference of States on Building Codes and Standards; a Federal, Commonwealth or state agency; an accredited academic institution; a model code organization or its accredited local chapter; a trade association representing design professionals or the construction industry; a National standards writing organization; and an association serving or representing Commonwealth municipalities. The Department will approve additional providers that demonstrate the competency to provide additional continuing education programs, and submit an application and appropriate documentation that it meets the requirements of § 401.9. The Department may revoke approval of any provider that does not comply with § 401.9 or § 401.10 following notice and the opportunity to be heard.
Section 401.11. Certification of third-party agency.
This section requires current certification for a third-party agency to act as construction code officials under a contract with a person, firm or corporation. An applicant for certification as a third-party agency shall submit an application and required fee to the Department. A third-party agency must provide documentation to the Department verifying that its employees who act as construction code officials and perform plan review are currently registered or certified in the specific categories applicable to the work they perform.
Section 401.12. Liability insurance.
This section requires a third-party agency to carry errors and omission insurance in at least the amount of $1 million for each person and each occurrence to satisfy claims or judgments for damages. A third-party agency shall submit evidence of insurance as a condition for obtaining and renewing certification consisting of a certificate of insurance or a copy of the declarations page setting forth the effective date, expiration date and the required amount of coverage. This section requires that a third-party agency immediately notify the Department of any changes in its errors and omissions liability insurance. Upon notice of loss or cancellation of coverage, the Department will immediately initiate action to decertify the third-party agency under § 401.14 (relating to decertification or refusal).
Section 401.13. List of code administrators.
This section requires the Department to maintain a list of code administrators indicating their categories of certifications. This list will be made available to municipalities and the public upon request.
Section 401.14. Decertification or refusal.
This section establishes that the Department may initiate an action to decertify a code administrator or refuse to issue certification for just cause. This section also lists the types of corrective action the Department is authorized to take against a code administrator for just cause. Just cause will consist of the following: failure to remedy an error or omission specified in a formal warning or failure to comply with an order issued by the Department under this section; fraud or deceit or making untrue representation in obtaining a certificate; failure to remit the required certification fee; violation of the act or this chapter; incompetence or gross negligence; acting in a manner presenting a danger to the public health or safety; pleading guilty, entering a plea of nolo contendere or being found guilty of a felony or any crime relating to the business of code administrator or receiving probation without verdict, disposition in lieu of trial or an Accelerated Rehabilitative Disposition in the disposition of felony charges; having a certification or any authorization to engage in the business of code administrator revoked or suspended, having other disciplinary action taken or having an application denied by a reciprocal jurisdiction; failing to complete continuing education requirements or engaging in deceit or misrepresentation in the reporting of continuing education requirements; engaging in fraud, deceit or an act of moral turpitude while acting as a code administrator; aiding and abetting a person engaging in code administrator activity is not certified or registered; being a third-party agency that does not comply with § 401.12; and engaging in the activities of a code administrator or advertising as a code administrator without a current and appropriate certification or registration.
This section provides the Department's procedure for decertification, and the notice and hearing provisions for decertification or refusal to grant certification according to 2 Pa.C.S. (relating to administrative law and procedure) and 1 Pa. Code Part II (relating to the General Rules of Administrative Practice and Procedure).
The Department may, for just cause, administer a formal warning, require the code administrator to take remedial educational courses, decertify the code administrator for up to 3 years and require the surrendering of the certificate, or deny the application for certification. Unless ordered to do so by a court of competent jurisdiction, the Department will not reinstate certification to a person who was decertified unless the full period of decertification has elapsed; the code administrator demonstrates that he is fully rehabilitated and that recertification would not be detrimental to the public health and safety if the code administrator was convicted of a crime related in any way to code enforcement; the person has complied with the conditions imposed by the Department's order of decertification; and the person complies with § 401.4.
Section 401.15. Registration of current code administrators.
A current code administrator engaged in plan review or inspection of one-family or two-family residential property may continue to engage in these activities without meeting the training and certification requirements of this chapter for 3 years from the effective date of this proposed rulemaking. After the expiration of this period, the current code administrator shall meet the training and certification requirement of this proposed rulemaking. A current code administrator engaged in plan review or inspection of other buildings and structures may continue to engage in these activities without meeting the training and certification requirements of this chapter for 5 years from the effective date of this proposed rulemaking. After this period, this current code administrator shall meet the training and certification requirements of this proposed regulation.
A current code administrator shall register with the Department by submitting a completed Department-provided form and furnishing required documentation consisting of an affidavit completed by the employer responsible for oversight of the current code administrator containing a description of the duties, employment and length of employment.
This section also provides for the issuance of photo identification cards to registered current code administrators. This identification card will expire on the date that the current code administrator must meet the training and certification requirements of this chapter. A fee will be charged for the identification.
Section 401.16. Change of address or employer.
This section requires certification and registration holders to notify the Department of any change in mailing address or employer within 30 days.
Affected Persons
Those affected by this proposed rulemaking are current and prospective code administrators including employees of the Department, municipalities, political subdivisions and third party agencies. These employees are required to meet the certification requirements of the act, including the specific category testing in order to perform their duties. Code administrators will have to complete mandatory continuing education hours to renew certifications. Employers will insure that code administrators meet this chapter's requirements. Third party-agencies will have to obtain appropriate insurance coverage. The Department will have to meet the staffing requirements to ensure the certification and renewal of code administrators. The general public is also affected in that the use of trained and certified building code administrators to perform building inspections will increase public safety.
The Department of Transportation agreed that code administrators may obtain photo identification cards at its drivers license centers so that code administrators may comply with §§ 401.4 and 401.15.
Fiscal Impact
The Commonwealth will incur ongoing costs related to the administration of the new certification provisions. These costs will be greater at the onset of the certification program and will decrease over the course of 5 years. These administrative costs are the result of the act requirements.
The Department will be required to augment its existing staff to review, process and evaluate applications for certification of code administrators. The Department, an employer of code administrators, will be required to train and certify its existing employees. Further, the Department will also incur costs in providing continuing education for its employees.
Local governments will only incur costs if they decide to administer and enforce the UCC. Local governments that conduct building code programs, and third-party agencies which hire code administrators, will incur costs associated with training, certification and continuing education of their employees. To offset these costs, local governments will be able to charge plan review and building permit fees to owners or builders. Third-party agencies will have to pay the costs to obtain appropriate insurance coverage.
Reporting, Recordkeeping and Paperwork Requirements
This proposed rulemaking will require the creation of new forms and reporting requirements. The Department will develop forms for certification, registration and certification renewal. Current code administrators will be required to register and furnish employment information. Prospective code officials will be required to submit proof of completion of testing and an application for certification.
All code administrators will be required to provide documentation of continuing education for certification renewal every 3 years.
Third-party agencies will be required to submit applications containing lists of code administrators and documentation of insurance coverage.
Sunset Date
A sunset date is not appropriate for this proposed rulemaking. The Department is required under section 304 of the act (35 P. S. § 7210.304) to adopt successor BOCA and other model building codes such as the ICC International One and Two Family Dwelling Code and the International Fuel Gas Code. This requirement provides the Department the opportunity to periodically monitor this proposed rulemaking.
Effective Date
This proposed rulemaking will be effective upon publication of the final-form regulations in the Pennsylvania Bulletin.
Contact Person
Interested persons are invited to submit written comments, suggestions or objections regarding the proposed rulemaking to Charles J. Sludden, Director of Bureau of Occupational and Industrial Safety, Department of Labor and Industry, Room 1613, Labor & Industry Bldg., 7th and Forster Streets, Harrisburg, PA, 17120 or by e-mail to csludden@dli.state.pa.us within 30 days of publication in the Pennsylvania Bulletin.
Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on June 26, 2001, the Department submitted a copy of this proposed rulemaking to the Independent Regulatory Review Commission (IRRC) and to the Chairpersons of the Senate Committee on Labor and Industry and the House Labor Relations Committee. In addition to submitting the proposed rulemaking, the Department has provided IRRC and the Committees with a copy of a detailed Regulatory Analysis Form prepared by the Department.
Under section 5(g) of the Regulatory Review Act, if IRRC has objections to any portion of the proposed regulations, it will notify the Department within 10 days of the close of the Committees' review period. The notification shall specify the regulatory review criteria that have not been met by the portion of the proposed regulations to which an objection is made. The Regulatory Review Act specifies detailed procedures for review, prior to final publication of the regulations, by the Department, the General Assembly and the Governor of objections raised.
JOHNNY J. BUTLER,
SecretaryFiscal Note: 12-57. (1) General Fund; (2) Implementing Year 2000-01 is $0; (3) 1st Succeeding Year 2001-02 is $300,000; 2nd Succeeding Year 2002-03 is $300,000; 3rd Succeeding Year 2003-04 is $200,000; 4th Succeeding Year 2004-05 is $100,000; 5th Succeeding Year 2005-06 is $100,000; (4) Fiscal Year 1999-00 $New Program; Fiscal Year 1998-99 $New Program; Fiscal Year 1997-98 $New Program; (7) General Government Operations; (8) recommends adoption.
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