Title of Regulation: 2VAC5-200. Rules and Regulations Pertaining to the Disposal of Entire Flocks of Dead Poultry (amending 2VAC5-200-10, 2VAC5-200-20, 2VAC5-200-30, 2VAC5-200-50, 2VAC5-200-60).

Statutory Authority: § 3.2-6029 of the Code of Virginia.

Effective Date: October 29, 2009.

Agency Contact: Richard D. Saunders, Deputy Director, Department of Agriculture and Consumer Services, P. O. Box 1163, Richmond, VA 23218, telephone (804) 692-0601, FAX (804) 371-2380, TTY (800) 828-1120, or email doug.saunders@vdacs.virginia.gov.

Summary:

The regulation amends the acceptable methods of carcass disposal to permit composting or other methods approved by the State Veterinarian; adds language on provisions governing composting; and amends the requirement to file disposal plans. The substantive changes proposed by this action include adding "composting" as a method of disposing of poultry destroyed to prevent the spread of an infectious or contagious disease; amending the definitions of "incinerator" and "landfill" to mirror definitions in the Code of Virginia; removing the definition of "infectious and contagious disease"; amending the definition of "person" to remove the terminology "for profit" (as well as removing this terminology from other locations within the regulation) to reflect that the regulation applies not only to for-profit operations, but also to those that are not-for-profit.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

2VAC5-200-10. Definitions.

The following words and terms, when used in this chapter, shall have the following meaning, unless the context clearly indicates otherwise:

"Composting" means the natural [ treatment ] process in which beneficial microbes reduce dead poultry into a biologically safe byproduct.

"Dead poultry" means poultry, exclusive of those intentionally slaughtered for food, which that die or are destroyed as a result of a contagious and infectious disease upon any premises in the state through natural contagion on any premises in this state and poultry destroyed as the result of a natural or manmade disaster.

"Department" means the Virginia Department of Agriculture and Consumer Services.

"Disposal" means the complete to put dead poultry into a landfill or disposal pit; the [ treatment and ] complete destruction of dead poultry in an incinerator or their proper disposition in a disposal pit, in a landfill, or [ treatment ] by rendering or composting; or the management of dead poultry by other methods approved by the State Veterinarian [ and in accordance with other state laws and regulations ].

"Disposal pit" means an opening dug in the ground that [ is permitted in accordance with and ] meets the Initial Site Screening Criteria for Burial of Dead Poultry, the terms of which are hereby incorporated by reference and criteria as specified in VR 672-20-10 9VAC20-80 [ , ] of the Virginia [ Department of ] Waste Management [ Environmental Quality Waste Management Board ], Solid Waste Management Regulations.

"Entire flock" means all of the poultry within one group of poultry that has been designated as a flock for a period of at least 21 days.

"Flock" means all of the poultry on one premises, except that, at the discretion of the department State Veterinarian, any group of poultry which is segregated from other poultry and has been so segregated for a period of at least 21 days may be considered as a separate flock.

"Incinerator" means a firebox constructed of masonry or metal in which dead poultry is burned by the use of fuel device designed for treatment of waste by combustion.

"Infectious and contagious disease" means avian influenza and exotic newcastle disease.

"Landfill" means an engineered land burial facility for the disposal of solid waste which is so located, designed, constructed, and operated to contain and isolate the solid waste so that it does not pose a substantial present or potential hazard to human health or the environment area permitted by the Department of Environmental Quality allowing the disposal of dead poultry.

"Off-farm disposal site" means any site for the disposal of dead poultry other than the farm on which the dead poultry died.

"Person" means any person, firm, partnership, corporation, or institution which engages in the raising or keeping of poultry for profit in this state.

"Poultry" means all chickens, ducks, turkeys or other domestic fowls being raised or kept on any premises in the state for profit.

"Premises" means the entire tract of land, including but not limited to the buildings thereon, owned, leased or used by any person for the raising or keeping of poultry for profit.

"Raising or keeping of poultry for profit" means the raising or keeping of 500 or more poultry at one time for the purpose of sale of such poultry or the eggs produced therefrom.

"Rendering" means treating dead poultry according to the process described in 9 CFR § 381.95(a) 82.1.

2VAC5-200-20. Applicability.

This chapter shall govern the disposal of dead birds poultry by persons who raise or keep poultry for profit or who have entered into a contract for the raising or keeping of poultry for profit, but only when the entire flock is to be depopulated or when the entire flock dies. In all other instances § 3.1-742.1 et seq. involving for profit operations, Article 2 (§ 3.2-6024 et seq.) of Chapter 60 of Title 3.2 of the Code of Virginia, Disposal of Dead Poultry, shall govern.

2VAC5-200-30. Disposal pits, incinerators, landfilling landfills, or rendering, or composting required of persons raising or keeping poultry for profit.

A. It shall be unlawful for any person to engage in the raising or keeping of poultry for profit on any premises within the Commonwealth of Virginia, or to enter into a contract involving the raising or keeping of poultry for profit with any other person, unless the premises upon which such poultry is to be raised or kept is provided with or unless the person maintaining the premises whereon the poultry is raised or kept has access to:

1. A disposal pit;

2. An incinerator;

3. A renderer through a bona fide contract for rendering;

4. A landfill, through a bona fide contract for the disposal of dead poultry therein.

5. Composting either on site, in the poultry house, or at another site approved by the State Veterinarian; or

6. Any other method approved by the State Veterinarian.

B. Provisions governing disposal pits. [ Disposal pits shall be sited and permitted as landfills in accordance with the requirements of 9VAC20-80, Solid Waste Management Regulations, of the Virginia Waste Management Board. ]

[ 1. If possible, an area away from public view should be selected.

2. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall construct or use any pit for the disposal of poultry unless it conforms to the definition of a disposal pit contained in this chapter.

3. Any person engaged in the raising or keeping of poultry for profit and any person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall, before using a disposal pit, obtain approval for its use as required by state law. ]

C. Provisions governing incinerators.

1. If possible, an area away from public view should be selected.

2. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall construct or use an incinerator for the disposal of dead poultry unless it is constructed of masonry or metal and has the capability to burn within a time frame approved by the State Veterinarian all poultry raised or kept on the premises at any time.

3. Any person engaged in the raising or keeping of poultry for profit and any person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall, before using an incinerator on his premises to dispose of birds, obtain approval for its use as required by state law [ and regulation ].

D. Provisions governing bona fide rendering contract. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall dispose of dead poultry through rendering unless he owns a [ rending rendering ] facility, or unless he has entered into a bona fide contract for the rendering of such dead poultry, which contract shall be part of the plan for disposal of dead poultry specified by 2VAC5-200-50 [ of this chapter ].

E. Provisions governing bona fide contract with a landfill. No person engaged in the raising or keeping of poultry for profit and no person who has entered into a contract involving the raising or keeping of poultry for profit with any other person shall dispose of dead poultry in a landfill unless he owns a landfill, or unless he has entered into a bona fide contract for such disposal of dead poultry in a landfill, which contract shall be part of the plan for the disposal of dead poultry specified by 2VAC5-200-50 [ of this chapter ].

F. Provisions governing composting.

1. If possible, an area from public view should be selected.

2. No person engaged in the raising or keeping of poultry and no person who has entered into a contract involving the raising or keeping of poultry with any other person shall construct or use any facility for the composting of dead poultry unless it conforms to best management practices or acceptable composting guidance as approved by the State Veterinarian.

3. Any person engaged in the raising or keeping of poultry and any person who has entered into a contract involving the raising or keeping of poultry with any other person shall, before composting, obtain approval for composting as required by state law [ and regulation ].

2VAC5-200-50. Plans for disposal of dead poultry.

A. No person shall engage in the raising or keeping of poultry for profit and no person shall enter into a contract involving the raising or keeping of poultry for profit with any other person unless he files with the State Veterinarian a plan, has in his possession a dead poultry disposal plan embracing [ , ] at a minimum [ , ] provisions consistent with the requirements of this chapter for the disposal of an entire flock of dead poultry. The plan shall be made available upon request of the State Veterinarian or his representative.

B. No person may implement the plan or any amendment to it until it is approved by the State Veterinarian. No person who owns a flock of less than 500 poultry shall be required to have a plan for the disposal of dead poultry. In the event a flock of less than 500 poultry needs to be depopulated or dies, the State Veterinarian, in consultation with the owner, will determine a method of disposal that complies with disease prevention protocol [ and , ] is environmentally sound [ , and is consistent with state law and regulation ].

C. Nothing in this section shall prohibit a person from filing developing a plan on behalf of its contract growers.

2VAC5-200-60. Transportation of dead poultry; sanitation.

A. No person may transport any dead poultry from any premises to an off-farm disposal site without the prior approval, granted by permit on a case-by-case basis, by the State Veterinarian or his representative.

B. No person may transport dead poultry from a farm premises to any off-farm disposal site except in leak-proof containers or leak-proof trucks transporting vehicles.

C. No person may transport dead poultry from a farm premises to any off-farm disposal site unless the dead poultry is enclosed in the transporting vehicle so that feathers and other debris will not be released into the environment.

D. No person may transport dead poultry from a farm premises to an off-farm disposal site unless:

1. The containers are disinfected prior to loading on the truck transporting vehicle and the exterior of the loaded truck transporting vehicle [ is ] disinfected prior to leaving the farm; and

2. The entire truck transporting vehicle is cleaned and disinfected after unloading at the off-farm disposal site and prior to leaving the off-farm disposal site.

FORMS (2VAC5-200) (Repealed.)

Initial Premises Survey For Burial of Poultry, Form VDACS-03110.

Approval of Dead Poultry Disposal Plan, Form VDACS-03111, eff. 2/93.

Title of Regulation: 3VAC5-70. Other Provisions (adding 3VAC5-70-225).

Statutory Authority: §§ 4.1-103, 4.1-111, and 4.1-212.1 of the Code of Virginia.

Effective Date: October 28, 2009.

Agency Contact: Jeffrey L. Painter, Legislative and Regulatory Coordinator, Department of Alcoholic Beverage Control, P.O. Box 27491, Richmond, VA 23261, telephone (804) 213-4621, FAX (804) 213-4411, TTY (804) 213-4687, or email jeffrey.painter@abc.virginia.gov.

Summary:

Chapters 99 and 799 of the 2007 Acts of Assembly are identical enactments, creating a new delivery permit that may be issued by the Department of Alcoholic Beverage Control to certain alcoholic beverage manufacturers or retailers. The regulation details the application, recordkeeping, and reporting requirements for delivery permittees.

Summary of Public Comments and Agency's Response: A summary of comments made by the public and the agency's response may be obtained from the promulgating agency or viewed at the office of the Registrar of Regulations.

3VAC5-70-225. Delivery permits; application process; records and reports.

A. Any person or entity qualified for a delivery permit pursuant to § 4.1-212.1 of the Code of Virginia must apply for such permit by submitting Form 805-52, Retail License Application. The applicant shall attach (i) a photocopy of its current license as a winery, farm winery, brewery, or alcoholic beverage retailer that is authorized to sell wine or beer at retail for off-premises consumption, issued by the appropriate authority for the location from which deliveries will be made and (ii) evidence of the applicant's registration with the Virginia Department of Taxation for the collection of Virginia retail sales tax.

B. Delivery permittees shall maintain for two years complete and accurate records of all deliveries made under the privileges of such permits, including for each delivery:

1. Number of containers delivered;

2. Volume of each container delivered;

3. Brand of each container delivered;

4. Names and addresses of recipients;

5. Signature of recipient; and

6. Price charged for the wine or beer delivered.

The records required by this subsection shall be made available for inspection and copying by any member of the board or its special agents upon request.

C. On or before the 15th day of each month, each delivery permittee shall file with the Supervisor, Tax Management Section, a report of activity for the previous calendar month, if any deliveries were made during the month. Such report shall include the following information for each delivery:

1. Number of containers delivered;

2. Volume of each container delivered;

3. Brand of each container delivered;

4. Names and addresses of recipients; and

5. Price charged for the wine or beer delivered.

Unless previously paid, payment of the appropriate beer or wine tax imposed by § 4.1-234 or 4.1-236 of the Code of Virginia shall accompany each report. If no wine or beer was sold and delivered in any month, the permittee shall not be required to submit a report for that month; however, every permittee must submit a report no less frequently than once every 12 months even if no sales or deliveries have been made in the preceding 12 months.

D. All deliveries by holders of delivery permits shall be performed by the owner or any agent, officer, director, shareholder, or employee of the permittee.

E. No more than four cases of wine nor more than four cases of beer may be delivered at one time to any person, except that a permittee may deliver more than four cases of wine or more than four cases of beer if he notifies the Supervisor, Tax Management Section, in writing at least one business day in advance of such delivery. Any notice given pursuant to this section shall include the number of containers to be delivered, the volume of each container to be delivered, the brand of each container to be delivered, and the name and address of the intended recipient.

F. When attempting to deliver wine or beer pursuant to a delivery permit, an owner, agent, officer, director, shareholder, or employee of the permittee shall require:

1. The recipient to demonstrate, upon delivery, that he is at least 21 years of age; and

2. The recipient to sign an electronic or paper form or other acknowledgment of receipt that allows the maintenance of the records required by this section.

The owner, agent, officer, director, shareholder, or employee of the permittee shall refuse delivery when the proposed recipient appears to be under the age of 21 years and refuses to present valid identifications. All permittees delivering wine or beer pursuant to this section shall affix a conspicuous notice in 16-point type or larger to the outside of each package of wine or beer delivered in the Commonwealth, in a conspicuous location stating: "CONTAINS ALCOHOLIC BEVERAGES; SIGNATURE OF PERSON AGED 21 YEARS OR OLDER REQUIRED FOR DELIVERY." Such notice shall also contain the delivery permit number of the delivering permittee.

FORMS (3VAC5-70)

Order and Permit for Transportation of Alcohol, #703-69 (eff. 11/87).

Order and Permit for Transportation of Alcoholic Beverages, #703-73.

Mixed Beverage Annual Review-Instructions for Completion, #805-44 (rev. 11/06).

Application for Off Premises Keg Permit, #805-45 (eff. 1/93).

Retail License Application, #805-52 (rev. [ 7/08) 5/09) ].

Application for Grain Alcohol Permit, #805-75.

Special Event License Application Addendum-Notice to Special Event Licenses Applicants, Form SE-1 (rev.08/02).

Statement of Income & Expenses for Special Event Licenses (with instructions), Form SE-2 (rev.08/02).

Title of Regulation: 4VAC15-90. Game: Deer (amending 4VAC15-90-85).

Statutory Authority: §§ 29.1-501 and 29.1-502 of the Code of Virginia.

Public Hearing Information:

October 22, 2009 - 9 a.m. - 4000 West Broad Street, Richmond, VA

Public Comment Deadline: October 1, 2009.

Agency Contact: Phil Smith, Regulatory Coordinator, Department of Game and Inland Fisheries, 4016 West Broad Street, Richmond, VA 23230, telephone (804) 367-8341 or email phil.smith@dgif.virginia.gov.

Summary:

The proposed amendments designate the term "elk" specifically as "Rocky Mountain elk" (Cervus elaphus) and prohibit the hunting of Rocky Mountain elk in Virginia.

4VAC15-90-85. Hunting elk of either sex prohibited.

Elk Rocky Mountain elk (Cervus elaphus) of either sex may not be taken during the general firearms deer season (as prescribed by 4VAC15-90-10, 4VAC15-90-20, 4VAC15-90-21, and 4VAC15-90-30), during the special archery seasons (as prescribed by 4VAC15-90-70), and during the special muzzleloading seasons (as prescribed by 4VAC15-90-80) with bag limits and checking requirements as prescribed in 4VAC15-90-90, 4VAC15-90-230, and 4VAC15-90-240 in Virginia.

Title of Regulation: 4VAC25-130. Coal Surface Mining Reclamation Regulations.

FORMS (4VAC25-130)

Anniversary Report Form, DMLR-PT-028 (rev. 3/09).

Ground Water Monitoring Report, DMLR-PT-101 (rev. 11/99).

Application for Exemption Determination (Extraction of Coal Incidental to the Extraction Of Other Minerals), DMLR-211 (rev. 3/09).

Consent for Right of Entry-Exploratory, DMLR-AML-122 (rev. 3/98).

Consent for Right of Entry-Construction, DMLR-AML-123 (rev. 3/98).

License for Performance-Acid Mine Drainage Investigations and Monitoring (Abandoned Mine Land Program), DMLR-AML-175c (11/96).

License for Performance-Acid Mine Drainage Reclamation and Construction (Abandoned Mine Land Program), DMLR-AML-176c (rev. 12/96).

Consent for Right of Entry-Ingress/Egress, DMLR-AML-177 (rev. 3/98).

Application for Recertification: DMLR Endorsement/Blaster's Certification, DMLR-BCME-03 (rev. 3/09).

Application for DMLR Endorsement: Blaster's Certification (Coal Surface Mining Operation), DMLR-BCME-04 (rev. 3/09).

Geology and Hydrology Information Part A through E, DMLR-CP-186 (rev. 3/86).

Notice of Temporary Cessation, DMLR-ENF-220 (rev. 3/09).

Lands Unsuitable Petition, DMLR-OA-131 (rev. 12/85).

Chapter 19-Statement for Third Party-Certificate of Deposit, DMLR-PS-093 (rev. 12/85).

Application for Performance Bond Release, DMLR-PT-212 (rev. 3/09)

Example-Waiver (300 Feet from Dwelling), DMLR-PT-223 (rev. 2/96).

Analysis, Premining vs Postmining Productivity Comparison (Hayland/Pasture Land Use), DMLR-PT-012 (rev. 3/09).

Surety Bond, DMLR-PT-013 (rev. 8/07).

Surety Bond-Federal Lands, DMLR-PT-013A (rev. 3/09).

Surety Bond Rider, DMLR-PT-013B (rev. 8/07).

Map Legend, DMLR-PT-017 (rev. 3/09).

Certificate of Deposit, DMLR-PT-026 (rev. 8/07).

Form Letter From Banks Issuing a CD as Performance Bond for Mining on Federal Lands, DMLR-PT-026A (rev. 8/07).

Operator's Seeding Report, DMLR-PT-011 (rev. 3/09).

Request for Relinquishment, DMLR-PT-027 (rev. 3/09 6/09).

Water Supply Inventory List, DMLR-PT-030 (rev. 3/09).

Application for Permit for Coal Surface Mining and Reclamation Operations and National Pollutant Discharge Elimination System (NPDES), DMLR-PT-034 (rev. 2/99).

Request for DMLR Permit Data, DMLR-PT-034info (eff. 11/07).

Certification - Application for Permit: Coal Surface Mining and Reclamation Operations, DMLR-PT-034D (rev. 3/09).

Coal Exploration Notice, DMLR-PT-051 (rev. 3/09).

Well Construction Data Sheet, DMLR-WCD-034D (rev. 5/04).

Sediment Basin Design Data Sheet, DMLR-PT-086 (rev. 3/09).

Impoundment Construction and Annual Certification, DMLR-PT-092 (rev. 3/09).

Road Construction Certification, DMLR-PT-098 (rev. 3/09).

Ground Water Monitoring Report, DMLR-PT-101 (rev. 3/09).

Rainfall Monitoring Report, DMLR-PT-102 (rev. 8/98).

Pre-Blast Survey, DMLR-PT-104 (rev. 3/09).

Excess Spoil Fills and Refuse Embankments Construction Certification, DMLR-PT-105 (rev. 3/09).

Stage-Area Storage Computations, DMLR-PT-111 (rev. 3/09).

Discharge Monitoring Report, DMLR-PT-119 (rev. 3/09).

Water Monitoring Report-Electronic File/Printout Certification, DMLR-PT-119C (rev. 3/09).

Coal Surface Mining Reclamation Fund Application, DMLR-PT-162 (rev. 3/09).

Conditions-Coal Surface Mining Reclamation Fund, DMLR-PT-167 (rev. 3/09).

Coal Surface Mining Reclamation Fund Tax Reporting Form, DMLR-PT-178 (rev. 3/09).

Surface Water Monitoring Report, DMLR-PT-210 (rev. 3/09).

Application For Performance Bond Release, DMLR-PT-212 (rev. 3/09).

Public Notice: Application for Transfer, Assignment, or Sale of Permit Rights under Chapter 19 of Title 45.1 of the Code of Virginia, DMLR-PT-219 (rev. 3/09).

Public Notice: Application for Bond Reduction Under Chapter 19 of Title 45.1 of the Code of Virginia, Phase I, DMLR-PT-225 (rev. 3/09).

Public Notice: Application for Bond Reduction Under Chapter 19 of Title 45.1 of the Code of Virginia, Phase II, DMLR-PT-226 (rev. 3/09).

Public Notice: Application for Bond Reduction Under Chapter 19 of Title 45.1 of the Code of Virginia, Phase III, DMLR-PT-227 (rev. 3/09).

Public Notice: Application for Bond Reduction Under Chapter 19 of Title 45.1 of the Code of Virginia, Incremental Bond Reduction, DMLR-PT-228 (rev. 3/09 8/09).

Verification of Public Display of Application, DMLR-PT-236 (8/01).

Affidavit (Permit Application Information: Ownership and Control Information and Violation History Information), DMLR-PT-240 (rev. 3/09).

Stream Channel Diversion(s) Certification, DMLR-PT-233 (rev. 3/09).

Quarterly Acid-Base Monitoring Report, DMLR-PT-239 (rev. 3/09).

Affidavit (No Legal Change in a Company's Identity), DMLR-PT-250 (rev. 3/09).

Affidavit (Reclamation Fee Payment), DMLR-PT-244 (rev. 3/09).

Application-National Pollutant Discharge Elimination System (NPDES) Permit-Short Form C, DMLR-PT-128 (rev. 3/09).

National Pollutant Discharge Elimination System (NPDES) Application Instructions, DMLR-PT-128A (rev. 3/09).

Impoundment Inspection Report, DMLR-PT-251 (rev. 3/09).

Surface Water Baseline Data Summary, DMLR-TS-114 (rev. 4/82).

Diversion Design Computation Sheet, DMLR-TS-120 (rev. 12/85).

Sediment Channel Design Data Sheet, DMLR-TS-127 (rev. 12/85).

Virginia Stream Survey, DMLR-TS-217 (rev. 1/87).

Line Transect-Forest Land Count, DMLR-PT-224 (rev. 3/09).

Applicant Violator System (AVS) Ownership & Control Information, DMLR-AML-003 (rev. 4/97).

Application for Coal Exploration Permit and National Pollutant Discharge Elimination System Permit, DMLR-PT-062 (formerly DMLR-PS-062) (rev. 3/09).

Application-National Pollutant Discharge Elimination System Application Instructions, DMLR-PT-128 (rev. 9/97).

Written Findings, DMLR-PT-237 (rev. 1/98).

Irrevocable Standby Letter of Credit, DMLR-PT-255 (rev. 8/07).

Confirmation of Irrevocable Standby Letter of Credit, DMLR-PT-255A (eff. 8/03).

Affidavit DMLR-AML-312 (eff. 7/98).

Indemnity Agreement - Self Bond, DMLR-PT-221 (eff. 12/07).

Permittee Consent to Service by Electronic Mail, DMLR-PT-265 (rev. 3/09).

Title of Regulation: 5VAC5-30. Uniform Commercial Code Filing Rules.

FORMS (5VAC5-30)

UCC Financing Statement, Form UCC1, (rev. 5/02).

UCC Financing Statement Addendum, Form UCC1Ad, (rev. 5/02 5/09).

UCC Financing Statement Additional Party, Form UCC1AP, (rev. 5/02).

UCC Financing Statement Amendment, Form UCC3, (rev. 5/02).

UCC Financing Statement Amendment Addendum, Form UCC3Ad, (rev. 7/98).

UCC Financing Statement Amendment Additional Party, Form UCC3AP, (rev. 5/02).

Correction Statement of Claim, Form UCC5, (rev. 5/04 5/09).

National Information Request, Form UCC11, (rev. 5/01).

Title of Regulation: 12VAC5-220. Virginia Medical Care Facilities Certificate of Public Need Rules and Regulations (amending 12VAC5-220-110, 12VAC5-220-200).

Statutory Authority: §§ 32.1-12 and 32.1-102.2 of the Code of Virginia.

Effective Date: November 1, 2009.

Agency Contact: Carrie Eddie, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA 23230, telephone (804) 367-2157, or email carrie.eddy@vdh.virginia.gov.

Summary:

The amendments increase the capital expenditure threshold for projects requiring a certificate of public need as required by § 32.1-102.1 of the Code of Virginia. Section 32.1-202.1 requires annual revision of this amount to reflect inflation. Using the Consumer Price Index recently published by the U.S. Department of Labor, the amendments increase this amount $15,615,000 to $16,083,450.

12VAC5-220-110. Requirements for registration of certain capital expenditures.

At least 30 days before any person contracts to make or is otherwise legally obligated to make a capital expenditure by or on behalf of a medical care facility that is $5 million or more but is less than $15,615,000 $16,083,450 and has not been previously authorized by the commissioner, the owner of any medical care facility as defined in this chapter shall register in writing such expenditure with the commissioner. The format for registration shall include information concerning the purpose of such expenditure and projected impact that the expenditure will have upon the charges for services. For purposes of registration, the owner shall include any person making the affected capital expenditure. See definition of "project."

12VAC5-220-200. One hundred ninety-day review cycle.

The department shall review the following groups of completed applications in accordance with the following 190-day scheduled review cycles and the following descriptions of projects within each group, except as provided for in 12VAC5-220-220.

Title of Regulation: 12VAC5-220. Virginia Medical Care Facilities Certificate of Public Need Rules and Regulations (amending 12VAC5-220-90, 12VAC5-220-105, 12VAC5-220-160, 12VAC5-220-180, 12VAC5-220-210, 12VAC5-220-280, 12VAC5-220-335, 12VAC5-220-345, 12VAC5-220-355, 12VAC5-220-375).

Statutory Authority: §§ 32.1-12 and 32.1-102.2 of the Code of Virginia.

Effective Date: November 1, 2009.

Agency Contact: Carrie Eddie, Policy Analyst, Department of Health, 3600 West Broad Street, Richmond, VA 23230, telephone (804) 367-2157, or email carrie.eddy@vdh.virginia.gov.

Summary:

The amendments conform the regulations to Chapter 175 of the 2009 Acts of Assembly, which comprehensively amended Article 1.1 (§ 32.1-102.1 et seq.) of Chapter 4 of Title 32.1 of the Code of Virginia related to the Certificate of Public Need (COPN) program. The amendments (i) replace the 21 considerations used in making a determination of need with eight modified and abbreviated considerations; (ii) add beds for psychiatric or substance abuse treatment services and the establishment of new psychiatric or substance abuse treatment services to the Request for Applications (RFA) process currently used for distributing nursing facility beds; (iii) extend the expedited review process to certain capital expenditure projects; and (iv) modify the requirements of the annual report. In addition, a technical correction to 12VAC5-220-105 corrects a misquoted statutory citation.

12VAC5-220-90. Annual report.

The Pursuant to § 32.1-102.12 of the Code of Virginia, the commissioner shall annually report to the Governor and the General Assembly on the status of Virginia's certificate of public need program. The report shall be issued by October 1 of each year and shall include, but need not be limited to:

1. A summary of the commissioner's actions during the previous fiscal year pursuant to Virginia's certificate of public need law;

2. A five-year schedule for analysis of all project categories, which provides for the analysis of at least three project categories per year;

3. An analysis of the appropriateness of continuing the certificate of public need program for at least three project categories in accordance with the five-year schedule for analysis of all project categories;

4. An analysis of the effectiveness of the application review procedures used by the regional health planning agencies and the department required by § 32.1-102.6 of the Code of Virginia that details the review time required during the past year for various project categories, the number of contested or opposed applications and the project categories of these contested or opposed projects, the number of applications upon which the regional health planning agencies have failed to act in accordance with the timelines of § 32.1-102.6 B, and the number of deemed approvals from the department because of their failure to comply with the timelines required by § 32.1-102.6 E, and any other data determined by the commissioner to be relevant to the efficient operation of the program;

5. An analysis of health care market reform in the Commonwealth and the extent, if any, to which such reform obviates the need for the certificate of public need program;

6. An analysis of the accessibility by the indigent to care provided by medical care facilities regulated pursuant to Virginia's certificate of public need law;

7. An analysis of the relevance of Virginia's certificate of public need law to the quality of care provided by medical care facilities regulated pursuant to this law; and

8. An analysis of equipment registrations required pursuant to § 32.1-102.1:1, including type of equipment, whether an addition or replacement, and the equipment costs.

12VAC5-220-105. Requirements for registration of the replacement of existing medical equipment.

Within 30 days of any person contracting to make, or otherwise legally obligating to make, a capital expenditure for the replacement of medical equipment or otherwise acquiring replacement medical equipment for the provision of services listed in subdivision 7 of the definition of "project" in 12VAC5-220-10, the person shall register in writing such equipment replacement with the commissioner and the appropriate regional health planning agency. Such registration shall be made on forms provided by the department. The registration shall identify the specific unit of equipment to be replaced and the estimated capital cost of the replacement and shall include documentation that the equipment to be replaced has previously been authorized through issuance of a certificate of public need, registered pursuant to former § 32.1-102.3:4 of the Code of Virginia or exempted pursuant to § 32.1-102.11 of the Code of Virginia as allowed by law.

Part IV
Determination of Public Need (Required Considerations)

12VAC5-220-160. Required considerations.

In determining whether a public need exists for a proposed project, the following factors shall be taken into account when applicable: the applicable requirements of § 32.1-102.2:1 of the Code of Virginia will be considered.

1. The recommendation and the reasons therefor of the appropriate regional health planning agency.

2. The relationship of the project to the applicable health plans of the regional health planning agency and the Board of Health.

3. The relationship of the project to the long-range development plan, if any, of the person applying for a certificate.

4. The need that the population served or to be served by the project has for the project, including, but not limited to, the needs of rural populations in areas having distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to care.

5. The extent to which the project will be accessible to all residents of the area proposed to be served and the effects on accessibility of any proposed relocation of an existing service or facility.

6. The area, population, topography, highway facilities and availability of the services to be provided by the project in the particular part of the health planning region in which the project is proposed, in particular, the distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to care.

7. Less costly or more effective alternate methods of reasonably meeting identified health service needs.

8. The immediate and long-term financial feasibility of the project.

9. The relationship of the project to the existing health care system of the area in which the project is proposed; however, for projects proposed in rural areas, the relationship of the project to the existing health care services in the specific rural locality shall be considered.

10. The availability of resources for the project.

11. The organizational relationship of the project to necessary ancillary and support services.

12. The relationship of the project to the clinical needs of health professional training programs in the area in which the project is proposed.

13. The special needs and circumstances of an applicant for a certificate, such as a medical school, hospital, multidisciplinary clinic, specialty center or regional health service provider, if a substantial portion of the applicant's services or resources or both is provided to individuals not residing in the health planning region in which the project is to be located.

14. The need and the availability in the health planning region for osteopathic and allopathic services and facilities and the impact on existing and proposed institutional training programs for doctors of osteopathy and medicine at the student, internship, and residency training levels.

15. The special needs and circumstances of health maintenance organizations. When considering the special needs and circumstances of health maintenance organizations, the commissioner may grant a certificate for a project if the commissioner finds that the project is needed by the enrolled or reasonably anticipated new members of the health maintenance organizations or the beds or services to be provided are not available from providers which are not health maintenance organizations or from other health maintenance organizations in a reasonable and cost effective manner.

16. The special needs and circumstances for biomedical and behavioral research projects which are designed to meet a national need and for which local conditions offer special advantages.

17. The costs and benefits of the construction associated with the proposed project.

18. The probable impact of the project on the costs of and charges for providing health services by the applicant for a certificate and on the costs and charges to the public for providing health services by other persons in the area.

19. Improvements or innovations in the financing and delivery of health services which foster competition and serve to promote quality assurance and cost effectiveness.

20. In the case of health services or facilities proposed to be provided, the efficiency and appropriateness of the use of existing services and facilities in the area similar to those proposed, including, in the case of rural localities, any distinct and unique geographic, socioeconomic, cultural, transportation, and other barriers to access to care.

21. In the case of proposed health services or facilities, the extent to which a proposed service or facility will increase citizen accessibility, demonstrate documented community support, and introduce institutional competition into a health planning region.

12VAC5-220-180. Application forms.

A. Letter of intent. An applicant shall file a letter of intent with the commissioner to request appropriate application forms, and submit a copy of that letter to the appropriate regional health planning agency, by the later of (i) 30 days prior to the submission of an application for a project included within a particular batch group or (ii) 10 days after the first letter of intent is filed for a project within a particular batch group for the same or similar services and facilities which are proposed for the same planning district or medical service area. The letter shall identify the owner, the type of project for which an application is requested, and the proposed scope (size) and location of the proposed project. The department shall transmit application forms to the applicant within seven days of the receipt of the letter of intent. A letter of intent filed with the department shall be considered void one year after the date of receipt of such letter. (See 12VAC5-220-310 C.)

B. Application fees. The department shall collect application fees for applications that request a certificate of public need. The fee required for an application shall be 1.0% of the proposed expenditure for the project, but not less than $1,000 and no more than $20,000.

No application will be deemed to be complete for review until the required application fee is paid. (See 12VAC5-220-310 C.)

C. Filing application forms. Applications must be submitted at least 40 days prior to the first day of a scheduled review cycle to be considered for review in the same cycle. All applications including the required data and information shall be prepared in triplicate; two copies to be submitted to the department; one copy to be submitted to the appropriate regional health planning agency. In order to verify the date of the department's and the appropriate regional health planning agency's receipt of the application, the applicant shall transmit the document electronically, or prepare in triplicate two copies to be submitted to the department and one copy to be submitted to the appropriate regional health planning agency and sent by certified mail or a delivery service, return receipt requested, or shall deliver the document by hand, with a signed receipt to be provided. No application shall be deemed to have been submitted until required copies have been received by the department and the appropriate regional health planning agency. (See 12VAC5-220-200.)

12VAC5-220-210. Requests for application (RFA).

The commissioner may request the submission of applications for his consideration which address a specific need for services and facilities as identified in the State Medical Facilities Plan. The department shall give notice of such RFA in a newspaper of general circulation in the locality or the planning district where the specific services or facility is requested. Such notice shall be published at least 120 days prior to the first day of the appropriate review cycle for the type of project being requested. A written copy of an RFA shall also be available upon request from the department and the regional health planning agency in the appropriate geographic area. The process for adoption of an RFA by the commissioner for projects other than nursing home bed projects (see 12VAC5-220-325) shall be set forth in the State Medical Facilities Plan listed in § 32.1-102.3:2 A, B, and C of the Code of Virginia are set forth in 12VAC5-220-335.

Part VI
Expedited Review Process

12VAC5-220-280. Applicability.

Projects of medical care facilities Capital expenditures as contained in subdivision 8 of "project" as defined in § 32.1-102.1 of the Code of Virginia or projects that involve relocation at the same site of 10 beds or 10% of the beds, whichever is less, from one existing physical facility to another, when the cost of such relocation is less than $5 million, shall be subject to an expedited review process.

12VAC5-220-335. Request for Applications (RFA).

A. Frequency. The Pursuant to § 32.1-102.3:2 A, B, and C of the Code of Virginia, the commissioner shall periodically issue, in consultation and cooperation with the Department of Medical Assistance Services, a Request for Applications (RFA) from project applicants proposing projects which would result in an increase in the number of beds in which nursing facility or extended care services are provided. An RFA shall be issued at least annually. (See 12VAC5-220-325)

B. Issuance. At least 60 days prior to the issuance of a RFA, the board shall publish the proposed RFA in the Virginia Register for public comment together with an explanation of (i) the regulatory basis for the planning district bed needs set forth in the proposed RFA and (ii) the rationale for the RFA's planning district designations. Any person objecting to the contents of the proposed RFA may notify, within 14 days of the publication, the board and the commissioner of his objection and the objection's regulatory basis. The commissioner shall prepare, and deliver by registered mail, a written response to each such objection within two weeks of the date of receiving the objection. The objector may file a rebuttal to the commissioner's response in writing within five days of receiving the commissioner's response. If objections are received, the board shall, after considering the provisions of the RFA, any objections, the commissioner's responses, and if filed, any written rebuttals of the commissioner's responses, hold a public hearing to receive comments on the specific RFA. Prior to making a decision on the RFA, the commissioner shall consider any recommendations made by the board.

C. Content. A RFA from project applicants proposing projects which would result in an increase in the number of beds in which nursing facility or extended care services are provided shall be based on analyses of the need for increases in the nursing home bed supply in each of Virginia's planning districts in accordance with the applicable standards included in the State Medical Facilities Plan. Such RFAs shall also include a schedule for the review of applications submitted in response to the RFA which allows for at least 120 days between the day on which the RFA is issued and the first day of the review cycle for such applications.

12VAC5-220-345. Limitation on acceptance of nursing home bed RFA applications.

Applications for projects which would result in an increase in the number of beds in which nursing facility or extended care services are provided (see 12VAC5-22-325) listed in § 32.1-102.3:2 A, B, and C of the Code of Virginia shall only be accepted for review when properly filed in response to a RFA. Furthermore, the commissioner shall only accept for review applications which propose projects located in the planning districts from which applications are requested in the RFA and propose authorization of a number of new beds in which nursing facility or extended care services are provided which is less than or equal to the total number of beds identified as needed for the planning district in which the project will be located.

12VAC5-220-355. Application RFA project application forms.

A. Letter of intent. A nursing home bed RFA project applicant shall file a letter of intent with the commissioner to request appropriate application forms, and submit a copy of that letter to the appropriate regional health planning agency by the letter of intent deadline specified in the RFA. The letter shall identify the owner, the type of project for which an application is requested, and the proposed scope (size) and location of the proposed project. The department shall transmit application forms to the applicant within seven days of the receipt of the letter of intent. A letter of intent filed with the department shall be considered void if an application is not filed for the project by the application deadline specified in the RFA.

B. Application fees. The department shall collect application fees for RFA applications that request a nursing home bed certificate of public need. The fee required for an application is 1.0% of the proposed capital expenditure for the project but no less than $1,000 and no more than $20,000. No application will be deemed to be complete for review until the required application fee is paid.

C. Filing application forms. Applications must be submitted to the department and the appropriate regional health planning agency by the application filing deadline specified in the RFA. All applications including the required data and information shall be prepared in triplicate; two copies to be submitted to the department; and one copy to be submitted to the appropriate regional health planning agency. In order to verify the department and the appropriate regional health planning agency's receipt of the application, the applicant shall transmit the document electronically, or prepare in triplicate two copies to be submitted to the department and one copy to be submitted to the appropriate regional health planning agency and sent by certified mail or a delivery service, return receipt requested, or shall deliver the document by hand, with the a signed receipt to be provided. No application shall be deemed to have been submitted until required copies have been received by the department and the appropriate regional health planning agency.

12VAC5-220-375. Consideration of RFA applications.

Nursing home bed RFA applications proposed for the same planning district shall be considered as competing applications by the commissioner. The commissioner shall determine whether an application is competing and provide written notification to the competing applicants and the regional health planning agency.

Title of Regulation: 12VAC35-180. Regulations to Assure the Protection of Subjects in Human Research (amending 12VAC35-180-10 through 12VAC35-180-110, 12VAC35-180-130, 12VAC35-180-140, 12VAC35-180-150).

Statutory Authority: §§ 37.2-203 and 37.2-402 of the Code of Virginia.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: October 28, 2009.

Effective Date: November 12, 2009.

Agency Contact: Marion Greenfield, Office of Quality Management, Department of Behavioral Health and Developmental Services, 1220 Bank Street, Richmond, VA 23218, telephone (804) 786-4516, or email marion.greenfield@co.dmhmrsas.virginia.gov.

Basis: Section 37.2-402 of the Code of Virginia requires that the board adopt regulations regarding human research. The current version of these regulations became effective in 2004.

Purpose: The purpose of the proposed changes in the human research regulations is to eliminate unnecessary review requirements, reflect the department's name change approved by the 2009 General Assembly, and update the regulatory provisions to provide a more person-centered focus.

Rationale for Using Fast-Track Process: Section 2.2-4012.1 of the Code of Virginia and Executive Order 36 (06) allow state agencies to use a fast-track rulemaking process to expedite regulatory changes that are expected to be noncontroversial. The changes being made in the human research regulations eliminate unnecessary review provisions, reflect the department's name change approved by the 2009 General Assembly, and update the regulatory provisions to provide a more person-centered focus. None of these changes are controversial or establish any additional regulatory burdens.

Substance: The proposed amendments make the regulatory language more person-centered, change the department's name, and eliminate requirements that are no longer needed.

Issues: The primary advantages of the proposed changes to the public are: (i) correcting unnecessary and confusing regulatory language; (ii) adjusting section titles and language to clarify the role of the Review Committees; and (iii) eliminating activities that place unnecessary restrictions on the Review Committee and the organization conducting the research.

The primary advantage to the agency is that the proposed changes will: (i) clarify the role of the state board and commissioner; (ii) more clearly describe the department's responsibilities; and (iii) remove the board's review responsibilities.

Other pertinent matters of interest to the regulated community, government officials, and the public include: (i) changing the name of the department; and (ii) adding a requirement that certain agreements now permitted by the regulation between entities conducting research be in writing.

The Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Behavioral Health and Developmental Services proposes to delete its review responsibilities and more clearly describe those of the department and agency head, to make the regulatory language more person-centered, to change the name of the department, and to eliminate selected provisions of the requirements that are no longer needed.

Result of Analysis. There is insufficient data to accurately compare the magnitude of the benefits versus the costs.

Estimated Economic Impact. The Board of Behavioral Health and Developmental Services proposes to delete its review responsibilities and more clearly describe those of the department and agency head, to make the regulatory language more person-centered, to change the name of the department¹, and to eliminate selected provisions of the requirements that are no longer needed.

The above proposed changes are not expected to create a significant economic impact as they mainly clarify the language, update new agency name, and clarify the responsibilities. Thus, no significant economic effect is expected as a result of these proposed changes.

However, the proposed changes also include adding a provision barring officials and employees of the agency conducting or authorizing research from acting as a legally authorized representative for an individual participating in the research; changing the section title for "certification process" to "affiliation with a research review committee" and deleting several requirements contained within this section; mandating that in the case of several cooperating institutions, a lead institution be established and that the agreement designating such institution must be in writing; mandating that written reports of suspension or termination due to protocol violations be provided by the chair of the research review committee to the head of the institution; deleting several designated categories of certain kinds of human research activities that involve no more than minimal risk; modifying the section concerning informed consent to clarify what is required when consent is secured orally; changing the records retention requirement from three to six years; removing a requirement that institutions or agencies notify the agency head or the board annually of their compliance with federal policy.

The changes described above may have the potential to create somewhat significant economic impact, but there is no available information from the department to substantiate the extent of their potential impact.

Businesses and Entities Affected. The proposed regulations apply to 40 community service boards, approximately 612 private providers, and 16 state facilities.

Localities Particularly Affected. The proposed regulations apply throughout the Commonwealth.

Projected Impact on Employment. Based on available information, no significant effect on employment is expected.

Effects on the Use and Value of Private Property. Based on available information, no significant effect on the use and value of private property is expected.

Small Businesses: Costs and Other Effects. Most of the 612 private providers are believed to be small businesses. However, based on available information, no significant costs or other economic effects are expected on small businesses.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Based on available information, no significant adverse impact is expected on small businesses.

Real Estate Development Costs. Based on available information, no significant effect on real estate development costs is expected.

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 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, 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 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.

__________________________

¹ Until July 1, 2009, this agency was known as the Department of Mental Health, Mental Retardation, and Substance Abuse Services. Chapter 813 of the 2009 Acts of Assembly changed the name.

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

Summary:

The proposed amendments delete the Board of Behavioral Health and Developmental Services' review responsibilities and more clearly describe the responsibilities of the department and agency head, make the regulatory language more person-centered, change the name of the department, and eliminate selected provisions of the requirements that are no longer needed.

12VAC35-180-10. Definitions.

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

"Affiliated with the institution" means employed by the institution or a member of a household containing an employee of the institution.

"Board" means the State Mental Health, Mental Retardation and Substance Abuse Services Board of Behavioral Health and Developmental Services.

"Commissioner" means the Commissioner of the Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services.

"Community services board" or "CSB" means a public body established pursuant to § 37.2-501 of the Code of Virginia that provides mental health, mental retardation, and substance abuse services to individuals within each city or county that established it. For the purpose of these regulations, community services board also includes a behavioral health authority established pursuant to § 37.2-602 of the Code of Virginia.

"Department" means the Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services.

"Health information" means any information, whether oral or recorded in any form or medium, that:

1. Is created or received by a health care provider, health plan, public health authority, employer, life insurer, school or university, or health care clearinghouse; and

2. Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual.

"Human research" means any systematic investigation, including research development, testing, and evaluation, utilizing human subjects, that is designed to develop or contribute to generalized knowledge. Human research shall not be deemed to include research exempt from federal research regulation pursuant to 45 CFR 46.101(b).

"Human subject" or "subject" means a living individual about whom an investigator (whether professional or student) conducting research obtains (i) data through intervention or interaction with the individual, or (ii) protected health information.

"Individual" means a human subject pursuant to 45 CFR 46.102 (f) about whom an investigator (whether professional or student) conducting research obtains (i) data through interaction with the individual; or (ii) protected health information.

"Individually identifiable health information" means information that is a subset of health information, including demographic information collected from an individual, and:

1. Is created or received by a health care provider, health plan, employer, or health care clearinghouse; and

2. Relates to the past, present, or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present, or future payment for the provision of health care to an individual; and

a. That identifies the individual; or

b. With respect to which there is a reasonable basis to believe the information can be used to identify the individual.

"Informed consent" means the knowing and voluntary agreement, without undue inducement or any element of force, fraud, deceit, duress, or other form of constraint or coercion, of a person an individual who is capable of exercising free power of choice. For the purposes of human research, the basic elements of information necessary for such consent shall include:

1. A reasonable and comprehensible explanation to the person individual of the proposed procedures or protocols to be followed, and their purposes, including descriptions of any attendant discomforts, risks and benefits reasonably to be expected, how the results of the human research will be disseminated, and how the identity of the individual will be protected;

2. A disclosure of any appropriate alternative procedures or therapies that might be advantageous for the person individual together with their side effects, risks, and benefits;

3. A description of any adverse consequences and risks to be expected and an indication whether there may be other significant risks not yet identified;

4. An instruction that the person individual may withdraw his consent and discontinue participation in the human research at any time without prejudice to him or fear of reprisal;

5. An explanation of any costs or compensation that may accrue to the person individual and, if applicable, the availability of third party reimbursement for the proposed procedures or protocols or any medical care that may be available if an injury occurs; and;

6. An offer to answer and answers to any inquiries by the person individual or, if applicable, his legally authorized representative concerning the procedures and protocols and a description of the ways in which concerns may be raised or questions asked;

"Institution" or "agency" means any community services board or any facility or program operated, funded, or licensed by the department.

"Interaction" includes communication or interpersonal contact between investigator and the individual who is the subject of the human research.

"Intervention" includes both physical procedures by which data are gathered (for example, venipuncture) and manipulations of the subject individual or subject's individual's environment that are performed for human research purposes.

"Legally authorized representative" means in the following specified order of priority, (i) the parent or parents having custody of an individual who is a prospective subject of human research who is a minor, (ii) the agent appointed under an advance directive as defined in § 54.1-2982 of the Code of Virginia, executed by the individual who is the prospective subject of human research, provided the advance directive authorizes the agent to make decisions regarding the prospective subject's individual's participation in human research, (iii) the legal guardian of an individual who is a prospective subject of human research, (iv) the spouse of individual who is a prospective subject of human research, except where a suit for divorce has been filed and the divorce decree is not yet final, (v) an adult child of the an individual who is a prospective subject of human research, (vi) a parent of the individual who is a prospective subject of human research when the subject individual is an adult, (vii) an adult brother or sister of the individual who is a prospective subject of human research, or (viii) any person or judicial or other body authorized by law or regulation to consent on behalf of an individual who is a prospective subject of human research to such subject's individual's participation in the particular human research. For the purposes of this definition, any person authorized by law or regulation to consent on behalf of an individual who is a prospective subject of human research to his participation in the particular human research shall include an attorney-in-fact appointed under a durable power of attorney, to the extent the power grants the authority to make such a decision. The attorney-in-fact shall not be employed by the person, institution or agency conducting the human research. No official or employee of the institution or agency conducting or authorizing the human research shall be qualified to act as a legally authorized representative.

"Minimal risk" means that the risks of harm anticipated in the proposed human research are not greater, considering probability and magnitude, than those ordinarily encountered in daily life or during the performance of routine physical or psychological examinations, tests, or treatments.

"Nontherapeutic research" means human research in which there is no reasonable expectation of direct benefit to the physical or mental condition of the human subject individual.

"Protected health information (PHI)" means individually identifiable health information that is created or received by or on behalf of the institution or agency that is maintained or transmitted in any medium, including electronic media. PHI excludes individually identifiable health information in:

1. Education records covered by the Family Educational Rights and Privacy Act, as amended, 20 USC § 1232g;

2. Records described at 20 USC § 1232g(a)(4)(B)(iv) (educational records not otherwise covered under the Family Educational Rights Privacy Act in subdivision 1 of this definition); or

3. Employment records held by a covered entity in its role as an employer.

"Research" means a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to general knowledge. Activities which meet this definition constitute research for purposes of this chapter, whether or not they are supported or funded under a program which is considered research for other purposes. For example, some "demonstration" and "service" programs may include research activities.

"Research review committee" or "committee" means a committee of professionals to provide complete and adequate review of human research activities pursuant to § 32.1-162.19 of the Code of Virginia.

12VAC35-180-30. Applicability.

This chapter shall apply to the Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services, any community services board, and any facility operated, funded or licensed by the department which conducts or which proposes to conduct or authorize human research in which uses individuals participate as human subjects.

12VAC35-180-40. Policy.

A. No human research may be conducted without obtaining the informed consent of the subject individual or his legally authorized representative. The This informed consent of the subject or his legally authorized representative to participate in the research must shall be documented in writing and supported by the signature of a witness. Arrangements Adequate and appropriate arrangements shall be made for those who need special assistance in understanding the consequences of participating in the human research.

B. No official or employee of the institution or agency conducting or authorizing the human research shall be qualified to act as a legally authorized representative for an individual participating in the particular human research.

C. Each human research activity shall be approved by a research review committee composed of representatives of varied backgrounds who shall assure the competent, complete, and professional review of human research activities.

C. D. Institutions or agencies, as defined by this chapter, may participate in human research activity when such activity has been considered and approved by a university institutional review board (IRB) that complies with the relevant requirements of § 32.1-162.19 of the Code of Virginia.

D. E. Nontherapeutic human research using subjects individuals receiving care services in a residential or hospital setting is prohibited unless it is determined by the research review committee that such nontherapeutic human research will present no more than a minor increase over minimal risk to the human subject individual.

E. F. The individual person, institution, or agency conducting the human research shall be required to notify all individuals who are subjects of the human research of the risks caused by the human research which that are discovered after the human research has concluded.

12VAC35-180-50. Certification process Affiliation with a research review committee.

A. Institutions or agencies seeking to conduct or sponsor human research are required to submit statements to the department assuring that all human research activities will be reviewed and approved by an internal or external research review committee. Institutions shall report annually to the commissioner giving assurance that a committee exists and is functioning. These reports shall include a list of committee members, their qualifications for service on the committee, their institutional or agency affiliation and a copy of the minutes of committee meetings.

B. Prior to the initiation of a human research project, institutions shall also send to the commissioner a description of the research project to be undertaken, which shall include a statement of the criteria for inclusion of a subject in the research project, a description of what will be done to the subjects, and a copy of the informed consent statement.

C. Each person engaged in the conduct of human research or proposing to conduct human research shall affiliate himself with an institution or agency having a research review committee, and such the human research as he conducts or proposes to conduct shall be subject to review and approval by the committee in the manner set forth in these regulations.

D. The commissioner may inspect the records of the committee.

E. The chairman of the committee shall report as soon as possible to the head of the institution and to the commissioner any violation of the research protocol which led the committee to either suspend or terminate the research.

12VAC35-180-60. Composition of research review committees.

A. Each research review committee shall have at least five members, appointed by the head of the institution or agency, with varying backgrounds to ensure the competent, complete and professional review of human research activities commonly conducted by the institution or agency. The committee shall be sufficiently qualified through the maturity, experience, and diversity of its members, including consideration of race, gender and cultural background, to promote respect for its advice and counsel in safeguarding the rights and welfare of individuals who are the subjects in of human research. In addition to possessing the professional competence necessary to review specific human research activities, the committee must be able to ascertain the acceptability of applications and proposals in terms of institutional commitments and regulations, applicable law, standards of professional conduct and practice, and community attitudes. If a committee regularly reviews human research that has an impact on an individuals who are institutionalized or other are otherwise vulnerable category of subjects, including residents of individuals who reside in mental health or mental retardation facilities or state training centers, the committee shall have in its membership one or more individuals persons who are primarily concerned with the welfare of these subjects individuals and who have appropriate experience to serve in that capacity.

B. No committee shall consist entirely of members of one profession, and at least one member must shall be an individual a person whose primary concerns are in nonscientific areas (e.g., lawyers, ethicists, members of the clergy).

C. Each committee shall include at least one member who is not otherwise affiliated with the institution or agency and who is not part of the immediate family of a person who is affiliated with the institution or agency.

D. No member of a committee shall participate in the committee's initial or continuing review of any project in which the member is directly involved or for which he has administrative approval authority, except to provide information requested by the committee. The committee has responsibility shall be responsible for determining whether a member has a conflicting interest. The committee member shall be replaced in the case of conflicting interests resulting in a decrease of the committee below five persons.

E. A committee may, at its discretion, invite individuals with competence in special areas to assist in the review of complex issues which require expertise beyond or in addition to that available on the committee. These individuals may not vote with the committee.

F. A quorum of the committee shall consist of a majority of its members including at least one member whose primary concerns are in nonscientific areas.

G. The committee and the institution or agency shall establish procedures and rules of operation necessary to fulfill the requirements of this chapter.

12VAC35-180-70. Elements of each committee's review process.

A. No human research shall be conducted or authorized by such an institution or agency unless the a research review committee has reviewed and approved the proposed human research project giving consideration to:

1. The adequacy of the description of the potential benefits and risks involved and the adequacy of the methodology of the human research;

2. The degree of the risk, and, if the human research is nontherapeutic, whether it presents greater than minimal risk;

3. Whether the rights and welfare of the individuals who are the subjects of the human research are adequately protected;

4. Whether the risks to the individuals who are the subjects of human research are outweighed by the potential benefits to them;

5. Whether the risks to subjects individuals are minimized by using procedures that are consistent with sound human research design and that do not unnecessarily expose subjects individuals to risk and, whenever appropriate, by using procedures already being performed on the subjects individuals for diagnostic or treatment purposes;

6. When some or all of the subjects individuals are likely to be incapable of providing informed consent or are otherwise vulnerable to coercion or undue influence, such as children, prisoners, pregnant women, mentally disabled persons, or economically or educationally disadvantaged persons, whether additional safeguards have been included in the study to protect the rights and welfare of these subjects individuals;

7. Whether the informed consent is to be obtained by methods that are adequate and appropriate and whether the written consent form is adequate and appropriate in both content and language for the particular human research and for the individuals who are the particular subjects of the human research;

8. Whether the persons proposing to supervise or conduct the particular human research are appropriately competent and qualified;

9. Whether criteria for selection of individuals to participate as human research subjects are equitable; and

10. Whether the human research conforms with such other requirements as the board may establish of the department, where applicable.

B. Each committee shall review approved projects to ensure conformity with the approved proposal at least annually.

C. Research must be approved by the committee that has jurisdiction over the subject. When cooperating institutions conduct some or all of the human research involving some or all of the subjects individuals, each cooperating institution is responsible for safeguarding the rights and welfare of human subjects the individuals and for complying with this chapter, except that in complying with this chapter institutions may enter into joint review, rely upon the review of another qualified committee, or make come to similar arrangements agreements aimed at avoiding duplication of effort. These agreements must be in writing and designate a lead institution, which shall be the institution responsible for reporting and dealing with possible misconduct in human research. Such arrangements agreements may be made by the committee chairperson chair with the approval of a majority of the members present at a meeting of the committee. If a given institution or agency does not have a research review committee, this arrangement shall be approved by the chief executive officer of the institution, or his designee.

D. The committee shall consider human research proposals within 45 days after submission to the committee's chairman chair. In order for the human research to be approved, it shall receive the approval of a majority of those members present, including one nonscientific person, at a meeting in which a quorum exists. A committee shall notify investigators and the institution in writing of its decision to approve or disapprove the proposed human research activity, or of modifications required to secure committee approval.

E. The committee shall develop a written description of the procedure to be followed by a subject an individual who has a complaint about a human research project in which he is participating or has participated.

F. Any subject individual who has a complaint about a human research project in which he is participating or has participated shall be referred to the chairperson of the committee who shall refer it to the committee to determine if there has been a violation of the protocol.

G. The chair of the committee shall provide a written report as soon as possible to the head of the institution of any violation of the human research protocol that led the committee to either suspend or terminate the human research.

G. H. The committee shall require periodic written reports to ensure that the project is being carried out in conformity with the proposal. The frequency of such reports should reflect the nature and degree of risk of each human research project.

H. I. The committee shall ensure compliance with the Health Insurance Portability and Accountability Act of 1996 (Public Law 104-19 104-191) and the federal and state regulations promulgated thereunder regarding the use and disclosure of PHI created for human research. In particular, authorization shall be obtained for the use and disclosure of PHI created for the purpose of human research, except as otherwise permitted by 45 CFR 164.512(i).

12VAC35-180-80. Kinds of human research exempt from committee review.

Research Human research activities in which the only involvement of human individuals as subjects will be in is limited to one or more of the following categories are exempt from this chapter unless the human research is covered by other sections of this chapter:

1. Research Human research conducted in established or commonly accepted educational settings, involving commonly used educational practices, such as:

a. Research on regular and special education instructional strategies; or

b. Research on the effectiveness of or the comparison among instructional techniques, curriculum or classroom management methods.

2. Research Human research involving solely the use and analysis of the results of educational tests, whether cognitive, diagnostic, aptitude, or achievement, if the data from such tests are recorded in such a manner so that subjects individuals cannot be identified, directly or through identifiers linked to the subjects individuals.

3. Research Human research involving survey or interview procedures, unless responses are recorded in such a manner that the subjects individuals can be identified, directly or through identifiers linked to the subjects individuals; and either:

a. The subject's individual's responses, if they became known outside the human research, could reasonably place the subject at risk of criminal or civil liability or be damaging to the subject's individual's financial standing, employability, or reputation; or

b. The human research deals with sensitive aspects of the subject's individual's own behavior, such as sexual behavior, drug or alcohol use, or illegal conduct.

4. Research Human research involving solely the observation (including observation by subjects) individuals who are the subjects of human research) of public behavior, unless observations are recorded in such a manner that subjects individuals can be identified, directly or through identifiers linked to the subjects individuals, and either:

a. The observations recorded about the individual, if they became known outside the human research, could reasonably place the subject individual at risk of criminal or civil liability or be damaging to the subject's individual's financial standing, or employability, or reputation; or

b. The human research deals with sensitive aspects of the subject's individual's own behavior such as sexual behavior, drug or alcohol use, or illegal conduct.

5. Research Human research involving solely the collection or study of existing data, documents, records, or pathological or diagnostic specimens, if these sources are publicly available or if the information taken from these sources is recorded in such a manner that subjects individuals cannot be identified, directly or through identifiers linked to the subjects individuals.

6. Research Human research involving solely a combination of any of the activities described in this section.

12VAC35-180-90. Expedited review procedures for certain kinds of human research involving no more than minimal risk.

A. The A research review committee may conduct an expedited review of a human research project which that involves no more than minimal risk to the individuals who are the subjects of the human research if (i) another institution's or agency's human research review committee has reviewed and approved the project, or (ii) the review involves only minor changes in previously approved human research and the changes occur during the approved project period. Under an expedited review procedure, the review may be carried out by the committee chairperson chair and one two or more experienced reviewers designated by the chairperson chair from among members of the committee. In reviewing the human research, the reviewers may exercise all of the authority of the committee except that the reviewers may not disapprove the human research. A human research activity may be disapproved only after review in accordance with the nonexpedited procedure set forth in 12VAC35-180-70.

B. Each committee which uses an expedited review procedure shall adopt a method for keeping all members advised of human research proposals which have been approved under the procedure.

C. Research activities involving no more than minimal risk and in which the only involvement of human subjects will be in one or more of the following categories (carried out through standard methods) may be reviewed by the research review committee through the expedited review procedure.

1. Collection of hair and nail clippings, in a nondisfiguring manner; nonpermanent teeth at a time of natural loss or if patient care indicates a need for extraction; and permanent teeth if patient care indicates a need for extraction.

2. Collection of excreta and external secretions including sweat, uncannulated saliva, placenta removed at delivery, and amniotic fluid at the time of rupture of the membrane prior to or during labor.

3. Recording of data from subjects 18 years of age or older using noninvasive procedures routinely employed in clinical practice. This includes the use of physical sensors that are applied either to the surface of the body or at a distance and do not involve input of matter or significant amounts of energy into the subject or an invasion of the subject's privacy. It also includes such procedures as weighing, testing sensory acuity, electrocardiography, electroencephalography, thermography, detection of naturally occurring radioactivity, diagnostic echography, and electroretinography. It does not include exposure to electromagnetic radiation outside the visible range (for example, x-rays, microwaves).

4. Collection of blood samples by venipuncture or less invasive procedures, in amounts not exceeding 450 milliliters in an eight-week period and no more often than two times per week, from subjects 18 years of age or older and who are in good health and not pregnant.

5. Collection of both supra-gingival and subgingival dental plaque and calculus, provided the procedure is not more invasive than routine prophylactic scaling of the teeth and the process is accomplished in accordance with accepted prophylactic techniques.

6. Voice recordings made for research purposes such as investigations of speech defects.

7. Moderate exercise by healthy volunteers.

8. The study of existing data, documents, records, pathological specimens, or diagnostic specimens.

9. Research on individual or group behavior or characteristics of individuals, such as studies of perception, cognition, game theory, or test development, where the investigator does not manipulate subjects' behavior and the research will not involve stress to subjects.

10. Research on drugs or devices for which an investigational new drug exemption or an investigational device exemption is not required.

12VAC35-180-100. Informed consent.

A. No human research may shall be conducted in this Commonwealth in the absence of informed consent subscribed to in writing by the subject individual or by the subject's legally individual's authorized representative except as provided for in subsection F of this section. If the subject individual is capable of providing informed consent, then it shall be subscribed to in writing written consent must be provided by the subject individual and witnessed. If the subject individual is incapable of making an informed decision, as defined in § 54.1-2982 of the Code of Virginia, at the time consent is required, then it shall be subscribed to in writing written consent must be provided by the person's legally individual's legally authorized representative and witnessed. If the subject individual is a minor otherwise capable of rendering informed consent, the consent shall be subscribed to provided by both the minor and his legally authorized representative. An investigator shall seek such consent only under circumstances that provide the individual who is the prospective subject or the representative sufficient opportunity to consider whether or not to participate and that minimize the possibility of coercion or undue influence. The information that is given to the subject individual or, if applicable the individual's legally authorized representative shall be in language understandable to the subject individual or the representative.

If two or more persons who qualify as legally authorized representatives have equal decision-making priority under this chapter inform the principal investigator or attending physician that they disagree as to participation of the prospective subject individual in human research, the subject individual shall not be enrolled in the human research that is the subject of the consent.

B. No individual shall participate in human research unless this requirement is met for each individual. The giving of informed consent by a legally an authorized representative shall be subject to the provisions of subsection C of this section. No informed consent shall include any language through which the subject individual waives or appears to waive any of his legal rights, including any release of any individual person, institution, or agency or any agents thereof from liability for negligence. Notwithstanding the informed consent by a legally authorized representative, no person individual shall be forced to participate in any human research if the investigator conducting the human research knows that participation in the human research is protested by the prospective subject individual. In the case of persons individuals suffering from organic brain disease causing progressive deterioration of cognition for which there is no known cure or medically accepted treatment, the implementation of experimental courses of therapeutic treatment to which the legally authorized representative has given informed consent shall not constitute the use of force. Each subject individual shall be given a copy of the signed consent form required by 12VAC35-180-40 A except as provided for in subsection F of this section.

C. No legally authorized representative may consent to nontherapeutic human research unless it is determined by the research review committee that such nontherapeutic human research will present no more than a minor increase over minimal risk to the subject individual. A legally authorized representative may not consent to participation in human research on behalf of a prospective subject an individual if the legally authorized representative knows, or upon reasonable inquiry ought to know, that any aspect of the human research protocol is contrary to the religious beliefs or basic values of the prospective subject individual, whether expressed orally or in writing. A legally authorized representative may not consent to participation in human research involving nontherapeutic sterilization, abortion, psychosurgery, or admission for human research purposes to a facility or hospital as defined in § 37.1-1 § 37.2-100 of the Code of Virginia. No nontherapeutic human research shall be performed without the consent of the subject individual or, if applicable, his legally authorized representative.

D. The research review committee may approve a consent procedure which that does not include, or which that alters some or all of the elements of informed consent set forth in 12VAC35-180-10, or waive that waives the requirements to obtain informed consent provided the committee finds and documents that:

1. The human research involves no more than minimal risk to the subjects individuals;

2. The omission, waiver or alteration will not adversely affect the rights and welfare of the subjects individuals;

3. The human research could not practicably be carried out without the omission, waiver or alteration; and

4. Whenever appropriate, the subjects individuals shall be provided with additional pertinent information after participation.

E. Except as provided in subsection F of this section, the consent form may be either of the following:

1. E. A written consent document that embodies the elements of informed consent required by 12VAC35-180-10. This form may be read to the subject individual or, if applicable, the subject's individual's legally authorized representative, but in any event, the investigator shall give either the subject individual or the legally authorized representative adequate opportunity to read it before it is signed; or.

2. A short form written consent document stating that the elements of informed consent required by 12VAC35-180-10 have been presented orally to the subject or the subject's legally authorized representative. When this method is used, there shall be a witness to the oral presentation. Also, the committee shall approve a written summary of what is to be said to the subject or the legally authorized representative. Only the short form itself is to be signed by the subject or the representative. However, the witness shall sign both the short form and a copy of the summary, and the person actually obtaining consent shall sign a copy of the summary. A copy of the summary shall be given to the subject or the representative, in addition to a copy of the short form.

F. The committee may waive the requirement in subsection E of this section for the investigator to obtain a written informed consent form for some or all subjects individuals if it finds that the only record linking the subject individual and the human research would be the consent document and the principal risk would be potential harm resulting from a breach of confidentiality. Each subject individual shall be asked whether the subject individual wants documentation linking the subject individual with the human research, and the subject's individual's wishes shall govern. In cases where the documentation requirement is waived, the committee may require the investigator to provide subjects individuals with a written statement explaining the human research.

12VAC35-180-110. Committee records.

A. An institution or agency, or when appropriate a committee shall prepare and maintain adequate documentation of committee activities, including the following:

1. Copies of all human research proposals reviewed, scientific evaluations, if any, that accompany the proposals, approved sample consent documents, progress reports submitted by investigators, and reports of injuries to individuals who are subjects of the human research.

2. Minutes of committee meetings which shall be in sufficient detail to show attendance at the meetings; actions taken by the committee; the vote on these actions including the number of members voting for, against, and abstaining; the basis for requiring changes in or disapproving human research; and a written summary of the discussion of controverted issues about which opposition has been voiced and their resolution.

3. Records of continuing review activities.

4. Copies of all correspondence between the committee and the investigators.

5. A list of committee members.

6. Written procedures for the committee.

7. Statements of significant new findings provided to subjects individuals.

B. The records required by this chapter shall be retained for at least three years, and records relating to human research which is conducted shall be retained for at least three six years after completion of the human research. All records shall be accessible for inspection and copying by authorized employees or agents of the department at reasonable times and in a reasonable manner. An overview of approved human research projects and the results of such projects shall be made public on the website of the institution or agency conducting the human research unless otherwise exempt from disclosure under the Virginia Freedom of Information Act, (§ 2.2-3700 et seq. of the Code of Virginia).

12VAC35-180-130. Role of the department, and commissioner, and the board.

A. The commissioner shall establish and maintain records of institutional assurances, annual reports, and summary descriptions of research projects to be reviewed by the board.

B. The commissioner shall review communications from committees reporting violations of research protocols which led to suspension or termination of the research to ensure that appropriate steps have been taken for the protection of the rights of human research subjects. The board shall be kept informed.

C. The commissioner shall arrange for the printing and dissemination of copies of this chapter.

The commissioner shall assure that the department's human rights program, through procedures described in 12VAC35-115, protects the rights of individuals who are admitted to a state hospital, training center, or other facility operated, funded, or licensed by the department to refuse to participate as a subject of human research and assure that written and informed consent is received from individuals or their legally authorized representative prior to their participation as a subject of human research.

12VAC35-180-140. Applicability of state policies.

Nothing in this chapter shall be construed as limiting in any way the rights of subjects individuals in human research under regulations promulgated by the board State Board of Behavioral Health and Developmental Services pursuant to § 37.1-84.1 § 37.2-400 of the Code of Virginia.

12VAC35-180-150. Applicability of federal policies.

Human research at institutions or agencies which are subject to policies and regulations for the protection of human subjects individuals promulgated by any agency of the federal government shall be exempt from this chapter. Such institutions or agencies shall notify the commissioner and the board annually of their compliance with the policies and regulations of federal agencies.

Title of Regulation: 13VAC5-31. Virginia Amusement Device Regulations (amending 13VAC5-31-20, 13VAC5-31-50, 13VAC5-31-75).

Statutory Authority: § 36-98.3 of the Code of Virginia.

Public Hearing Information:

January 25, 2010 - 10 a.m. - Virginia Housing Development Authority, Virginia Housing Center, 4224 Cox Road, Glen Allen, VA

Public Comment Deadline: January 25, 2010.

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

Summary:

The proposed amendments:

1. Move the definition of the term "kiddie ride" to the definitions section;

2. Clarify existing continuing education requirements in conjunction with correlating changes to the Uniform Statewide Building Code;

3. Conform liability insurance requirements for amusement devices with industry standards and for consistency with language used in prior provisions in the regulation;

4. To correct an error made in a previous regulatory action, reinstate language that specifies that 13VAC5-31-75 F applies only to amusement devices permanently affixed to a site and the requirement for midseason inspection of rides; and

5. Correct an erroneous standard designation from ASTM F628 to ASTM F698.

13VAC5-31-20. Definitions.

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

"Amusement device" means (i) a device or structure open to the public by which persons are conveyed or moved in an unusual manner for diversion and (ii) passenger tramways.

"Bungee cord" means the elastic rope to which the jumper is attached which lengthens and shortens to produce a bouncing action.

"Carabineer" means a shaped metal device with a gate used to connect sections of a bungee cord, jump rigging, equipment, or safety gear.

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

"Gravity ride" means a ride that is installed on an inclined surface, which depends on gravity for its operation to convey a passenger from the top of the incline to the bottom, and which conveys a passenger in or on a carrier tube, bag, bathing suit, or clothes.

"Ground operator" means a person who assists the jump master to prepare a jumper for jumping.

"Harness" means an assembly to be worn by a bungee jumper to be attached to a bungee cord. It is designed to prevent the wearer from becoming detached from the bungee system.

"Jump master" means a person who has responsibility for the bungee jumper and who takes the jumper through the final stages to the actual jump.

"Jump zone" means the space bounded by the maximum designed movements of the bungee jumper.

"Jumper" means the person who departs from a height attached to a bungee system.

"Kiddie ride" means an amusement device where the passenger or patron height is limited to 54 inches or less, the design capacity of passengers or patrons is 12 or less, and the assembly time for the device is two hours or less.

"Landing area" means the surface area of ground or water directly under the jump zone, the area where the lowering device moves the bungee jumper to be landed away from the jump space and the area covered by the movement of the lowering device.

"Local building department" means the agency or agencies of the governing body of any city, county or town in this Commonwealth charged with the enforcement of the USBC.

"Operating manual" means the document that contains the procedures and forms for the operation of bungee jumping equipment and activity at a site.

"Passenger tramway" means a device used to transport passengers uphill, and suspended in the air by the use of steel cables, chains or belts, or ropes, and usually supported by trestles or towers with one or more spans.

"Platform" means the equipment attached to the structure from which the bungee jumper departs.

"Private inspector" means a person performing inspections who is independent of the company, individual or organization owning, operating or having any vested interest in an amusement device being inspected.

"Ultimate tensile strength" means the greatest amount of load applied to a bungee cord prior to failure.

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

B. Words and terms used in this chapter which are defined in the USBC shall have the meaning ascribed to them in that regulation unless the context clearly indicates otherwise.

C. Words and terms used in this chapter which are defined in the standards incorporated by reference in this chapter shall have the meaning ascribed to them in those standards unless the context clearly indicates otherwise.

13VAC5-31-50. Certification of amusement device inspectors.

A. Any person, including local building department personnel, inspecting an amusement device relative to a certificate of inspection shall possess a valid certificate of competence certification as an amusement device inspector from the Virginia Board of Housing and Community Development in accordance with the Virginia Certification Standards (13VAC5-21).

B. Local building department personnel enforcing this chapter and private inspectors shall attend 16 hours every two years of continuing education and periodic maintenance training courses approved or required as designated by DHCD. Additional In addition to the periodic maintenance training required above, local building department personnel and private inspectors shall attend 16 hours of continuing education hours shall not be required if more than one every two years as approved by DHCD. If local building department personnel or private inspectors possess more than one BHCD certificate is held, the 16 hours shall satisfy the continuing education requirement for all BHCD certificates.

Part II
Enforcement, Permits and Certificates of Inspection

13VAC5-31-75. Local building department.

A. In accordance with §§ 36-98.3 and 36-105 of the Code of Virginia, the local building department shall be responsible for the enforcement of this chapter and may charge fees for such enforcement activity. The total amount charged for any one permit to operate an amusement device or devices or the renewal of such permit shall not exceed the following, except that when a private inspector is used, the fees shall be reduced by 50%:

1. $25 for each kiddie ride covered by the permit;

2. $35 for each circular ride or flat-ride less than 20 feet in height covered by the permit;

3. $55 for each spectacular ride covered by the permit that cannot be inspected as a circular ride or flat-ride in subdivision 2 of this subsection due to complexity or height; and

4. $150 for each coaster covered by the permit that exceeds 30 feet in height.

B. Notwithstanding the provisions of subsection A of this section, when an amusement device is constructed in whole or in part at a site for permanent operation at that site and is not intended to be disassembled and moved to another site, then the local building department may utilize permit and inspection fees established pursuant to the USBC to defray the cost of enforcement. This authorization does not apply to an amusement device that is only being reassembled, undergoing a major modification at a site or being moved to a site for operation.

C. A permit application shall be made to the local building department at least five days before the date in which the applicant intends to operate an amusement device. The application shall include the name of the owner, operator or other person assuming responsibility for the device or devices, a general description of the device or devices including any serial or identification numbers available, the location of the property on which the device or devices will be operated and the length of time of operation. The permit application shall indicate whether a private inspector will be utilized. If a private inspector is not utilized, the applicant shall give reasonable notice when an inspection is sought and may stipulate the day such inspection is requested provided it is during the normal operating hours of the local building department. In addition to the information required on the permit application, the applicant shall provide proof of liability insurance of an amount not less than $100,000 per person and $1,000,000 in the aggregate for each amusement device insuring the owner or operator against liability for injury suffered by persons riding the amusement device or by persons in, on, under or near the amusement device; per occurrence or proof of equivalent financial responsibility. The local building department shall be notified of any change in the liability insurance or financial responsibility during the period covered by the permit.

D. Notwithstanding the provisions of subsection C of this section, a permit application is not required for a kiddie ride in which the passenger height is 54 inches or less, the design capacity is for 12 passengers or less and that can be assembled in two hours or less, provided the kiddie ride that has an unexpired certificate of inspection issued by any local building department in this Commonwealth. In such cases, the local building department shall be notified prior to the operation of the kiddie ride and the information required on a permit application as listed in subsection C of this section shall be provided to the local building department.

E. Local building department personnel shall examine the permit application within five days and issue the permit if all requirements are met. A certificate of inspection for each amusement device shall be issued when the device has been found to comply with this chapter by a private inspector or by an inspector from the local building department. It shall be the responsibility of the local building department to verify that the private inspector possesses a valid certificate of competence as an amusement device inspector from the Virginia Board of Housing and Community Development. In addition, local building department personnel shall be responsible for assuring that the certificate of inspection is posted or affixed on or in the vicinity of the device in a location visible to the public. Permits shall indicate the length of time the device or devices will be operated at the site, clearly identify the device or devices to which it applies and the date of expiration of the permit. Permits shall not be valid for longer than one year.

F. In addition to obtaining a certificate of inspection in conjunction with a permit application for amusement devices permanently fixed to a site, a new certificate of inspection shall also be obtained prior to the operation of an amusement device following a major modification, prior to each seasonal operation of a device, at least once during the operating season and prior to resuming the operation of a device following an order from a local building department to cease operation. This requirement shall not apply to kiddie rides meeting the conditions outlined in subsection D of this section.

G. For amusement devices manufactured prior to 1978, the owner or operator shall have the information required by §§ 2.1 through 2.6 of ASTM F628 F698 available at the time of inspection. In addition, the operator of any amusement device shall be responsible for obtaining all manufacturer's notifications, service bulletins and safety alerts issued pursuant to ASTM F853 and the operator shall comply with all recommendations and requirements set out in those documents. A copy of all such documents shall be made available during an inspection.

H. In the enforcement of this chapter, local building department personnel shall have authority to conduct inspections at any time an amusement device would normally be open for operation or at any other time if permission is granted by the owner or operator, to issue an order to temporarily cease operation of an amusement device upon the determination that the device may be unsafe or may otherwise endanger the public and to accept and approve or deny requests for modifications of the rules of this chapter in accordance with the modification provisions of the USBC.

Title of Regulation: 13VAC5-51. Virginia Statewide Fire Prevention Code (amending 13VAC5-51-21, 13VAC5-51-81, 13VAC5-51-85, 13VAC5-51-130, 13VAC5-51-132, 13VAC5-51-133, 13VAC5-51-135, 13VAC5-51-145, 13VAC5-51-150, 13VAC5-51-155; repealing 13VAC5-51-143).

Statutory Authority: § 27-97 of the Code of Virginia.

Public Hearing Information:

January 25, 2010 - 10 a.m. - Virginia Housing Development Authority, Virginia Housing Center, 4224 Cox Road, Glen Allen, VA

Public Comment Deadline: January 25, 2010.

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

Summary:

The Virginia Statewide Fire Prevention Code (SFPC) is a regulation governing the maintenance of fire safety features in existing buildings and structures and fire-safety related operations on property. The SFPC incorporates by reference the International Fire Code (IFC), a nationally recognized model code produced by the International Code Council as a companion code to that used under the Virginia Uniform Statewide Building Code (13VAC5-63). Every three years, a new edition of the model code becomes available. At that time, the Board of Housing and Community Development initiates a regulatory action to incorporate the newer edition of the model code into the regulation through a proposed regulation.

Specific changes in the proposed regulation are:

1. 13VAC5-51-21 E and H: Changes made due to the new chapter numbering in the 2009 edition of the IFC, which is the new edition of the IFC being incorporated into the SFPC and to a provision in the USBC that is being renumbered in a correlating regulatory amendment action.

2. 13VAC5-51-31: Updates the reference to the IFC from the 2006 to the 2009 edition, which is the new nationally recognized model code used in the SFPC.

3. 13VAC5-51-81: Changes fee provisions to match state law in accordance with § 27-97 of the Code of Virginia. As the catchline was formerly entitled only "Permits," there was confusion over whether separate fees could be charged for appeals even though state law clearly provides for such separate fees.

4. 13VAC5-51-85: Deletes the requirements for construction permits and retains the requirements for operational permits. The construction permit requirements were inserted under a prior regulatory action in an attempt to correlate with when permits are needed under the USBC to assist persons enforcing the SFPC in existing buildings when discovering work that needed a permit under the USBC, so that the local building department responsible for enforcement of the USBC could be notified. The requirement is being removed as the permit requirements of the USBC change frequently thus making amendments to this regulation necessary to remain consistent with the USBC.

5. 13VAC5-51-130 A and C: Changes subsection A to correlate with the same definition in the USBC and moves the group classifications from a parenthetical reference to the text of the definition. The change to subsection C deletes the definition of the term "canopy" to correlate with changes made to the IFC to eliminate the need for the definition. Canopies are now regulated under the USBC and only tents are regulated under the SFPC.

6. 13VAC5-51-132, 13VAC5-51-133 and 13VAC5-51-135: Changes to match the new numbering in the 2009 edition of the IFC.

7. 13VAC5-51-143: Repealed because there were amendments to the 2006 edition of the IFC that are now incorporated into the 2009 IFC, thereby making the changes to the IFC unnecessary.

8. 13VAC5-51-145, 13VAC5-51-150 and 13VAC5-51-155: Changes to correlate with changes in the IFC from the 2006 to the 2009 edition; no substantive changes are made.

13VAC5-51-21. Section 102.0. Applicability.

A. 102.1. General: The provisions of the SFPC shall apply to all matters affecting or relating to structures, processes and premises as set forth in Section 101.0. The SFPC shall supersede any fire prevention regulations previously adopted by a local government or other political subdivision.

B. 102.1.1. Changes: No change shall be made in the use or occupancy of any structure that would place the structure in a different division of the same group of occupancies, unless such structure is made to comply with the requirements of this code and the USBC.

C. 102.2. Application to pre-1973 buildings and structures: Buildings and structures constructed prior to the USBC (1973) shall comply with the maintenance requirements of the SFPC to the extent that equipment, systems, devices, and safeguards which were provided and approved when constructed shall be maintained. Such buildings and structures, if subject to the state fire and public building regulations (Virginia Public Building Safety Regulations, VR 394-01-05) in effect prior to March 31, 1986, shall also be maintained in accordance with those regulations.

D. 102.3. Application to post-1973 buildings and structures: Buildings and structures constructed under any edition of the USBC shall comply with the maintenance requirements of the SFPC to the extent that equipment, systems, devices, and safeguards which were provided and approved when constructed shall be maintained.

E. 102.4. Referenced codes and standards: The codes and standards referenced in the IFC shall be those listed in Chapter 45 47 and considered part of the requirements of the SFPC to the prescribed extent of each such reference. Where differences occur between the provisions of this code and the referenced standards, the provisions of this code shall apply.

F. 102.5. State-owned buildings and structures: The SFPC shall be applicable to all state-owned buildings and structures in the manner and extent described in § 27-99 of the Code of Virginia and the State Fire Marshal shall have the authority to enforce this code in state-owned buildings and structures as is prescribed in §§ 27-98 and 27-99 of the Code of Virginia.

G. 102.6. Relationship to USBC: In accordance with §§ 27-34.4, 36-105.1 and 36-119.1 of the Code of Virginia, the USBC does not supersede the provisions of this code that prescribe standards to be complied with in existing buildings and structures, provided that this code shall not impose requirements that are more restrictive than those of the USBC under which the buildings or structures were constructed. Subsequent alteration, enlargement, rehabilitation, repair or conversion of the occupancy classification of such buildings and structures shall be subject to the construction and rehabilitation provisions of the USBC. Inspection of buildings other than state-owned buildings under construction and the review and approval of building plans for these structures for enforcement of the USBC shall be the sole responsibility of the appropriate local building inspectors.

Upon completion of such structures, responsibility for fire safety protection shall pass to the local fire marshal or official designated by the locality to enforce this code in those localities that enforce the SFPC or to the State Fire Marshal in those localities that do not enforce this code.

H. 102.7. Inspections for USBC requirements: The fire official shall require that existing structures subject to the requirements of the applicable retrofitting provisions relating to the fire protection equipment and system requirements of the USBC, Part I, Construction, Sections 103.7 and 3411 3413, comply with the provisions located therein.

13VAC5-51-81. Section 107.0. Permits and fees.

A. 107.1. Prior notification: The fire official may require notification prior to (i) activities involving the handling, storage or use of substances, materials or devices regulated by the SFPC; (ii) conducting processes which produce conditions hazardous to life or property; or (iii) establishing a place of assembly.

B. 107.2. Permits required: Permits may be required by the fire official as permitted under the SFPC in accordance with Table 107.2, except that the fire official shall require permits for the manufacturing, storage, handling, use, and sale of explosives. An application for a permit to manufacture, store, handle, use, or sell explosives shall only be made by an individual certified as a blaster in accordance with Section 3301.4, or by a person who has been issued a background clearance card in accordance with Section 3301.2.3.1.1.

Exception: Such permits shall not be required for the storage of explosives or blasting agents by the Virginia Department of State Police provided notification to the fire official is made annually by the Chief Arson Investigator listing all storage locations.

C. Add Table 107.2 as follows:

Title of Regulation: 13VAC5-63. Virginia Uniform Statewide Building Code (amending 13VAC5-63-10, 13VAC5-63-20, 13VAC5-63-30, 13VAC5-63-50, 13VAC5-63-60, 13VAC5-63-70, 13VAC5-63-150, 13VAC5-63-190, 13VAC5-63-200, 13VAC5-63-210, 13VAC5-63-220, 13VAC5-63-230, 13VAC5-63-240, 13VAC5-63-245, 13VAC5-63-250, 13VAC5-63-267, 13VAC5-63-290, 13VAC5-63-300, 13VAC5-63-310, 13VAC5-63-320, 13VAC5-63-330, 13VAC5-63-350, 13VAC5-63-360, 13VAC5-63-400, 13VAC5-63-434, 13VAC5-63-440, 13VAC5-63-450, 13VAC5-63-480, 13VAC5-63-500, 13VAC5-63-520, 13VAC5-63-530, 13VAC5-63-540; repealing 13VAC5-63-436, 13VAC5-63-437).

Statutory Authority: § 36-98 of the Code of Virginia.

Public Hearing Information:

January 25, 2010 - 10 a.m. - Virginia Housing Development Authority, Virginia Housing Center, 4224 Cox Road, Glen Allen, VA

Public Comment Deadline: January 25, 2010.

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

Background:

The Virginia Uniform Statewide Building Code (USBC) governs the construction, maintenance, and rehabilitation of new and existing building and structures. The USBC uses nationally recognized model building codes and standards produced by the International Code Council and other standard-writing groups as the basis for the technical provisions of the regulation. Every three years, new editions of the model codes become available. At that time, the Board of Housing and Community Development initiates a regulatory action to incorporate the newest editions of the model codes into the regulation through the publishing of a proposed regulation. Those affected by the regulation then review the proposed regulation to assure that the newest model codes and standards reflect the minimum requirements necessary for buildings and structures. After the publishing of the proposed regulation, the board establishes a comment period for the acceptance of code change proposals to modify the model codes or standards or any provisions of the entire regulation. Code change proposals are assimilated into a compilation document containing a staff evaluation of each proposal and the compilation document is reviewed by client groups during a second comment period and additional comment on each proposal is accepted. A public hearing is also held. The board then considers all comments on all proposals and develops a final regulation to complete the regulatory process.

Summary:

The proposed amendments (i) incorporate the newest editions of the nationally recognized model codes and standards into the regulation; (ii) make general clarifications and correlation changes to conform to statutory language, coordinate the application of the regulations with the other building and fire regulations of the board, and remove provisions in the existing USBC that have been successfully added to the latest model codes through the code changes process of the model code organization, thus eliminating the need for those changes in the USBC; (iii) update exemptions from the USBC; (iv) provide that no change shall be made in the existing occupancy classification of any structure when the current USBC requires a greater degree of accessibility; (v) clarify that handrail and guardrail configuration and height on a reconstructed deck are excluded from the requirement that reconstructed decks must meet the current code provisions for structural loading, connections, and structural attachment; (vi) require state enforcement personnel to comply with certification, periodic maintenance training, and continuing education requirements; (vii) clarify continuing education requirements; (viii) clarify that the limitations of authority by the local government on the building official are not applicable to the third-party inspector policy nor do such limitations have the effect of altering the provisions of the code or creating building regulations; (ix) require that the local board of building code appeals must meet at least once annually, appoint officers, and receive training on the code as appropriate or necessary; (x) require that a townhouse be separated from adjacent townhouses by a common two-hour wall assembly; (xi) require standards for optional sprinkler systems; (xii) add new requirements to the 2009 IBC for exiting from stages; (xiii) add elevator machine rooms and elevator machine spaces to the list of exempt locations for automatic sprinklers; (xiv) change an existing requirement for the residual pressure in standpipe fire-fighting systems to be less when a sprinkler system is installed to include sprinkler systems for small residential buildings; (xv) add language to the IBC to exempt raised areas used for religious purposes from the necessity of having to provide wheelchair access; (xvi) change the language in the 2009 IBC regarding the construction of elevator rooms to include rooms housing elevator controllers in the exceptions to permit the reduction in fire rating for the walls of such rooms; (xvii) add a requirement to the 2009 IBC for accessibility for persons with disabilities to be consistent with the Americans with Disabilities Act; (xviii) add a requirement to the International Property Maintenance Code (IPMC) for the service and maintenance of grease interceptor, grease traps, and automatic grease removal devices; and (xix) change the criteria in the IPMC for inspecting water damaged electrical equipment to permit a certified electrician to evaluate the safety of the equipment.

Part I
Construction

13VAC5-63-10. Chapter 1 Administration; Section 101 General.

A. Section 101.1 Short title. The Virginia Uniform Statewide Building Code, Part I, Construction, may be cited as the Virginia Construction Code. The term "USBC" shall mean the Virginia Construction Code unless the context in which the term is used clearly indicates it to be an abbreviation for the entire Virginia Uniform Statewide Building Code or for a different part of the Virginia Uniform Statewide Building Code.

B. Section 101.2 Incorporation by reference. Chapters 2 - 35 of the 2006 2009 International Building Code, published by the International Code Council, Inc., are adopted and incorporated by reference to be an enforceable part of the USBC. The term "IBC" means the 2006 2009 International Building Code, published by the International Code Council, Inc. Any codes and standards referenced in the IBC are also considered to be part of the incorporation by reference, except that such codes and standards are used only to the prescribed extent of each such reference. In addition, any provisions of the appendices of the IBC specifically identified to be part of the USBC are also considered to be part of the incorporation by reference.

Note 1: The IBC references the whole family of International Codes including the following major codes:

2006 2009 International Plumbing Code

2006 2009 International Mechanical Code

2005 2008 National Electrical Code

2006 2009 International Fuel Gas Code

2006 2009 International Energy Conservation Code

2006 2009 International Residential Code

Note 2: The International Residential Code is applicable to the construction of detached one- and two-family dwellings and townhouses as set out in Section 310.

C. Section 101.3 Numbering system. A dual numbering system is used in the USBC to correlate the numbering system of the Virginia Administrative Code with the numbering system of the IBC. IBC numbering system designations are provided in the catchlines of the Virginia Administrative Code sections. Cross references between sections or chapters of the USBC use only the IBC numbering system designations. The term "chapter" is used in the context of the numbering system of the IBC and may mean a chapter in the USBC, a chapter in the IBC or a chapter in a referenced code or standard, depending on the context of the use of the term. The term "chapter" is not used to designate a chapter of the Virginia Administrative Code, unless clearly indicated.

D. Section 101.4 Arrangement of code provisions. The USBC is comprised of the combination of (i) the provisions of Chapter 1, Administration, which are established herein, (ii) Chapters 2 - 35 of the IBC, which are incorporated by reference in Section 101.2, and (iii) the changes to the text of the incorporated chapters of the IBC that are specifically identified. The terminology "changes to the text of the incorporated chapters of the IBC that are specifically identified" shall also be referred to as the "state amendments to the IBC." Such state amendments to the IBC are set out using corresponding chapter and section numbers of the IBC numbering system. In addition, since Chapter 1 of the IBC is not incorporated as part of the USBC, any reference to a provision of Chapter 1 of the IBC in the provisions of Chapters 2 - 35 of the IBC is generally invalid. However, where the purpose of such a reference would clearly correspond to a provision of Chapter 1 established herein, then the reference may be construed to be a valid reference to such corresponding Chapter 1 provision.

E. Section 101.5 Use of terminology and notes. The term "this code," or "the code," where used in the provisions of Chapter 1, in Chapters 2 - 35 of the IBC or in the state amendments to the IBC means the USBC, unless the context clearly indicates otherwise. The term "this code" or "the code" where used in a code or standard referenced in the IBC means that code or standard, unless the context clearly indicates otherwise. The use of notes in Chapter 1 is to provide information only and shall not be construed as changing the meaning of any code provision. Notes in the IBC, in the codes and standards referenced in the IBC and in the state amendments to the IBC may modify the content of a related provision and shall be considered to be a valid part of the provision, unless the context clearly indicates otherwise.

F. Section 101.6 Order of precedence. The provisions of Chapter 1 of this code supersede any conflicting provisions of Chapters 2 - 35 of the IBC and any conflicting provisions of the codes and standards referenced in the IBC. In addition, the state amendments to the IBC supersede any conflicting provisions of Chapters 2 - 35 of the IBC and any conflicting provisions of the codes and standards referenced in the IBC. Further, the provisions of Chapters 2 - 35 of the IBC supersede any conflicting provisions of the codes and standards referenced in the IBC.

G. Section 101.7 Administrative provisions. The provisions of Chapter 1 establish administrative requirements, which include but are not limited to provisions relating to the scope of the code, enforcement, fees, permits, inspections and disputes. Any provisions of Chapters 2 - 35 of the IBC or any provisions of the codes and standards referenced in the IBC that address the same subject matter and impose differing requirements are deleted and replaced by the provisions of Chapter 1. Further, any administrative requirements contained in the state amendments to the IBC shall be given the same precedence as the provisions of Chapter 1. Notwithstanding the above, where administrative requirements of Chapters 2 - 35 of the IBC or of the codes and standards referenced in the IBC are specifically identified as valid administrative requirements in Chapter 1 of this code or in the state amendments to the IBC, then such requirements are not deleted and replaced.

Note: The purpose of this provision is to eliminate overlap, conflicts and duplication by providing a single standard for administrative, procedural and enforcement requirements of this code.

H. Section 101.8 Definitions. The definitions of terms used in this code are contained in Chapter 2 along with specific provisions addressing the use of definitions. Terms may be defined in other chapters or provisions of the code and such definitions are also valid.

Note: The order of precedence outlined in Section 101.6 may be determinative in establishing how to apply the definitions in the IBC and in the referenced codes and standards.

13VAC5-63-20. Section 102 Purpose and scope.

A. Section 102.1 Purpose. In accordance with § 36-99 of the Code of Virginia, the purpose of the USBC is to protect the health, safety and welfare of the residents of the Commonwealth of Virginia, provided that buildings and structures should be permitted to be constructed at the least possible cost consistent with recognized standards of health, safety, energy conservation and water conservation, including provisions necessary to prevent overcrowding, rodent or insect infestation, and garbage accumulation; and barrier-free provisions for the physically handicapped and aged.

B. Section 102.2 Scope. This section establishes the scope of the USBC in accordance with § 36-98 of the Code of Virginia. The USBC shall supersede the building codes and regulations of the counties, municipalities and other political subdivisions and state agencies. This code also shall supersede the provisions of local ordinances applicable to single-family residential construction that (i) regulate dwelling foundations or crawl spaces, (ii) require the use of specific building materials or finishes in construction, or (iii) require minimum surface area or numbers of windows; however, this code shall not supersede proffered conditions accepted as a part of a rezoning application, conditions imposed upon the grant of special exceptions, special or conditional use permits or variances, conditions imposed upon a clustering of single-family homes and preservation of open space development through standards, conditions, and criteria established by a locality pursuant to subdivision 8 of § 15.2-2242 of the Code of Virginia or subdivision A 12 of § 15.2-2286 of the Code of Virginia, or land use requirements in airport or highway overlay districts, or historic districts created pursuant to § 15.2-2306 of the Code of Virginia, or local flood plain regulations adopted as a condition of participation in the National Flood Insurance Program.

Note: Requirements relating to functional design are contained in Section 103.11 of this code.

C. Section 102.2.1 Invalidity of provisions. To the extent that any provisions of this code are in conflict with Chapter 6 (§ 36-97 et seq.) of Title 36 of the Code of Virginia or in conflict with the scope of the USBC, those provisions are considered to be invalid to the extent of such conflict.

D. Section 102.3 Exemptions. The following are exempt from this code:

1. Equipment and, related wiring, and poles and towers supporting the related wiring installed by a provider of publicly regulated utility service or a franchised cable television operator and electrical equipment and related wiring used for radio, broadcast or cable television, telecommunications or information service transmission. The exemption shall apply only if under applicable federal and state law the ownership and control of the equipment and wiring is by the service provider or its affiliates. Such exempt equipment and wiring shall be located on either public rights-of-way or private property for which the service provider has rights of occupancy and entry; however, the structures, including their service equipment, housing or supporting such exempt equipment and wiring shall be subject to the USBC. The installation of equipment and wiring exempted by this section shall not create an unsafe condition prohibited by the USBC.

2. Manufacturing and processing machines, including all of the following service equipment associated with the manufacturing or processing machines.

2.1. Electrical equipment connected after the last disconnecting means.

2.2. Plumbing piping and equipment connected after the last shutoff valve or backflow device and before the equipment drain trap.

2.3. Gas piping and equipment connected after the outlet shutoff valve.

3. Parking lots and sidewalks, which are not part of an accessible route.

4. Nonmechanized playground or recreational equipment such as swing sets, sliding boards, climbing bars, jungle gyms, skateboard ramps, and similar equipment where no admission fee is charged for its use or for admittance to areas where the equipment is located.

5. Industrialized buildings subject to the Virginia Industrialized Building Safety Regulations (13VAC5-91) and manufactured homes subject to the Virginia Manufactured Home Safety Regulations (13VAC5-95); except as provided for in Section 421 424.

6. Farm buildings and structures, except for a building or a portion of a building located on a farm that is operated as a restaurant as defined in § 35.1-1 of the Code of Virginia and licensed as such by the Virginia Board of Health pursuant to Chapter 2 (§ 35.1-11 et seq.) of Title 35.1 of the Code of Virginia. However, farm buildings and structures lying within a flood plain or in a mudslide-prone area shall be subject to flood-proofing regulations or mudslide regulations, as applicable.

7. Federally owned buildings and structures unless federal law specifically requires a permit from the locality.

13VAC5-63-30. Section 103 Application of code.

A. Section 103.1 General. In accordance with § 36-99 of the Code of Virginia, the USBC shall prescribe building regulations to be complied with in the construction and rehabilitation of buildings and structures, and the equipment therein.

B. Section 103.2 When applicable to new construction. Construction for which a permit application is submitted to the local building department after May 1, 2008 (insert effective date), shall comply with the provisions of this code, except for permit applications submitted during a one-year period after May 1, 2008 (insert effective date). The applicant for a permit during such one-year period shall be permitted to choose whether to comply with the provisions of this code or the provisions of the code in effect immediately prior to May 1, 2008 (insert effective date). This provision shall also apply to subsequent amendments to this code based on the effective date of such amendments. In addition, when a permit has been properly issued under a previous edition of this code, this code shall not require changes to the approved construction documents, design or construction of such a building or structure, provided the permit has not been suspended or revoked.

C. Section 103.3 Change of occupancy. No change shall be made in the existing occupancy classification of any structure when the current USBC requires a greater degree of accessibility, structural strength, fire protection, means of egress, ventilation or sanitation. When such a greater degree is required, the owner or the owner's agent shall make written application to the local building department for a new certificate of occupancy and shall obtain the new certificate of occupancy prior to the use of the structure under the new occupancy classification. When impractical to achieve compliance with this code for the new occupancy classification, the building official shall consider modifications upon application and as provided for in Section 106.3.

Exception: This section shall not be construed to permit noncompliance with any applicable flood load or flood-resistant construction requirements of this code.

D. Section 103.4 Additions. Additions to buildings and structures shall comply with the requirements of this code for new construction and an existing building or structure plus additions shall comply with the height and area provisions of Chapter 5. Further, this code shall not require changes to the design or construction of any portions of the building or structure not altered or affected by an addition, unless the addition has the effect of lowering the current level of safety.

Exception: This section shall not be construed to permit noncompliance with any applicable flood load or flood-resistant construction requirements of this code.

E. Section 103.5 Reconstruction, alteration or repair. The following criteria is applicable to reconstruction, alteration or repair of buildings or structures:

1. Any reconstruction, alteration or repair shall not adversely affect the performance of the building or structure, or cause the building or structure to become unsafe or lower existing levels of health and safety.

2. Parts of the building or structure not being reconstructed, altered or repaired shall not be required to comply with the requirements of this code applicable to newly constructed buildings or structures.

3. The installation of material or equipment, or both, that is neither required nor prohibited shall only be required to comply with the provisions of this code relating to the safe installation of such material or equipment.

4. Material or equipment, or both, may be replaced in the same location with material or equipment of a similar kind or capacity.

Exceptions:

1. This section shall not be construed to permit noncompliance with any applicable flood load or flood-resistant construction requirements of this code.

2. Reconstructed decks, balconies, porches and similar structures located 30 inches (762 mm) or more above grade shall meet the current code provisions for structural loading capacity, connections and structural attachment. This requirement excludes the configuration and height of handrails and guardrails.

F. Section 103.6. Use of rehabilitation code. Compliance with Part II of the Virginia Uniform Statewide Building Code, also known as the "Virginia Rehabilitation Code," shall be an acceptable alternative to compliance with this code for the rehabilitation of such existing buildings and structures within the scope of that code. For the purposes of this section, the term "rehabilitation" shall be as defined in the Virginia Rehabilitation Code.

G. Section 103.7. Retrofit requirements. The local building department shall enforce the provisions of Section 3411 3413, which require certain existing buildings to be retrofitted with fire protection systems and other safety equipment. Retroactive fire protection system requirements contained in the International Fire Code shall not be applicable unless required for compliance with the provisions of Section 3411 3413.

H. Section 103.8 Nonrequired equipment. The following criteria for nonrequired equipment is in accordance with § 36-103 of the Code of Virginia. Building owners may elect to install partial or full fire alarms or other safety equipment that was not required by the edition of the USBC in effect at the time a building was constructed without meeting current requirements of the code, provided the installation does not create a hazardous condition. Permits for installation shall be obtained in accordance with this code. In addition, as a requirement of this code, when such nonrequired equipment is to be installed, the building official shall notify the appropriate fire official or fire chief.

I. Section 103.8.1 Reduction in function or discontinuance of nonrequired fire protection systems. When a nonrequired fire protection system is to be reduced in function or discontinued, it shall be done in such a manner so as not to create a false sense of protection. Generally, in such cases, any features visible from interior areas shall be removed, such as sprinkler heads, smoke detectors or alarm panels or devices, but any wiring or piping hidden within the construction of the building may remain. Approval of the proposed method of reduction or discontinuance shall be obtained from the building official.

J. Section 103.9 Equipment changes. Upon the replacement or new installation of any fuel-burning appliances or equipment in existing buildings, an inspection or inspections shall be conducted to ensure that the connected vent or chimney systems comply with the following:

1. Vent or chimney systems are sized in accordance with either the International Residential Code, the International Mechanical Code or the International Fuel Gas Code, depending on which is applicable based on the fuel source and the occupancy classification of the structure.

2. Vent or chimney systems are clean, free of any obstruction or blockages, defects or deterioration and are in operable condition.

Where not inspected by the local building department, persons performing such changes or installations shall certify to the building official that the requirements of Items 1 and 2 of this section are met.

K. Section 103.10 Use of certain provisions of referenced codes. The following provisions of the IBC and of other indicated codes or standards are to be considered valid provisions of this code. Where any such provisions have been modified by the state amendments to the IBC, then the modified provisions apply.

1. Special inspection requirements in Chapters 2 - 35.

2. Chapter 34, Existing Structures, except that Section 3410 3412, Compliance Alternatives, shall not be used to comply with the retrofit requirements identified in Section 103.7 and shall not be construed to permit noncompliance with any applicable flood load or flood-resistant construction requirements of this code.

3. Testing requirements and requirements for the submittal of construction documents in any of the ICC codes referenced in Chapter 35.

4. Section R301.2 of the International Residential Code authorizing localities to determine climatic and geographic design criteria.

5. Flood load or flood-resistant construction requirements in the IBC or the International Residential Code, including, but not limited to, any such provisions pertaining to flood elevation certificates that are located in Chapter 1 of those codes. Any required flood elevation certificate pursuant to such provisions shall be prepared by a land surveyor licensed in Virginia or an RDP.

L. Section 103.11 Functional design. The following criteria for functional design is in accordance with § 36-98 of the Code of Virginia. The USBC shall not supersede the regulations of other state agencies that require and govern the functional design and operation of building related activities not covered by the USBC, including but not limited to (i) public water supply systems, (ii) waste water treatment and disposal systems, (iii) solid waste facilities, nor shall state agencies be prohibited from requiring, pursuant to other state law, that buildings and equipment be maintained in accordance with provisions of this code. In addition, as established by this code, the building official may refuse to issue a permit until the applicant has supplied certificates of functional design approval from the appropriate state agency or agencies. For purposes of coordination, the locality may require reports to the building official by other departments or agencies indicating compliance with their regulations applicable to the functional design of a building or structure as a condition for issuance of a building permit or certificate of occupancy. Such reports shall be based upon review of the plans or inspection of the project as determined by the locality. All enforcement of these conditions shall not be the responsibility of the building official, but rather the agency imposing the condition.

Note: Identified state agencies with functional design approval are listed in the "Related Laws Package," which is available from DHCD.

M. Section 103.12 Amusement devices and inspections. In accordance with § 36-98.3 of the Code of Virginia, to the extent they are not superseded by the provisions of § 36-98.3 of the Code of Virginia and the VADR, the provisions of the USBC shall apply to amusement devices. In addition, as a requirement of this code, inspections for compliance with the VADR shall be conducted either by local building department personnel or private inspectors provided such persons are certified as amusement device inspectors under the VCS.

N. Section 103.13 State buildings and structures. This section establishes the application of the USBC to state-owned buildings and structures in accordance with § 36-98.1 of the Code of Virginia. The USBC shall be applicable to all state-owned buildings and structures, with the exception that §§ 2.2-1159, 2.2-1160 and 2.2-1161 of the Code of Virginia shall provide the standards for ready access to and use of state-owned buildings by the physically handicapped.

Any state-owned building or structure for which preliminary plans were prepared or on which construction commenced after the initial effective date of the USBC, shall remain subject to the provisions of the USBC that were in effect at the time such plans were completed or such construction commenced. Subsequent reconstruction, renovation or demolition of such building or structure shall be subject to the pertinent provisions of this code.

Acting through the Division of Engineering and Buildings, the Virginia Department of General Services shall function as the building official for state-owned buildings. The department shall review and approve plans and specifications, grant modifications, and establish such rules and regulations as may be necessary to implement this section. It shall provide for the inspection of state-owned buildings and enforcement of the USBC and standards for access by the physically handicapped by delegating inspection and USBC enforcement duties to the State Fire Marshal's Office, to other appropriate state agencies having needed expertise, and to local building departments, all of which shall provide such assistance within a reasonable time and in the manner requested. State agencies and institutions occupying buildings shall pay to the local building department the same fees as would be paid by a private citizen for the services rendered when such services are requested by the department. The department may alter or overrule any decision of the local building department after having first considered the local building department's report or other rationale given for its decision. When altering or overruling any decision of a local building department, the department shall provide the local building department with a written summary of its reasons for doing so.

Notwithstanding any provision of this code to the contrary, roadway tunnels and bridges owned by the Virginia Department of Transportation shall be exempt from this code. The Virginia Department of General Services shall not have jurisdiction over such roadway tunnels, bridges and other limited access highways; provided, however, that the Department of General Services shall have jurisdiction over any occupied buildings within any Department of Transportation rights-of-way that are subject to this code.

Except as provided in § 23-38.109 D of the Code of Virginia, and notwithstanding any provision of this code to the contrary, at the request of a public institution of higher education, the Virginia Department of General Services, as further set forth in this provision, shall authorize that institution of higher education to contract with a building official of the locality in which the construction is taking place to perform any inspection and certifications required for the purpose of complying with this code. The department shall publish administrative procedures that shall be followed in contracting with a building official of the locality. The authority granted to a public institution of higher education under this provision to contract with a building official of the locality shall be subject to the institution meeting the conditions prescribed in § 23-38.88 B of the Code of Virginia.

Note: In accordance with § 36-98.1 of the Code of Virginia, roadway tunnels and bridges shall be designed, constructed and operated to comply with fire safety standards based on nationally recognized model codes and standards to be developed by the Virginia Department of Transportation in consultation with the State Fire Marshal and approved by the Virginia Commonwealth Transportation Board. Emergency response planning and activities related to the standards approved by the Commonwealth Transportation Board shall be developed by the Department of Transportation and coordinated with the appropriate local officials and emergency service providers. On an annual basis, the Department of Transportation shall provide a report on the maintenance and operability of installed fire protection and detection systems in roadway tunnels and bridges to the State Fire Marshal.

O. Section 103.13.1 Certification of state enforcement personnel. State enforcement personnel shall comply with the applicable requirements of Section 105 for certification, periodic maintenance training, and continuing education.

13VAC5-63-50. Section 105 Local building department.

A. Section 105.1 Appointment of building official. Every local building department shall have a building official as the executive official in charge of the department. The building official shall be appointed in a manner selected by the local governing body. After permanent appointment, the building official shall not be removed from office except for cause after having been afforded a full opportunity to be heard on specific and relevant charges by and before the appointing authority. DHCD shall be notified by the appointing authority within 30 days of the appointment or release of a permanent or acting building official.

Note: Building officials are subject to sanctions in accordance with the VCS.

B. Section 105.1.1 Qualifications of building official. The building official shall have at least five years of building experience as a licensed professional engineer or architect, building, fire or trade inspector, contractor, housing inspector or superintendent of building, fire or trade construction or at least five years of building experience after obtaining a degree in architecture or engineering, with at least three years in responsible charge of work. Any combination of education and experience that would confer equivalent knowledge and ability shall be deemed to satisfy this requirement. The building official shall have general knowledge of sound engineering practice in respect to the design and construction of structures, the basic principles of fire prevention, the accepted requirements for means of egress and the installation of elevators and other service equipment necessary for the health, safety and general welfare of the occupants and the public. The local governing body may establish additional qualification requirements.

C. Section 105.1.2 Certification of building official. An acting or permanent building official shall be certified as a building official in accordance with the VCS within one year after being appointed as acting or permanent building official.

Exception: A building official in place prior to April 1, 1983, shall not be required to meet the certification requirements in this section while continuing to serve in the same capacity in the same locality.

D. Section 105.1.3 Noncertified building official. Except for a building official exempt from certification under the exception to Section 105.1.2, any acting or permanent building official who is not certified as a building official in accordance with the VCS shall attend the core module of the Virginia Building Code Academy or an equivalent course in an individual or regional code academy accredited by DHCD within 180 days of appointment. This requirement is in addition to meeting the certification requirement in Section 105.1.2.

E. Section 105.1.4 Continuing Requirements for periodic maintenance and continuing education requirements. Building officials shall attend 16 hours every two years of continuing education and periodic maintenance training courses approved or required as designated by DHCD. Additional In addition to the periodic maintenance training required above, building officials shall attend 16 hours of continuing education hours shall not be required if more than one every two years as approved by DHCD. If a building official possesses more than one BHCD certificate is held, the 16 hours shall satisfy the continuing education requirement for all BHCD certificates.

F. Section 105.2 Technical assistants. The building official, subject to any limitations imposed by the locality, shall be permitted to utilize technical assistants to assist the building official in the enforcement of the USBC. DHCD shall be notified by the building official within 60 days of the employment of, contracting with or termination of all technical assistants.

Note: Technical assistants are subject to sanctions in accordance with the VCS.

G. Section 105.2.1 Qualifications of technical assistants. A technical assistant shall have at least three years of experience and general knowledge in at least one of the following areas: building construction; building, fire or housing inspections; plumbing, electrical or mechanical trades; or fire protection, elevator or property maintenance work. Any combination of education and experience that would confer equivalent knowledge and ability shall be deemed to satisfy this requirement. The locality may establish additional qualification requirements.

H. Section 105.2.2 Certification of technical assistants. A technical assistant shall be certified in the appropriate subject area within 18 months after becoming a technical assistant. When required by local policy to have two or more certifications, a technical assistant shall obtain the additional certifications within three years from the date of such requirement.

Exception: A technical assistant in place prior to March 1, 1988, shall not be required to meet the certification requirements in this section while continuing to serve in the same capacity in the same locality.

I. Section 105.2.3 Continuing Requirements for periodic maintenance and continuing education requirements. Technical assistants shall attend 16 hours every two years of continuing education and periodic maintenance training courses approved or required as designated by DHCD. Additional In addition to the periodic maintenance training required above, technical assistants shall attend 16 hours of continuing education hours shall not be required if more than one every two years as approved by DHCD. If a technical assistant possesses more than one BHCD certificate is held, the 16 hours shall satisfy the continuing education requirement for all BHCD certificates.

J. Section 105.3 Conflict of interest. The standards of conduct for building officials and technical assistants shall be in accordance with the provisions of the State and Local Government Conflict of Interests Act, Chapter 31 (§ 2.2-3100 et seq.) of Title 2.2 of the Code of Virginia.

K. Section 105.4 Records. The local building department shall retain a record of applications received, permits, certificates, notices and orders issued, fees collected and reports of inspection in accordance with The Library of Virginia's General Schedule Number Six.

13VAC5-63-60. Section 106 Powers and duties of the building official.

A. Section 106.1 Powers and duties, generally. The building official shall enforce this code as set out herein and as interpreted by the State Review Board.

B. Section 106.2 Delegation of authority. The building official may delegate powers and duties except where such authority is limited by the local government. However, such limitations of authority by the local government are not applicable to the third-party inspector policy required by Section 113.7.1 nor shall such limitations of authority by the local government have the effect of altering the provisions of this code or creating building regulations. When such delegations are made, the building official shall be responsible for assuring that they are carried out in accordance with the provisions of this code.

C. Section 106.3 Issuance of modifications. Upon written application by an owner or an owner's agent, the building official may approve a modification of any provision of the USBC provided the spirit and functional intent of the code are observed and public health, welfare and safety are assured. The decision of the building official concerning a modification shall be made in writing and the application for a modification and the decision of the building official concerning such modification shall be retained in the permanent records of the local building department.

Note: The USBC references nationally recognized model codes and standards. Future amendments to such codes and standards are not automatically included in the USBC; however the building official should give them due consideration in deciding whether to approve a modification.

D. Section 106.3.1 Substantiation of modification. The building official may require or may consider a statement from an RDP or other person competent in the subject area of the application as to the equivalency of the proposed modification. In addition, the building official may require the application to include construction documents sealed by an RDP.

E. Section 106.3.2 Use of performance code. Compliance with the provisions of a nationally recognized performance code when approved as a modification shall be considered to constitute compliance with this code. All documents submitted as part of such consideration shall be retained in the permanent records of the local building department.

13VAC5-63-70. Section 107 Fees.

A. Section 107.1 Authority for charging fees. In accordance with § 36-105 of the Code of Virginia, fees may be levied by the local governing body in order to defray the cost of enforcement of the USBC.

B. Section 107.1.1 Fee schedule. The local governing body shall establish a fee schedule incorporating unit rates, which may be based on square footage, cubic footage, estimated cost of construction or other appropriate criteria. A permit or any amendments to an existing permit shall not be issued until the designated fees have been paid, except that the building official may authorize the delayed payment of fees.

C. Section 107.1.2 Refunds. When requested in writing by a permit holder, the locality shall provide a fee refund in the case of the revocation of a permit or the abandonment or discontinuance of a building project. The refund shall not be required to exceed an amount which correlates to work not completed.

D. Section 107.2 Code academy fee levy. In accordance with subdivision 7 of § 36-137 of the Code of Virginia, the local building department shall collect a 1.75% 2.0% levy of fees charged for building permits issued under this code and transmit it quarterly to DHCD to support training programs of the Virginia Building Code Academy. The foregoing levy shall remain effective until July 1, 2009, after which time the fee levy shall be increased to 2.0%. Localities that maintain individual or regional training academies accredited by DHCD shall retain such levy.

13VAC5-63-150. Section 115 Violations.

A. Section 115.1 Violation a misdemeanor; civil penalty. In accordance with § 36-106 of the Code of Virginia, it shall be unlawful for any owner or any other person, firm or corporation, on or after the effective date of any code provisions, to violate any such provisions. Any locality may adopt an ordinance that establishes a uniform schedule of civil penalties for violations of specified provisions of the code that are not abated or remedied promptly after receipt of a notice of violation from the local enforcement officer.

Note: See the full text of § 36-106 of the Code of Virginia for additional requirements and criteria pertaining to legal action relative to violations of the code.

B. Section 115.2 Notice of violation. The building official shall issue a written notice of violation to the responsible party if any violations of this code or any directives or orders of the building official have not been corrected or complied with in a reasonable time. The notice shall reference the code section upon which the notice is based and direct the discontinuance and abatement of the violation or the compliance with such directive or order. The notice shall be issued by either delivering a copy to the responsible party by mail to the last known address or delivering the notice in person or by leaving it in the possession of any person in charge of the premises, or by posting the notice in a conspicuous place if the person in charge of the premises cannot be found. The notice of violation shall indicate the right of appeal by referencing the appeals section. When the owner of the building or structure, or the permit holder for the construction in question, or the tenants of such building or structure, are not the responsible party to whom the notice of violation is issued, then a copy of the notice shall also be delivered to the such owner, permit holder or tenants.

C. Section 115.2.1 Notice not to be issued under certain circumstances. When violations are discovered more than two years after the certificate of occupancy is issued or the date of initial occupancy, whichever occurred later, or more than two years after the approved final inspection for an alteration or renovation, a notice of violation shall only be issued upon advice from the legal counsel of the locality that action may be taken to compel correction of the violation. When compliance can no longer be compelled by prosecution under § 36-106 of the Code of Virginia, the building official, when requested by the building owner, shall document in writing the existence of the violation noting the edition of the USBC the violation is under.

D. Section 115.3 Further action when violation not corrected. If the responsible party has not complied with the notice of violation, the building official shall submit a written request to the legal counsel of the locality to institute the appropriate legal proceedings to restrain, correct or abate the violation or to require the removal or termination of the use of the building or structure involved. In cases where the locality so authorizes, the building official may issue or obtain a summons or warrant. Compliance with a notice of violation notwithstanding, the building official may request legal proceedings be instituted for prosecution when a person, firm or corporation is served with three or more notices of violation within one calendar year for failure to obtain a required construction permit prior to commencement of work subject to this code.

Note: See § 19.2-8 of the Code of Virginia concerning the statute of limitations for building code prosecutions.

E. Section 115.4 Penalties and abatement. Penalties for violations of the USBC shall be as set out in § 36-106 of the Code of Virginia. The successful prosecution of a violation of the USBC shall not preclude the institution of appropriate legal action to require correction or abatement of a violation.

F. Section 115.5 Transfer of ownership. In accordance with § 36-105 of the Code of Virginia, if the local building department has initiated an enforcement action against the owner of a building or structure and such owner subsequently transfers the ownership of the building or structure to an entity in which the owner holds an ownership interest greater than 50%, the pending enforcement action shall continue to be enforced against the owner.

13VAC5-63-190. Section 119 Appeals.

A. Section 119.1 Establishment of appeals board. In accordance with § 36-105 of the Code of Virginia, there shall be established within each local building department a LBBCA. Whenever a county or a municipality does not have such a LBBCA, the local governing body shall enter into an agreement with the local governing body of another county or municipality or with some other agency, or a state agency approved by DHCD for such appeals resulting therefrom. Fees may be levied by the local governing body in order to defray the cost of such appeals. In addition, as an authorization in this code, separate LBBCAs may be established to hear appeals of different enforcement areas such as electrical, plumbing or mechanical requirements. Each such LBBCA shall comply with the requirements of this section.

B. Section 119.2 Membership of board. The LBBCA shall consist of at least five members appointed by the locality for a specific term of office established by written policy. Alternate members may be appointed to serve in the absence of any regular members and as such, shall have the full power and authority of the regular members. Regular and alternate members may be reappointed. Written records of current membership, including a record of the current chairman and secretary shall be maintained in the office of the locality. In order to provide continuity, the terms of the members may be of different length so that less than half will expire in any one-year period. The LBBCA shall meet at least once annually to assure a duly constituted board, appoint officers as necessary, and receive such training on the code as may be appropriate or necessary from staff of the locality.

C. Section 119.3 Officers and qualifications of members. The LBBCA shall annually select one of its regular members to serve as chairman. When the chairman is not present at an appeal hearing, the members present shall select an acting chairman. The locality or the chief executive officer of the locality shall appoint a secretary to the LBBCA to maintain a detailed record of all proceedings. Members of the LBBCA shall be selected by the locality on the basis of their ability to render fair and competent decisions regarding application of the USBC and shall to the extent possible, represent different occupational or professional fields relating to the construction industry. At least one member should be an experienced builder; at least one member should be an RDP, and at least one member should be an experienced property manager. Employees or officials of the locality shall not serve as members of the LBBCA.

D. Section 119.4 Conduct of members. No member shall hear an appeal in which that member has a conflict of interest in accordance with the State and Local Government Conflict of Interests Act (§ 2.2-3100 et seq. of the Code of Virginia). Members shall not discuss the substance of an appeal with any other party or their representatives prior to any hearings.

E. Section 119.5 Right of appeal; filing of appeal application. The owner of a building or structure, the owner's agent or any other person involved in the design or construction of a building or structure may appeal a decision of the building official concerning the application of the USBC to such building or structure and may also appeal a refusal by the building official to grant a modification to the provisions of the USBC pertaining to such building or structure. The applicant shall submit a written request for appeal to the LBBCA within 30 calendar days of the receipt of the decision being appealed. The application shall contain the name and address of the owner of the building or structure and in addition, the name and address of the person appealing, when the applicant is not the owner. A copy of the building official's decision shall be submitted along with the application for appeal and maintained as part of the record. The application shall be marked by the LBBCA to indicate the date received. Failure to submit an application for appeal within the time limit established by this section shall constitute acceptance of a building official's decision.

Note: To the extent that a decision of a building official pertains to amusement devices there may be a right of appeal under the VADR.

F. Section 119.6 Meetings and postponements. The LBBCA shall meet within 30 calendar days after the date of receipt of the application for appeal, except that a longer time period shall be permitted if agreed to by all the parties involved in the appeal. A notice indicating the time and place of the hearing shall be sent to the parties in writing to the addresses listed on the application at least 14 calendar days prior to the date of the hearing, except that a lesser time period shall be permitted if agreed to by all the parties involved in the appeal. When a quorum of the LBBCA is not present at a hearing to hear an appeal, any party involved in the appeal shall have the right to request a postponement of the hearing. The LBBCA shall reschedule the appeal within 30 calendar days of the postponement, except that a longer time period shall be permitted if agreed to by all the parties involved in the appeal.

G. Section 119.7 Hearings and decision. All hearings before the LBBCA shall be open meetings and the appellant, the appellant's representative, the locality's representative and any person whose interests are affected by the building official's decision in question shall be given an opportunity to be heard. The chairman shall have the power and duty to direct the hearing, rule upon the acceptance of evidence and oversee the record of all proceedings. The LBBCA shall have the power to uphold, reverse or modify the decision of the official by a concurring vote of a majority of those present. Decisions of the LBBCA shall be final if no further appeal is made. The decision of the LBBCA shall be by resolution signed by the chairman and retained as part of the record of the appeal. Copies of the resolution shall be sent to all parties by certified mail. In addition, the resolution shall contain the following wording:

"Any person who was a party to the appeal may appeal to the State Review Board by submitting an application to such Board within 21 calendar days upon receipt by certified mail of this resolution. Application forms are available from the Office of the State Review Board, 501 North Second 600 East Main Street, Richmond, Virginia 23219, (804) 371-7150."

H. Section 119.8 Appeals to the State Review Board. After final determination by the LBBCA in an appeal, any person who was a party to the appeal may further appeal to the State Review Board. In accordance with § 36-98.2 of the Code of Virginia for state-owned buildings and structures, appeals by an involved state agency from the decision of the building official for state-owned buildings or structures shall be made directly to the State Review Board. The application for appeal shall be made to the State Review Board within 21 calendar days of the receipt of the decision to be appealed. Failure to submit an application within that time limit shall constitute an acceptance of the building official's decision. For appeals from a LBBCA, a copy of the building official's decision and the resolution of the LBBCA shall be submitted with the application for appeal to the State Review Board. Upon request by the office of the State Review Board, the LBBCA shall submit a copy of all pertinent information from the record of the appeal. In the case of appeals involving state-owned buildings or structures, the involved state agency shall submit a copy of the building official's decision and other relevant information with the application for appeal to the State Review Board. Procedures of the State Review Board are in accordance with Article 2 (§ 36-108 et seq.) of Chapter 6 of Title 36 of the Code of Virginia. Decisions of the State Review Board shall be final if no further appeal is made.

13VAC5-63-200. Chapter 2 Definitions: Section 202 Definitions.

A. Add the following definitions to Section 202 of the IBC to read:

Building regulations. Any law, rule, resolution, regulation, ordinance or code, general or special, or compilation thereof, heretofore or hereafter enacted or adopted by the Commonwealth or any county or municipality, including departments, boards, bureaus, commissions, or other agencies thereof, relating to construction, reconstruction, alteration, conversion, repair, maintenance, or use of structures and buildings and installation of equipment therein. The term does not include zoning ordinances or other land use controls that do not affect the manner of construction or materials to be used in the erection, alteration or repair of a building or structure.

Construction. The construction, reconstruction, alteration, repair, or conversion of buildings and structures.

Day-night average sound level (Ldn). See Section 1202.1.

DHCD. The Virginia Department of Housing and Community Development.

Emergency communication equipment. See Section 902.1.

Emergency public safety personnel. See Section 902.1.

Equipment. Plumbing, heating, electrical, ventilating, air-conditioning and refrigeration equipment, elevators, dumbwaiters, escalators, and other mechanical additions or installations.

Farm building or structure. A building or structure not used for residential purposes, located on property where farming operations take place, and used primarily for any of the following uses or combination thereof:

1. Storage, handling, production, display, sampling or sale of agricultural, horticultural, floricultural or silvicultural products produced in the farm.

2. Sheltering, raising, handling, processing or sale of agricultural animals or agricultural animal products.

3. Business or office uses relating to the farm operations.

4. Use of farm machinery or equipment or maintenance or storage of vehicles, machinery or equipment on the farm.

5. Storage or use of supplies and materials used on the farm.

6. Implementation of best management practices associated with farm operations.

Industrialized building. A combination of one or more sections or modules, subject to state regulations and including the necessary electrical, plumbing, heating, ventilating and other service systems, manufactured off-site and transported to the point of use for installation or erection, with or without other specified components, to comprise a finished building. Manufactured homes shall not be considered industrialized buildings for the purpose of this code.

LBBCA. Local board of building code appeals (LBBCA). See Section 119.1.

Local building department. The agency or agencies of any local governing body charged with the administration, supervision, or enforcement of this code, approval of construction documents, inspection of buildings or structures, or issuance of permits, licenses, certificates or similar documents.

Local governing body. The governing body of any city, county or town in this Commonwealth.

Locality. A city, county or town in this Commonwealth.

Manufactured home. A structure subject to federal regulation, which is transportable in one or more sections; is eight body feet or more in width and 40 body feet or more in length in the traveling mode, or is 320 or more square feet when erected on site; is built on a permanent chassis; is designed to be used as a single-family 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.

Night club. Any building in which the main use is a place of public assembly that provides exhibition, performance or other forms of entertainment; serves alcoholic beverages; and provides music and space for dancing.

Skirting. A weather-resistant material used to enclose the space from the bottom of the manufactured home to grade.

Sound transmission class (STC) rating. See Section 1202.1.

State regulated care facility (SRCF). A building with an occupancy in Group R-2, R-3, R-4 or R-5 occupied by persons in the care of others where program oversight is provided by the Virginia Department of Social Services, the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services, the Virginia Department of Education or the Virginia Department of Juvenile Justice.

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

Technical assistant. Any person employed by or under an extended contract to a local building department or local enforcing agency for enforcing the USBC, including but not limited to inspectors and plans reviewers. For the purpose of this definition, an extended contract shall be a contract with an aggregate term of 18 months or longer.

VADR. The Virginia Amusement Device Regulations (13VAC5-31).

VCS. The Virginia Certification Standards (13VAC5-21).

Working day. A day other than Saturday, Sunday or a legal local, state or national holiday.

B. Change the following definitions in Section 202 of the IBC to read:

Building. A combination of materials, whether portable or fixed, having a roof to form a structure for the use or occupancy by persons, or property. The word "building" shall be construed as though followed by the words "or part or parts thereof" unless the context clearly requires a different meaning. "Building" shall not include roadway tunnels and bridges owned by the Virginia Department of Transportation, which shall be governed by construction and design standards approved by the Virginia Commonwealth Transportation Board.

For application of this code, each portion of a building that is completely separated from other portions by fire walls complying with Section 705 706 shall be considered as a separate building (see IBC Section 503.1).

Canopy. A structure or architectural projection of rigid construction over which a covering is attached that provides weather protection, identity or decoration and may be structurally independent or supported by attachment to a building on one end by not less than one stanchion on the outer end.

Owner. The owner or owners of the freehold of the premises or lesser estate therein, a mortgagee or vendee in possession, assignee of rents, receiver, executor, trustee or lessee in control of a building or structure.

Registered Design Professional (RDP). An architect or professional engineer, licensed to practice architecture or engineering, as defined under § 54.1-400 of the Code of Virginia.

Structure. An assembly of materials forming a construction for occupancy or use including stadiums, gospel and circus tents, reviewing stands, platforms, stagings, observation towers, radio towers, water tanks, storage tanks (underground and aboveground), trestles, piers, wharves, swimming pools, amusement devices, storage bins, and other structures of this general nature but excluding water wells. The word "structure" shall be construed as though followed by the words "or part or parts thereof" unless the context clearly requires a different meaning. "Structure" shall not include roadway tunnels and bridges owned by the Virginia Department of Transportation, which shall be governed by construction and design standards approved by the Virginia Commonwealth Transportation Board.

C. Delete the following definitions from Section 202 of the IBC:

Agricultural, building.

Existing building structure.

13VAC5-63-210. Chapter 3 Use and occupancy classification.

A. Change exception 15 13 of Section 307.1 of the IBC to read:

15. 13. The storage of black powder, smokeless propellant and small arms primers in Groups M, R-3 and R-5 and special industrial explosive devices in Groups B, F, M and S, provided such storage conforms to the quantity limits and requirements prescribed in the International Fire Code, as amended in Section 307.9.

B. Add Section 307.9 to the IBC to read:

307.9 Amendments. The following changes shall be made to the International Fire Code for the use of Exception 15 13 in Section 307.1:

1. Change Section 314.1 of the IFC to read as follows:

314.1 General. Indoor displays constructed within any building or structure shall comply with Sections 314.2 through 314.5.

2. Add new Section 314.5 to the IFC to read as follows:

314.5 Smokeless powder and small arms primers. Vendors shall not store, display or sell smokeless powder or small arms primers during trade shows inside exhibition halls except as follows:

1. The amount of smokeless powder each vender may store is limited to the storage arrangements and storage amounts established in Section 3306.5.2.1.

2. Smokeless powder shall remain in the manufacturer's original sealed container and the container shall remain sealed while inside the building. The repackaging of smokeless powder shall not be performed inside the building. Damaged containers shall not be repackaged inside the building and shall be immediately removed from the building in such manner to avoid spilling any powder.

3. There shall be at least 50 feet separation between vendors and 20 feet from any exit.

4. Small arms primers shall be displayed and stored in the manufacturer's original packaging and in accordance with the requirements of Section 3306.5.2.3.

3. Change Exception 4 and add Exceptions 10 and 11 to Section 3301.1 of the IFC as follows:

4. The possession, storage and use of not more than 15 pounds (6.75 kg) of commercially manufactured sporting black powder, 20 pounds (9 kg) of smokeless powder and any amount of small arms primers for hand loading of small arms ammunition for personal consumption.

10. The display of small arms primers in Group M when in the original manufacturer's packaging.

11. The possession, storage and use of not more than 50 pounds (23 kg) of commercially manufactured sporting black powder, 100 pounds (45 kg) of smokeless powder, and small arms primers for hand loading of small arms ammunition for personal consumption in Group R-3 or R-5, or 200 pounds (91 kg) of smokeless powder when stored in the manufacturer's original containers in detached Group U structures at least 10 feet (3048 mm) from inhabited buildings and are accessory to Group R-3 or R-5.

4. Change the definition of Smokeless Propellants in Section 3302.1 of the IFC as follows:

SMOKELESS PROPELLANTS. Solid propellants, commonly referred to as smokeless powders, or any propellants classified by DOTn as smokeless propellants in accordance with NA3178 (Smokeless Powder for Small Arms), used in small arms ammunition, firearms, cannons, rockets, propellant-actuated devices and similar articles.

5. Change Section 3306.4 of the IFC to read as follows:

3306.4 Storage in residences. Propellants for personal use in quantities not exceeding 50 pounds (23 kg) of black powder or 100 pounds (45 kg) of smokeless powder shall be stored in original containers in occupancies limited to Group R-3 and R-5 or 200 pounds (91 kg) of smokeless powder when stored in the manufacturer's original containers in detached Group U structures at least 10 feet (3048 mm) from inhabited buildings and are accessory to Group R-3 or R-5. In other than Group R-3 or R-5, smokeless powder in quantities exceeding 20 pounds (9 kg) but not exceeding 50 pounds (23 kg) shall be kept in a wooden box or cabinet having walls of at least one inch (25 mm) nominal thickness or equivalent.

6. Delete Sections 3306.4.1 and 3306.4.2 of the IFC.

7. Change Section 3306.5.1.1 of the IFC to read as follows:

3306.5.1.1 Smokeless propellant. No more than 100 pounds (45 kg) of smokeless propellants in containers of eight pounds (3.6 kg) or less capacity shall be displayed in Group M occupancies.

8. Delete Section 3306.5.1.3 of the IFC.

9. Change Section 3306.5.2.1 of the IFC as follows:

3306.5.2.1 Smokeless propellant. Commercial stocks of smokeless propellants shall be stored as follows:

1. Quantities exceeding 20 pounds (9 kg), but not exceeding 100 pounds (45 kg) shall be stored in portable wooden boxes having walls of at least one inch (25 mm) nominal thickness or equivalent.

2. Quantities exceeding 100 pounds (45 kg), but not exceeding 800 pounds (363 kg), shall be stored in storage cabinets having walls at least one inch (25 mm) nominal thickness or equivalent. Not more than 400 pounds (182 kg) shall be stored in any one cabinet, and cabinets shall be separated by a distance of at least 25 feet (7620 mm) or by a fire partition having a fire-resistance rating of at least one hour.

3. Storage of quantities exceeding 800 pounds (363 kg), but not exceeding 5,000 pounds (2270 kg) in a building shall comply with all of the following:

3.1. The storage is inaccessible to unauthorized personnel.

3.2. Smokeless propellant shall be stored in nonportable storage cabinets having wood walls at least one inch (25 mm) nominal thickness or equivalent and having shelves with no more than 3 feet (914 mm) of vertical separation between shelves.

3.3. No more than 400 pounds (182 kg) is stored in any one cabinet.

3.4. Cabinets shall be located against walls with at least 40 feet (12 192 mm) between cabinets. The minimum required separation between cabinets may be reduced to 20 feet (6096 mm) provided that barricades twice the height of the cabinets are attached to the wall, midway between each cabinet. The barricades must extend a minimum of 10 feet (3048 mm) outward, be firmly attached to the wall, and be constructed of steel not less than 0.25 inch thick (6.4 mm), 2-inch (51 mm) nominal thickness wood, brick, or concrete block.

3.5. Smokeless propellant shall be separated from materials classified as combustible liquids, flammable liquids, flammable solids, or oxidizing materials by a distance of 25 feet (7620 mm) or by a fire partition having a fire-resistance rating of 1 hour.

3.6. The building shall be equipped throughout with an automatic sprinkler system installed in accordance with Section 903.3.1.1.

4. Smokeless propellants not stored according to Item 1, 2, or 3 above shall be stored in a Type 2 or 4 magazine in accordance with Section 3304 and NFPA 495.

D. C. Change Section 308.5.2 of the IBC to read:

308.5.2 Child care facility. A facility other than family day homes under Section 310.4 that provides supervision and personal care on less than a 24-hour basis for more than five children 2-1/2 years of age or less shall be classified as Group I-4.

Exception: A child day care facility that provides care for more than five but no more than 100 children 2-1/2 years or less of age, when where the rooms where such in which the children are cared for are located on the a level of exit discharge serving such rooms and each of these child care rooms has an exit door directly to the exterior, shall be classified as Group E.

E. D. Change occupancy classifications "R-1" and "R-4" and add new occupancy classification "R-5" to Section 310 of the IBC to read:

R-1 Residential occupancies containing sleeping units where the occupants are primarily transient in nature, including:

Boarding houses (transient)

Hotels (transient)

Motels (transient)

Congregate living facilities (transient) with 10 or fewer occupants are permitted to comply with the construction requirements for Group R-3.

Exceptions:

1. Nonproprietor occupied bed and breakfast and other transient boarding facilities not more than three stories above grade plane in height with a maximum of 10 occupants total are permitted to be classified as either Group R-3 or Group R-5 provided that smoke alarms are installed in compliance with Section 907.2.10.1.2 for Group R-3 or Section 313.1 of the International Residential Code for Group R-5.

2. Proprietor occupied bed and breakfast and other transient boarding facilities not more than three stories above grade plane in height, that are also occupied as the residence of the proprietor, with a maximum of five guest room sleeping units provided for the transient occupants are permitted to be classified as either Group R-3 or R-5 provided that smoke alarms are installed in compliance with Section 907.2.10.1.2 for Group R-3 or Section 313.1 of the International Residential Code for Group R-5.

R-4 Residential occupancies shall include buildings arranged for occupancy as residential care/assisted living facilities including more than five but not more than 16 occupants, excluding staff.

Group R-4 occupancies shall meet the requirements for construction as defined for Group R-3, except as otherwise provided for in this code, or shall comply with the International Residential Code with the additional requirement to provide IRC provided the building is protected by an automatic sprinkler system installed in accordance with Section 903.2.7.

Exception: Group homes licensed by the Virginia Department of Mental Health, Mental Retardation and Substance Abuse Behavioral Health and Developmental Services or the Virginia Department of Social Services that house no more than eight persons with one or more resident counselors shall be classified as Group R-2, R-3, R-4 or R-5. Not more than five of the persons may require physical assistance from staff to respond to an emergency situation.

R-5 Residential occupancies in detached one- and two-family dwellings, townhouses and accessory structures within the scope of the International Residential Code, also referred to as the "IRC."

F. E. Add Section 310.3 to the IBC to read:

310.3 Group R-5. The construction of Group R-5 structures shall comply with the IRC. The amendments to the IRC set out in Section 310.6 shall be made to the IRC for its use as part of this code. In addition, all references to Section 101.2 in the IBC relating to the construction of such structures subject to the IRC shall be considered to be references to this section.

G. F. Add Section 310.3.1 to the IBC to read:

310.3.1 Additional requirements. Methods of construction, materials, systems, equipment or components for Group R-5 structures not addressed by prescriptive or performance provisions of the IRC shall comply with applicable IBC requirements.

H. G. Add Section 310.4 to the IBC to read:

310.4 Family day homes. Family day homes where program oversight is provided by the Virginia Department of Social Services shall be classified as Group R-2, R-3 or R-5.

Note: Family day homes may generally care for up to 12 children. See the DHCD Related Laws Package for additional information.

I. H. Add Section 310.5 to the IBC to read:

310.5 Radon-resistant construction in Group R-3 and R-4 structures. Group R-3 and R-4 structures shall be subject to the radon-resistant construction requirements in Appendix F in localities enforcing such requirements pursuant to Section R325 of the IRC.

J. I. Add Section 310.6 to the IBC to read:

310.6 Amendments to the IRC. The following changes shall be made to the IRC for its use as part of this code:

1. Add the following definitions to Section R202 to read:

Air-impermeable insulation. An insulation having an air permanence equal to or less than 0.02 L/s-m² at 75 Pa pressure differential tested according to ASTM E2178 or E283.

Subsoil drain. A drain that collects subsurface water or seepage water and conveys such water to a place of disposal.

2. Change the definition of "Story above grade" in Section R202 to read:

Story above grade. Any story having its finished floor surface entirely above grade, except that a basement shall be considered as a story above grade where the finished surface of the floor above the basement meets any one of the following:

1. Is more than 6 feet (1829 mm) above the grade plane.

2. Is more than 6 feet (1829 mm) above the finished ground level for more than 50% of the total building perimeter.

3. Is more than 12 feet (3658 mm) above the finished ground level at any point.

3. 1. Change Section R301.2.1 to read:

R301.2.1 Wind limitations. Buildings and portions thereof shall be limited by wind speed, as defined in Figure R301.2(1), and construction methods in accordance with this code. Basic wind speeds shall be determined from Table R301.2(4). Where different construction methods and structural materials are used for various portions of a building, the applicable requirements of this section for each portion shall apply. Where loads for wall coverings, curtain walls, roof coverings, exterior windows, skylights, garage doors and exterior doors are not otherwise specified, the loads listed in Table R301.2(2) adjusted for height and exposure using Table R301.2(3) shall be used to determine design load performance requirements for wall coverings, curtain walls, roof coverings, exterior windows, skylights, garage doors and exterior doors. Asphalt shingles shall be designed for wind speeds in accordance with Section R905.2.6. Wind speeds for localities in special wind regions, near mountainous terrain, and near gorges shall be based on elevation. Areas at 4,000 feet in elevation or higher shall use 110 V mph (48.4 m/s) and areas under 4,000 feet in elevation shall use 90 V mph (39.6 m/s). Gorge areas shall be based on the highest recorded speed per locality or in accordance with local jurisdiction requirements determined in accordance with Section 6.5.4 of ASCE 7.

4. 2. Change Section R301.2.1.1 to read:

R301.2.1.1 Design criteria. Construction in regions where the basic wind speeds from Figure R301.2(4) equal or exceed 110 miles per hour (49 m/s) shall be designed in accordance with one of the following: methods. The elements of design not addressed by those documents in items 1 through 4 shall be in accordance with this code.

1. American Forest and Paper Association (AF&PA) Wood Frame Construction Manual for One- and Two-Family Dwellings (WFCM); or

2. Southern Building Code Congress International Standard for Hurricane Resistant Residential Construction (SSTD 10) International Code Council (ICC) Standards for Residential Construction in High Wind Regions (ICC-600); or

3. Minimum Design Loads for Buildings and Other Structures (ASCE-7); or

4. American Iron and Steel Institute (AISI), Standard for Cold-Formed Steel Framing-Prescriptive Method for One- and Two-Family Dwellings (COFS/PM) with Supplement to Standard for Cold-Formed Steel Framing-Prescriptive Method for One- and Two-Family Dwellings (AISI S230).

5. Concrete construction shall be designed in accordance with the provisions of this code.

6. Structural insulated panel (SIP) walls shall be designed in accordance with the provisions of this code.

5. Change Table R301.7 to read:

6. Change Section R302.1 to read:

R302.1 Exterior walls. Construction, projections, openings and penetrations of exterior walls of dwellings and accessory buildings shall comply with Table R302.1.

Exceptions:

1. Walls, projections, openings or penetrations in walls perpendicular to the line use to determine the fire separation distance.

2. Walls of dwellings and accessory structures located on the same lot.

3. Detached tool sheds and storage sheds, playhouses and similar structures exempted from permits are not required to provide wall protection based on location on the lot. Projections beyond the exterior wall shall not extend over the lot line.

4. Detached garages accessory to a dwelling located within two feet (610 mm) of a lot line are permitted to have roof eave projections not exceeding four inches (102 mm).

5. Foundation vents installed in compliance with this code are permitted.

3. Change the exception in Section R302.2 to require a common two-hour fire-resistance-rated wall instead of a one-hour fire-resistance-rated wall.

4. Add the following sentence to the end of Section R302.3 to read:

Dwelling unit separation wall assemblies that are constructed on a lot line shall be constructed as required in Section R302.2 for townhouses.

7. 5. Add an exception to Section R303.8 to read:

Exception: Seasonal structures not used as a primary residence for more than 90 days per year, unless rented, leased or let on terms expressed or implied to furnish heat, shall not be required to comply with this section.

8. 6. Add Section R303.8.1 to read:

R303.8.1 Nonowner occupied required heating. Every dwelling unit or portion thereof which is to be rented, leased or let on terms either expressed or implied to furnish heat to the occupants thereof shall be provided with facilities in accordance with Section R303.8 during the period from October 15 to May 1.

9. 7. Add Section R303.9 to read:

R303.9 Insect screens. Every door, window and other outside opening required for ventilation purposes shall be supplied with approved tightly fitted screens of not less than 16 mesh per inch (16 mesh per 25 mm) and every screen door used for insect control shall have a self-closing device.

10. 8. Add Section R306.5 to read:

R306.5 Water supply sources and sewage disposal systems. The water and drainage system of any building or premises where plumbing fixtures are installed shall be connected to a public or private water supply and a public or private sewer system. As provided for in Section 103.11 for functional design, water supply sources and sewage disposal systems are regulated and approved by the Virginia Department of Health and the Virginia Department of Environmental Quality.

Note: See also the Memorandums of Agreement in the "Related Laws Package," which is available from the Virginia Department of Housing and Community Development.

11. 9. Change Section R310.1 to read:

R310.1 Emergency escape and rescue required. Basements and each sleeping room designated on the construction documents shall have at least one openable emergency escape and rescue opening. Such opening shall be directly to the exterior of the building or to a deck, screen porch or egress court, all of which shall provide access to a public street, public alley or yard. Where emergency escape and rescue openings are provided, they shall have a sill height of not more than 44 inches (1118 mm) above the floor. Where a door opening having a threshold below the adjacent ground elevation serves as an emergency escape and rescue opening and is provided with a bulkhead enclosure, the bulkhead enclosure shall comply with Section R310.3. The net clear opening dimensions required by this section shall be obtained by the normal operation of the emergency escape and rescue opening from the inside, except that tilt-out or removable sash designed windows shall be permitted to be used. Emergency escape and rescue openings with a finished height below the adjacent ground elevation shall be provided with a window well in accordance with Section R310.2.

Exceptions:

1. Dwelling units equipped throughout with an approved automatic sprinkler system installed in accordance with NFPA 13, 13R or 13D.

2. Basements used only to house mechanical equipment and not exceeding total floor area of 200 square feet (18.58 m²).

12. 10. Change Section R310.1.1 to read:

R310.1.1 Minimum opening area. All emergency escape and rescue openings shall have a minimum net clear opening of 5.7 square feet (0.530 m²), including the tilting or removal of the sash as the normal operation to comply with sections R310.1.2 and R310.1.3.

Exception: Grade floor openings shall have a minimum net clear opening of 5 square feet (0.465 m²).

13. 11. Change Section R311.5.3.1 R311.7.4.1 to read:

R311.5.3.1 R311.7.4.1 Riser height. The maximum riser height shall be 8-1/4 inches (210 mm). The riser shall be measured vertically between the leading edges of the adjacent treads. The greatest riser height within any flight of stairs shall not exceed the smallest by more than 3/8 inch (9.5 mm).

14. 12. Change Section R311.5.3.2 R311.7.4.2 to read:

R311.5.3.2 R311.7.4.2 Tread depth. The minimum tread depth shall be 9 inches (229 mm). The tread depth shall be measured horizontally between the vertical planes of the foremost projection of adjacent treads and at a right angle to the tread's leading edge. The greatest tread depth within any flight of stairs shall not exceed the smallest by more than 3/8 inch (9.5 mm). Consistently shaped winders at the walkline shall be allowed within the same flight of stairs as rectangular treads and do not have to be within 3/8 inch (9.5 mm) of the rectangular tread depth. Winder treads shall have a minimum tread depth of 10 inches (254 mm) measured as above at a point 12 inches (305 mm) from the side where the treads are narrower between the vertical planes of the foremost projection of adjacent treads at the intersection with the walkline. Winder treads shall have a minimum tread depth of 6 inches (152 mm) at any point within the clear width of the stair. Within any flight of stairs, the greatest largest winder tread depth at the 12 inch (305 mm) walk line walkline shall not exceed the smallest winder tread by more than 3/8 inch (9.5 mm).

15. 13. Change Section R311.5.5 R311.7.6 to read:

R311.5.5 R311.7.6 Stairway walking surface. The walking surface of treads and landings of stairways shall be level or sloped no steeper than one unit vertical in 48 inches horizontal (two-percent slope).

16. Change Section R317.1 to read:

R317.1 Two-family dwellings. Dwelling units in two-family dwellings shall be separated from each other by wall and/or floor assemblies having not less than a 1-hour fire-resistance rating when tested in accordance with ASTM E119. Fire-resistance-rated floor-ceiling and wall assemblies shall extend to and be tight against the exterior wall, and wall assemblies shall extend to and be tight against the underside of the roof sheathing. Dwelling unit separation wall assemblies, which are constructed on a lot line, shall be constructed as required in Section R317.1 for townhouses.

Exceptions:

1. A fire-resistance rating of 1/2 hour shall be permitted in buildings located entirely on the same lot and equipped throughout with an automatic sprinkler system installed in accordance with NFPA 13.

2. For two-family dwellings located on the same lot, wall assemblies need not extend through attic spaces when the ceiling is protected by not less than 5/8-inch (15.9 mm) Type X gypsum board and an attic draft stop constructed as specified in Section R502.12.1 is provided above and along the wall assembly separating the dwellings. The structural framing supporting the ceiling shall also be protected by not less than 1/2-inch (12.7 mm) gypsum board or equivalent.

14. Replace Section R313 with the following:

Section R313.

Automatic Fire Sprinkler Systems.

R313.1 Townhouse automatic fire sprinkler systems. Notwithstanding the requirements of Section 103.8, where installed, an automatic residential fire sprinkler system for townhouses shall be designed and installed in accordance with NFPA 13D or Section P2904.

Exception: An automatic residential fire sprinkler system shall not be required when additions or alterations are made to existing townhouses that do not have an automatic residential fire sprinkler system installed.

R313.2 One- and two-family dwellings automatic fire sprinkler systems. Notwithstanding the requirements of Section 103.8, where installed, an automatic residential fire sprinkler system shall be designed and installed in accordance with NFPA 13D or Section P2904.

Exception: An automatic residential fire sprinkler system shall not be required for additions or alterations to existing buildings that are not already provided with an automatic residential fire sprinkler system.

17. 15. Add Section R325 R324 Radon-Resistant Construction.

18. 16. Add Section R325.1 R324.1 to read:

R325.1 R324.1 Local enforcement of radon requirements. Following official action under Article 7 (§ 15.2-2280 et seq.) of Chapter 22 of Title 15.2 of the Code of Virginia by a locality in areas of high radon potential, as indicated by Zone 1 on the U.S. EPA Map of Radon Zones (IRC Figure AF101), such locality shall enforce the provisions contained in Appendix F.

Exemption: Buildings or portions thereof with crawl space foundations which are ventilated to the exterior, shall not be required to provide radon-resistant construction.

19. 17. Add Section R326 R325 Swimming Pools, Spas and Hot Tubs.

20. 18. Add Section R326.1 R325.1 to read:

R326.1 R325.1 Use of Appendix G for swimming pools, spas and hot tubs. In addition to other applicable provisions of this code, swimming pools, spas and hot tubs shall comply with the provisions in Appendix G.

21. 19. Add Section R327 R326 Patio Covers.

22. 20. Add Section R327.1 R326.1 to read:

R327.1 R326.1 Use of Appendix H for patio covers. Patio covers shall comply with the provisions in Appendix H.

23. 21. Add Section R328 R327 Sound Transmission.

24. 22. Add Section R328.1 R327.1 to read:

R328.1 R327.1 Sound transmission between dwelling units. Construction assemblies separating dwelling units shall provide airborne sound insulation as required in Appendix K.

25. 23. Add Section R328.2 R327.2 to read:

R328.2 R327.2 Airport noise attenuation. This section applies to the construction of the exterior envelope of detached one- and two-family dwellings and multiple single-family dwellings (townhouses) not more than three stories high with separate means or egress within airport noise zones when enforced by a locality pursuant to § 15.2-2295 of the Code of Virginia. The exterior envelope of such structures shall comply with Section 1207.4 of the state amendments to the IBC.

26. Change Section R401.4 to read:

R401.4 Soil tests. Where quantifiable data created by sound soil science methodologies indicate expansive, compressible, shifting or unknown soil characteristics are likely to be present, the building official shall determine whether to require a soil test to determine the soil's characteristics at a particular location. This test shall be made by an approved agency using an approved method.

27. 24. Change Section R403.1 to read:

R403.1 General. All exterior walls shall be supported on continuous solid or fully grouted masonry or concrete footings, wood foundations, or other approved structural systems which shall be of sufficient design to accommodate all loads according to Section R301 and to transmit the resulting loads to the soil within the limitations as determined from the character of the soil. Footings shall be supported on undisturbed natural soils or engineered fill.

Exception: One-story detached accessory structures used as tool and storage sheds, playhouses and similar uses, not exceeding 256 square feet (23.7824 m²) of building area, provided all of the following conditions are met:

1. The building eave height is 10 feet or less.

2. The maximum height from the finished floor level to grade does not exceed 18 inches.

3. The supporting structural elements in direct contact with the ground shall be placed level on firm soil and when such elements are wood they shall be approved pressure preservative treated suitable for ground contact use.

4. The structure is anchored to withstand wind loads as required by this code.

5. The structure shall be of light-frame construction whose vertical and horizontal structural elements are primarily formed by a system of repetitive wood or light gauge steel framing members, with walls and roof of light weight material, not slate, tile, brick or masonry.

28. Change Section R404.1 to read as follows and delete Tables R404.1(1), R404.1(2) and R404.1(3):

R404.1 Concrete and masonry foundation walls. Concrete and masonry foundation walls shall be selected and constructed in accordance with the provisions of Section R404 or in accordance with ACI 318, ACI 332, NCMA TR68-A or ACI 530/ASCE 5/TMS 402 or other approved structural standards.

29. Change Section R408.1 to read:

R408.1 Ventilation. The under-floor space between the bottom of the floor joists and the earth under any building (except space occupied by a basement) shall have ventilation openings through foundation walls or exterior walls. The minimum net area of ventilation openings shall not be less than one square foot (0.0929 m²) for each 150 square feet (14 m²) of under-floor space area. One such ventilating opening shall be within three feet (914 mm) of each corner of the building.

Exception: When the exposed earth is covered with a continuous vapor barrier, the minimum net area of ventilation openings shall be not less than one square foot (0.0929 m²) for each 1,500 square feet (139 m²) of under-floor space area. Joints of the vapor retarder shall overlap by six inches (152 mm).

30. Change Section R408.2 to read:

R408.2 Openings for under-floor ventilation. Ventilation openings shall be covered for their height and width with any of the following materials provided that the least dimension of the covering shall not exceed 1/4 inch (6.4 mm):

1. Perforated sheet metal plates not less than 0.070 inch (1.8 mm) thick.

2. Expanded sheet metal plates not less than 0.047 inch (1.2 mm) thick.

3. Cast-iron grill or grating.

4. Extruded load-bearing brick vents.

5. Hardware cloth of 0.035 inch (0.89 mm) wire or heavier.

6. Corrosion-resistant wire mesh, with the least dimension being 1/8 inch (3.2 mm).

31. Add Section R502.2.2.1 to read:

R502.2.2.1 Deck ledger connection to band joist. For residential applications and a total design load of 50 psf, the connection between a pressure preservative treated southern pine (or approved decay-resistant species) deck ledger and a two-inch nominal band joist bearing on a sill plate or wall plate shall be constructed with 1/2-inch lag screws or bolts with washers per Table R502.2.2.1.