Title of Regulation: 13VAC5-21. Virginia Certification Standards (amending 13VAC5-21-10, 13VAC5-21-31 through 13VAC5-21-61).

Statutory Authority: § 36-137 of the Code of Virginia.

Public Hearing Information:

December 16, 2013 - 10 a.m. - Virginia Housing Center, 4224 Cox Road, Glen Allen, VA

Public Comment Deadline: December 20, 2013.

Agency Contact: Stephen W. Calhoun, Regulatory Coordinator, Department of Housing and Community Development, Main Street Centre, 600 East Main Street, Suite 300, Richmond, VA 23219, telephone (804) 371-7000, FAX (804) 371-7090, TTY (804) 371-7089, or email steve.calhoun@dhcd.virginia.gov.

Basis: Section 36-137 of the Code of Virginia authorizes the Board of Housing and Community Development to promulgate and amend regulations as may be necessary to carry out its responsibilities. Section 36-137 also authorizes the board to issue a certificate of competence concerning the content, application, and intent of specified subject areas of the building and fire prevention regulations promulgated by the board to present or prospective personnel of local governments and to any other persons seeking to become qualified to perform inspections pursuant to Chapter 6 (§ 36-97 et seq.) of Title 36 of the Code of Virginia or Chapter 9 (§ 27-94 et seq.) of Title 27 of the Code of Virginia, and any regulations adopted thereunder, who have completed training programs or topic examinations, or in other ways demonstrate adequate knowledge.

Purpose: As recognized in § 36-99 of the Code of Virginia, the purpose of the Uniform Statewide Building Code is to protect the health, safety, and welfare of the citizens of the Commonwealth, while permitting buildings to be constructed in the most economical manner consistent with such pertinent recognized standards relative to construction, health, and safety. Therefore, the certification, associated training, and education of the local and nongovernment code enforcement personnel are inherent in and critical to the achievement of this purpose and ensure the technical and professional level of those personnel, including the knowledge and skill gained from the initial training, mandated periodic training, and continuing education, as well as familiarity with and understanding of recent developments within the building codes and construction industry.

Substance: This regulatory action (i) clarifies the existing mandatory requirements for all certificate holders in code enforcement to separately obtain both periodic training to maintain a level of technical knowledge required of the certificate holder and continuing education to progress to the level of professional skill commensurate with building code cycles and construction industry developments; (ii) correlates the proposed regulatory amendments with the Virginia Uniform Statewide Building Code, which encompass the relevant sections of the Virginia Construction Code (Section 105.2.3), Virginia Residential Code (Section 105.2.3), and Virginia Maintenance Code (Section 104.4.4), regarding compliance with the requirement for periodic maintenance training and the requirement for continuing education credits; (iii) applies the mandated training and education requirements to further define active, inactive, and lapsed certificate statuses relative to the ongoing training and education of certificate holders; (iv) clarifies references to training and examination requirements for initial certification by citing the required list maintained by the agency for purposes of certification application; and (v) establishes criteria for age of training and examination in the application process.

Issues: The advantage to the public is that this action promotes the uniform interpretation and application of the existing regulation and ensures the technical knowledge and professional skill levels of local code enforcement personnel necessary to protect the health, safety, and welfare of the public. This regulatory action poses no foreseeable disadvantages to the public or the Commonwealth.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Housing and Community Development (Board) proposes to amend the Virginia Certification Standards to: 1) require applicants for certification to have completed qualifying examinations and education not more than six years before submitting their applications, 2) remove a partial list of training modules from these regulations, 3) specify that the Board will consider allowing alternates to training requirements listed in these regulations and 4) require nongovernmental certificate holders to meet the same continuing education requirements as are laid out in the Uniform Statewide Building Code (USBC) for governmental certificate holders.

Result of Analysis. There is insufficient information to ascertain if benefits will outweigh costs for several of these proposed changes. For other proposed changes, benefits will likely outweigh costs.

Estimated Economic Impact. Current regulations require applicants for USBC certifications to provide proof of successful completion of an approved examination for each certificate sought but they do not place limitations on when exams can be completed in order to count toward meeting certification requirements. Board staff reports that certifying someone who has completed a qualifying exam too far in the past can be problematic because that individual will not have shown mastery of current USBC requirements. The Board proposes to add a time limit and require that applicants pass their qualifying exam within six years (or two code cycles) of applying for certification unless they also hold a current International Code Council (ICC) certification. To the extent that major changes are made fairly frequently to the USBC, this proposed change is one way to try and ensure that individuals seeking certification are knowledgeable about the current rules in the USBC. The Board might also, however, require that applicants read and understand USBC changes before certification or require that they take a code class offered by the Department of Housing and Community Development (DHCD) before certification rather than disallowing older certification exams altogether. Both of these options would present challenges (the USBC is proprietary and can be read online but may not be printed for reading offline, for instance). These options would, however, eliminate the need for applicants to pay $150-$180 and spend the time needed to retake a qualifying exam. Without knowing how many individuals would be affected by this change, and how many of those individuals have kept up on USBC changes by means other than studying for a qualifying exam, there is insufficient information to measure the magnitude of costs and benefits for this proposal.

Current regulations include a partial list of certifications offered by DHCD but the full list is maintained by the DHCD outside of these regulations. The Board proposes to eliminate the partial list in these regulations and, instead, include language that informs interested parties that a list of certifications is maintained by the department¹. No entity is likely to incur costs on account of this change. Interested parties are likely to benefit from this change as it is likely to forestall confusion as to what certifications are available.

Currently, these regulations specify that alternatives to the training requirements in these regulations (13VAC5-21-45) shall be permitted. The Board proposes to amend this language so that alternatives shall be considered. This new language, on its face at least, appears to be more restrictive for applicants who have completed training other than what is in section 45 of these regulations. Without knowing what education would be disallowed by DHCD under proposed regulations that they would allow under current regulations, and whether the potentially disallowed education actually would make applicants able to competently work under the certification sought, there is insufficient information to know whether costs will outweigh benefits for this proposed change.

Currently, the USBC requires that governmental certificate holders complete 16 hours of continuing education every biennium and these regulations state that certificates will be in inactive status if continuing education is not completed. This means that nongovernmental certificate holders are not currently required to complete continuing education by the USBC but, in these regulations, they cannot hold an active certificate that allows them to work at the tasks certified if they don't. As this has the potential to cause confusion, the Board now proposes to amend the certification standards to make it clear that all certificate holders are required to complete 16 hours of training every biennium. No entity is likely to incur costs on account of this change. To the extent that current regulatory requirements are somewhat disjointed and opaque, certificate holders are likely to benefit from the additional clarity that this change offers.

Businesses and Entities Affected. DHCD reports that there are up to approximately 3,500 Board certificate holders in the Commonwealth and that it is likely that no more than 15% (or 525 individuals) of these certificate holders are nongovernmental entities. All of these entities will be affected by these proposed regulations.

Localities Particularly Affected. No localities will be particularly affected by these proposed regulations.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. These proposed regulatory changes are unlikely to affect the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. DHCD does not know how many small businesses will be affected by these proposed regulations but the probable upper bound for the possible number of affected small businesses would be the estimated number of nongovernmental certificate holders (approximately 525 individuals). To the extent that they are not already completing the continuing education hours that will be required, these entities will likely incur some implicit costs for their time spent completing 16 hours of training every biennium. These entities may also incur explicit costs for fees for continuing education if they cannot or do not complete all required hours using no-cost options approved by the Board. Other private small business entities who are not currently certified might also incur costs for retaking a qualifying exam if their exam scores are more than six years old.

Small Businesses: Alternative Method that Minimizes Adverse Impact. There are likely no alternative methods that will both meet the goals of the Board and be less costly.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 14 (10). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, a determination of the public benefit, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has an adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

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¹ The list is accessible online at DHCD's website under The Training and Certification Matrix.

Agency's Response to Economic Impact Analysis: The Department of Housing and Community Development concurs with the economic impact analysis prepared by the Department of Planning and Budget.

Summary:

The Board of Housing and Community Development proposes to amend the Virginia Certification Standards to (i) require applicants for certification to have completed qualifying examinations and education not more than six years before submitting their applications; (ii) remove specified building code academy training modules for initial certification and, instead, refer to a required list of training modules maintained by the Department of Housing and Community Development; (iii) specify that the board will consider allowing training alternatives to training requirements listed in these regulations; and (iv) require nongovernmental certificate holders to meet the same continuing education requirements as those set forth in the Uniform Statewide Building Code for governmental certificate holders.

13VAC5-21-10. Definitions.

A. The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Applicant" means a person seeking a certificate.

"BCAAC" means the Building Code Academy Advisory Committee appointed pursuant to subdivision 7 of § 36-137 of the Code of Virginia.

"BHCD" means the Virginia Board of Housing and Community Development.

"Certificate" means a certificate of competence issued pursuant to subdivision 6 of § 36-137 of the Code of Virginia concerning the content, application, and intent of specified subject areas of the building and fire prevention regulations promulgated by the BHCD and issued to present or prospective personnel of local governments and to any other persons seeking to become qualified to perform inspections pursuant to Chapter 6 (§ 36-97 et seq.) of Title 36 of the Code of Virginia, Chapter 9 (§ 27-94 et seq.) of Title 27 of the Code of Virginia, and any regulations adopted thereunder, who have completed training programs or in other ways demonstrated adequate knowledge.

"Certificate holder" means a person to whom a certificate has been issued.

"Code academy" means the Virginia Building Code Academy established under subdivision 14 of § 36-139 of the Code of Virginia or individual or regional training academies accredited by the department pursuant to subdivision 7 of § 36-137 of the Code of Virginia.

"DFP" means the Virginia Department of Fire Programs.

"Department" means the Virginia Department of Housing and Community Development.

"Nongovernmental employee" means any person not employed by a locality collecting and transmitting the fee levy to the department in accordance with subdivision 7 of § 36-137 of the Code of Virginia.

"SFPC" means the Virginia Statewide Fire Prevention Code (13VAC5-51).

"State Review Board" means the Virginia State Building Code Technical Review Board established under § 36-108 of the Code of Virginia.

"USBC" means the Virginia Uniform Statewide Building Code (13VAC5-63).

"VADR" means the Virginia Amusement Device Regulations (13VAC5-31).

B. Words and terms used in this chapter that are defined in the USBC, VADR, or SFPC and that are not defined in this chapter shall have the meaning ascribed to them in those regulations unless the context clearly indicates otherwise.

13VAC5-21-31. Qualification and examination requirements.

A. An applicant for a certificate in categories associated with the USBC or the SFPC shall provide a written or electronic endorsement from the code official or the code official's supervisor in the locality in which they are employed certifying that the applicant complies with the qualification section in the USBC or the SFPC for each type of certificate sought. When the applicant for a certificate in categories associated with the USBC or the SFPC is a nongovernment nongovernmental employee, the applicant shall provide written or electronic documentation that the applicant complies with the qualification section in the USBC or the SFPC as it would relate to the applicant's job responsibilities for each type of certificate sought.

B. An applicant for a certificate in categories associated with the VADR shall provide a written endorsement from the applicant's supervisor or a person having a similar relationship to the applicant certifying that the applicant is generally qualified to conduct activities related to the VADR.

C. Applicants for all certificates shall provide proof of successful completion of approved examinations for each certificate sought, except as provided for in 13VAC5-21-45 based on current certification examination requirements. Applications submitted with passing grades on approved examinations older than six years from the date of passing will be denied except where the applicant can demonstrate the maintenance of a current certification issued by the approved testing agency. The department may consider related certifications maintained by the certifying entity. The department shall maintain a list of approved testing agencies and examinations that meet nationally accepted standards for each certificate offered. For information on approved testing agencies and examinations contact the department's Technical Assistance Services Office, 501 N. 2nd St. Training and Certification Office, 600 East Main Street, Suite 300, Richmond, VA 23219, telephone (804) 371-7180.

13VAC5-21-41. Certification categories and training requirements.

A. The department maintains a list of all certificates offered and the list sets out the required training necessary to attend and complete to obtain a certificate. This section also contains specific training requirements for some certificates offered that may be duplicated on the list or that may be in addition to those on the list. Alternatives to the training requirements set out in 13VAC5-21-45 shall be permitted considered for all certificates offered except that no alternative shall be accepted for the code academy core module.

B. Applicants for certificates shall attend and complete the code academy core module. In addition to After the completion of the core module, applicants for the following certificates are required to attend and complete the following code academy training as set out in a list maintained by the department, except as provided for in 13VAC5-21-45:. All required training must be completed within no more than six years prior to the date the application is submitted and the requirements for training are based on those in effect at the time of application.

Certificate	Code Academy Training
Building official	Advanced official module
Fire official	Advanced official module and the 1031 school as administered by DFP
Building maintenance official	Advanced official module and the property maintenance module
Fire prevention inspector	The 1031 school as administered by DFP
Amusement device inspector	Amusement device inspection module

13VAC5-21-45. Alternatives to examination and training requirements.

A. An applicant for a certificate with the written endorsement or documentation required by 13VAC5-21-31 may submit a written request to the department to approve an equivalent examination by a testing agency not on the list of approved testing agencies to satisfy the examination requirements of 13VAC5-21-31. BCAAC may be consulted with in any such consideration.

B. Upon written request, alternative training or a combination of training, education or experience to satisfy the training requirements of 13VAC5-21-41 may be approved, provided that such alternatives or combinations are determined to be equivalent to that required. However, as provided in 13VAC5-21-41, no substitutions shall be approved for the code academy core module. The types of combinations of education and experience may include military training, college classes, technical schools or long-term work experiences, except that long-term work experiences shall not be approved as the sole substitute to satisfy the training requirements. BCAAC may be consulted with in any such consideration.

13VAC5-21-51. Issuance and maintenance of certificates.

A. Certificates will be issued when an applicant has complied with the current applicable requirements of this chapter. Certificate holders will be classified as active or, inactive, or lapsed. An active certificate holder is a person who is certified and who has attended all periodic training courses designated by the department and complied with all continuing education requirements subsequent to becoming certified. An inactive certificate holder is a person who is certified but and has not either attended all such the periodic training courses designated by the department or met the continuing education requirements, but not both. An inactive certificate holder may request reinstatement as an active certificate holder after completing make-up makeup training courses authorized by the department. A lapsed certificate holder is a person who is certified but has not attended all periodic training courses designated by the department and who has not complied with all continuing education requirements. A lapsed certificate holder may request reinstatement as an active certificate holder after completing makeup training courses or examinations, or both, as authorized by the department. Provisional certificates may also be issued in accordance with subsection C of this section. Requirements for periodic training courses and continuing education requirements are set out in subsection D of this section.

B. All certificates issued since June 1978 are considered to be valid unless revoked or suspended, except that provisional certificates shall remain valid as set out under subsection C of this section.

C. A provisional certificate may be issued to (i) a person who has been directed by the department to obtain a certificate; (ii) an applicant requesting a certificate under the alternative examination or training provisions of 13VAC5-21-45; or (iii) an applicant when the required training has not been provided or offered; (iv) an inactive or lapsed certificate holder when the issuance of a provisional certificate is determined to be warranted by the department; or (v) a person who, due to extenuating and warranting circumstances either on behalf of the code academy or beyond the person's control, has not fully complied with the eligibility requirements of training and competency established herein.

Such a provisional certificate may be issued when the applicant or person has (i) provided the written endorsement or documentation required by 13VAC5-21-31, (ii) satisfactorily completed the code academy core module, and (iii) completed any training through the code academy or through other providers determined to warrant the issuance of the provisional certificate.

The provisional certificate is valid for a period of one year after the date of issuance and shall only be issued once to any individual, except that a provisional certificate shall remain valid when the required training has not been provided or offered.

D. All certificate holders shall attend periodic maintenance training as designated by the department and shall attend 16 hours of continuing education every two years as approved by the department. If a certificate holder possesses more than one certificate, the 16 hours shall satisfy the continuing education requirement for all certificates.

13VAC5-21-61. Sanctions.

When the BHCD determines a certificate holder has failed to (i) comply with an order issued by the State Review Board or failed to, (ii) meet the required training or testing requirements, or (iii) attend periodic maintenance training or continuing education, or both, a warning letter may be issued to the certificate holder or a certificate may be revoked or suspended by the BHCD. In such cases, a noncompliance notice shall be issued to the certificate holder and notification shall be provided to the locality or company employing the certificate holder. Exceptions to the issuance of a noncompliance notice for failing to comply with the continuing education requirements may be considered where there is a separation from employment by medical or military leave for 12 consecutive months or more during the continuing education period. A record of any action taken pursuant to this section shall be permanently retained in the training record of the certificate holder.