DAR File No. 41349

Commerce, Occupational and Professional Licensing

Rule R156-38b

State Construction Registry Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 41349
Filed: 03/07/2017 03:34:39 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

After a formal review, the Division is proposing this filing to update the State Construction Registry Rule to accord with changes made by H.B. 42, Construction Liens Amendments, during the 2014 General Session, and to make several formatting changes for clarification and correction.

Summary of the rule or change:

Subsection R156-38b-301(4)(b) is revised to correct a statutory citation. Sections R156-38b-505, R156-38b-506, and R156-38b-507 are corrected, respectively, to Sections R156-38b-503, R156-38b-504, and R156-38b-505 to allow for sequential numbering in the rule. Section R156-38b-509 which addresses withdrawal of filings, and Subsection R156-38b-702(c), which references a withdrawn filing, are deleted in their entirety. These deletions are required based on amendments made to Section 38-1a-501 by H.B. 42 (2014), which eliminated the filing "withdraw" function on the State Construction Registry.

Statutory or constitutional authorization for this rule:

• Section 38-1a-101
• Section 38-1b-101

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $75 to print and distribute the rule once the proposed amendments are made effective. Any costs incurred will be absorbed in the Division's current budget.

local governments:

None of the proposed amendments apply to local government, so no impact on local government is anticipated by the Division.

small businesses:

No fiscal impact to small business is anticipated related to these changes. The amended language only makes formatting changes and adds clarification to practices that are already taking place in the industry.

persons other than small businesses, businesses, or local governmental entities:

No fiscal impact to other persons is anticipated related to these changes. The amended language only makes formatting changes and adds clarification to practices that are already taking place in the industry.

Compliance costs for affected persons:

No compliance costs for affected persons is anticipated related to these changes. The amended language only makes formatting changes and adds clarification to practices that are already taking place in the industry.

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule amendment updates the State Construction Registry Rule to comply with changes made by H.B. 42 (2014), and to make several formatting changes for clarification. Section R156-38b-509 and Subsection R156-38b-702(c) are deleted in their entirety. These deletions are required based upon amendments made to Section 38-1a-501 by H.B. 42 (2014). That amendment eliminated the filing "withdrawal" function on the State Construction Registry. No fiscal impact to small business will result from these rule changes.

Francine A. Giani, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Office of Administrative Rules, or at:

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Tracy Naff at the above address, by phone at 801-530-6225, by FAX at 801-530-6511, or by Internet E-mail at tnaff@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

05/01/2017

This rule may become effective on:

05/08/2017

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-38b. State Construction Registry Rule.

R156-38b-301. Duties, Functions, and Responsibilities of the Designated Agent.

In accordance with Subsections 38-1a-202(2) and (4) through (7), the duties, functions, and responsibilities of the designated agent include:

(1) designing, developing, hosting, operating, and maintaining the SCR;

(2) providing training, marketing, and technical support for the SCR;

(3) performing other duties, functions, and responsibilities provided by statute, rule, or contract; and

(4) obtaining and maintaining insurance coverage as follows:

(a) general liability insurance , which at a minimum shall be the amount established for the designated agent's master contract with the State of Utah; and

(b) errors and omissions insurance as required by Subsection [38-1-30(5), ]38-1a-202(5), which may be satisfied by the designated agent's current policy that insures its parent company and all subsidiaries in the amount of $5 Million.

 

R156-38b-[505]503. Alternate Filings.

(1) Alternate Means of Filing. The alternate means of filing are those established by Subsection 38-1a-201(1)(e)(ii), including U.S. Mail and telefax. Private commercial courier is established as an additional alternate means of receipt by the designated agent, but not dispatch from the designated agent.

(2) Content Requirements. The content requirements for alternate means filings shall be the same as for electronic filings as set forth for Notices in Title 38, Chapters 1a and 1b or this rule.

(3) Format Requirements. Alternate means filings shall be submitted in a standard format adopted by the Division in collaboration with the designated agent. Filings not submitted in the standard format, in the sole judgment of the designated agent, shall be rejected and dispatched to the submitter. The filing fee shall be retained by the designated agent as a processing fee for rejecting and dispatching the filing. An additional filing fee shall be due upon resubmission.

(4) Methodology.

(a) U.S. Mail. An alternate means filing by U.S. Mail shall be submitted to the designated agent's mailing address by any method of U.S. Mail.

(b) Express Mail. An alternate means filing by commercial private courier shall be submitted to the designated agent's mailing address by any commercially available method of express mail.

(c) Telefax. An alternate means filing by telefax shall be submitted to the designated agent's toll-free unique SCR fax number.

(5) Processing Requirements.

(a) Transaction Receipt. The designated agent shall confirm a successful alternate method filing and fee payment receipt by sending a transaction receipt as specified in Section R156-38b-602.

(b) Creation of Electronic Image. The designated agent shall create and maintain an electronic image of alternate method filings that are accepted into the SCR. Once an electronic image has been created and the accepted alternate method filing has been entered into the SCR, the original version of the accepted alternate method filing may be destroyed. The electronic image shall remain accessible for audit purposes.

(6) Data Entry Standards.

(a) In accordance with Subsection 38-1a-202(6), the designated agent shall meet or exceed the following data entry standards for alternate means filings:

(i) a primary operator shall manually input information filed by alternate means;

(ii) a secondary operator shall independently input the construction project permit number and original contractor name;

(iii) the designated agent shall automatically compare all entries from the primary and secondary operators for consistency;

(iv) following the above procedures, the designated agent shall visually inspect at least 5% of all notices created by alternate means filing; and

(v) these standards are to be met prior to Internet publication.

 

R156-38b-[506]504. Dates of Filings.

The official filing date of a particular filing shall be determined as follows:

(1) In the case of an electronic filing, it shall be the date the designated agent accepts a filing input by the person making the filing and makes available a payment receipt to the person making the filing.

(2) In the case of an alternate means filing, it shall be the date upon which the designated agent received a filing that was ultimately accepted into the SCR including content requirements and payment.

 

R156-38b-[507]505. Status of and Process for Filings Not Accepted by the Designated Agent.

(1) A filing that is not accepted by the designated agent shall not be considered to be filed.

(2) The designated agent shall electronically indicate to a person whose electronic filing is not accepted that the filing is not accepted and the reason or reasons why it is not accepted. The designated agent shall allow the person making the electronic filing to attempt to correct any defects, if possible.

(3) The designated agent shall notify a person whose alternate means filing is not accepted that the filing is not accepted and the reason or reasons why it is not accepted. The designated agent shall allow the person making the alternate means filing to correct the defect or defects.

(4) A fee payment received with a filing submitted by alternate means that is not accepted shall be retained by the designated agent as the processing fee for handling the incomplete filing.

(5) For auditing purposes, the designated agent shall maintain a record of all processing fees received with filings submitted by alternate means that are not accepted.

 

[R156-38b-509. Withdrawal of Filings.

(1) In accordance with Subsections 38-1a-307(3) and 38-1a-501(5), the designated agent shall, upon request of a person who filed an accepted notice filing allow the person to designate the filing as withdrawn.

(2) Notification of a filing withdrawal shall be provided to the same persons as required for the original successful filing.

(3) A withdrawn filing shall indicate that the filing is no longer given effect.

(4) A withdrawn filing may not be restored, but must be filed as a new filing in accordance with Sections 38-1a-401, 38-1a-501, or 38-1a-506.]

 

R156-38b-702. Archiving Requirements.

(1) In accordance with Subsection 38-1a-202(4)(a), the designated agent shall archive the SCR computer data files semi-annually for auditing purposes.

(2) In accordance with Subsection 38-1a-202(4)(c), filings shall be archived as follows:

(a) one year after the day on which a notice of completion is accepted into the SCR; or

(b) if no notice of completion is filed, two years after the last filing activity for a project[; or

(c) one year after the day on which a filing is withdrawn under Subsection 38-1a-307(3) or 38-1a-501(5)].

(3) For purposes of this section, "archive" means to preserve an original or a copy of computer data files and filings separate from the active SCR.

(4) The designated agent shall maintain a transaction log of archived filings and make it available to the Division upon request for auditing purposes.

 

KEY: electronic preliminary lien filing, notice of commencement, preliminary notice, notice of completion

Date of Enactment or Last Substantive Amendment: [December 10, 2012]2017

Notice of Continuation: December 16, 2014

Authorizing, and Implemented or Interpreted Law: 38-1a-101; 38-1b-101