DAR File No. 44030

Commerce, Occupational and Professional Licensing

Rule R156-15A

State Construction Code Administration and Adoption of Approved State Construction Code Rule

Notice of Proposed Rule

(Amendment)

DAR File No.: 44030
Filed: 09/03/2019 02:09:41 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

After administering the Ombudsman's Land Use Fund for a year, this rule change clarifies and updates the administration of Land Use Grants for training, including the payment of grant funds for food and hourly staff time, and the deduction of student-paid fees from the total grant amounts awarded.

Summary of the rule or change:

In Section R156-15A-230, the amendment prohibits a Department of Commerce (Department) employee from administering the grant process if they are involved in the entity seeking funds from the Department. In Section R156-15A-231, currently there is a maximum reimbursable grant amount, subject to exception through additional justification, of $10/hour times the number of student hours of instruction provided. This amendment increases the per student hour reimbursement from $10/hour to $15/hour. It also codifies what was already Department practice, including a prohibition on reimbursements for gift cards, door prizes, food for participants, and preparation time. In Section R156-15A-232, this amendment unifies the process for limiting reimbursements in the Ombudsman's Land Use Fund with the other funds administered in Section R156-15A-231. Specifically, the reimbursement limit based on attendee fees has been removed, and a $15 per student hour cap was implemented, subject to a request for exception. It also provides specific guidance consistent with Department intent on the issues of reimbursement for food, gift cards, door prizes, preparation time, travel time, and other expenditures that generally do not qualify for reimbursement.

Statutory or constitutional authorization for this rule:

• Subsection 58-1-202(1)(a)
• Subsection 58-1-106(1)(a)
• Section 15A-1-205
• Subsection 15A-1-204(6)

Anticipated cost or savings to:

the state budget:

Grants provided under this rule are paid for out of a statutory 1% surcharge on all building permits that are kept in a fund for that purpose. Nothing in this rule will change the amount of fees collected or the cost of administering the program. Therefore, the state budget will not be affected, beyond a minimal cost to the Division of Occupational and Professional Licensing (Division) of approximately $75 to print and distribute the rule once the proposed amendments are made effective.

local governments:

Local governments have not historically applied for grants under the funds and therefore would not be affected by this rule change.

small businesses:

These proposed amendments will apply to any small-business providers who will seek grant money from any of the funds described in these amendments. This may include providers in this industry (NAICS 813910) who will offer code training for licensed inspectors, who will offer code training for construction-related licensees, and who will offer land use training. The Division estimates that there are approximately 38 small businesses who may offer code trainings, and approximately 15 who may offer land use trainings. The benefit or cost to these organizations is inestimable. The increase of the per student hour cap from $10 to $15 per hour could result in a benefit to the approximately 38 small businesses that offer code training. However, the preexisting $10/student hour cap was subject to exception. It is unknown whether this will result in organizations receiving additional funds that would not have qualified for an exception previously. The removal of the deduction based on fees charged to attendees could result in an increased grant in some cases to the approximately 15 organizations that may offer land use training, however there was already a process in place for asking for fees in excess of this amount. In addition, there will also be an imposition of a $15/per student hour fee cap that did not previously exist. Whether this interaction will result in an increase or decrease in the total amount of grants paid is inestimable. Further, in cases where a charge of over $15/per student hour is needed, grant applicants may ask for an exception to the cap.

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

These proposed amendments will apply to individual providers who will seek grant money from any of the funding accounts described in these amendments. This may include individual providers offering code training for licensed inspectors, individual providers offering code training for construction-related licensees, and individual providers offering land use training. These proposed amendments will also indirectly affect Utah's approximately 670 licensed building inspectors seeking code training, and to Utah's approximately 53,000 construction-related licensees seeking code training. These proposed amendments will also indirectly affect individuals using the land use education and training funds administered by the Office of the Property Rights Ombudsman. If the increase in the per student hour cap results in higher grant awards, the approximately 670 licensed building inspectors seeking code training, and Utah's approximately 53,000 construction-related licensees seeking code training could see an inestimable indirect benefit through either an increase in the quality of training or through decreased fees from events. It is possible that individuals using the land use education fund could have an inestimable indirect cost if the removal of the grant reduction based on attendee cost results in more organizations choosing to charge for events, however it is unknown whether organizations will choose to increase prices.

Compliance costs for affected persons:

These proposed amendments provide specifics to existing rules relating to fund administration that would not result in an increase in compliance costs beyond what is already in statute and the previous rule.

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

After administering the Ombudsman's Land Use Fund for a year, these rule amendments clarify and update the administration of Land Use Grants for training, including the payment of grant funds for food and gifts for training participants, hourly staff time, and the deduction of student-paid fees from the total grant amounts awarded. Small Businesses (fewer than 50 employees): These proposed amendments will apply to any small-business providers who will seek grant money from any of the funds described in these amendments. This may include providers in this industry (NAICS 813910) who will offer code training for licensed inspectors, who will offer code training for construction-related licensees, or who will offer land use training. The Division estimates that there are approximately 38 small businesses who may offer code trainings, and approximately 15 who may offer land use trainings. The benefit or cost to these organizations is inestimable. The increase of the per student hour cap from $10 to $15 per hour could result in a benefit to the approximately 38 small businesses that offer code training. However, the preexisting $10/student hour cap was subject to exception. It is unknown whether this will result in organizations receiving additional funds that would not have qualified for an exception previously. The removal of the deduction based on fees charged to attendees could result in an increased grant in some cases to the approximately 15 organizations that may offer land use training, however there was already a process in place for asking for fees in excess of this amount. In addition, there will also be an imposition of a $15/per student hour fee cap that did not previously exist. Whether this interaction will result in an increase or decrease in the total amount of grants paid is inestimable. Further, in cases where a charge of over $15/per student hour is needed, grant applicants may ask for an exception to the cap.

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:

• Robyn Barkdull at the above address, by phone at 801-530-6727, by FAX at 801-530-6511, or by Internet E-mail at rbarkdull@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:

10/15/2019

This rule may become effective on:

10/22/2019

Authorized by:

Mark Steinagel, Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$0	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$0	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

Most recipients of grants affected by the proposed amendments have fewer than 50 employees. If larger organizations do apply for grants for land use training, the benefit or cost to these organizations is inestimable for the same reasons stated with regard to small businesses.

 

The head of the Department of Commerce, Francine Giani, has reviewed and approved this fiscal analysis.

 

 

R156. Commerce, Occupational and Professional Licensing.

R156-15A. State Construction Code Administration and Adoption of Approved State Construction Code Rule.

R156-15A-230. Building Code Training Fund Fees and Factory Built Housing Fees.

(1) In accordance with Subsection 15A-1-209(5)(a), on April 30, July 31, October 31 and January 31 of each year, each state agency and each state political subdivision that assesses a building permit fee shall:

(a) file with the Division a report of building fees and surcharge for the immediately preceding calendar quarter; and

(b) remit 85% of the amount of the surcharge collected to the Division.

(2) In accordance with Subsection 15A-1-209(5)(c), the Division shall allocate and deposit the monies received under Subsection 15A-1-209(5)(a)(ii) into the following three separate funding accounts:

(a) 30% to the Division's Building Code Inspector Training Fund, to be held, administered, and distributed pursuant to Section R156-15A-231 to provide education regarding codes and code amendments to building inspectors;

(b) 10% to the Division's Building Code Construction-Related Training Fund, to be held, administered, and distributed pursuant to Section R156-15A-231 to provide education regarding codes and code amendments to individuals licensed in construction trades or related professions; and

(c) 60% to the Ombudsman's Land Use Fund, to be held, administered, and distributed pursuant to Section R156-15A-232 to provide education and training regarding:

(i) the drafting and application of land use laws and regulations; and

(ii) land use dispute resolution.

(3) In accordance with Subsection 58-56-17.5(2)(c), the Division shall hold, administer, and distribute a portion of the monies in the Factory Built Housing Fees Account pursuant to Section R156-15A-231 to provide education for factory built housing.

(4) Department of Commerce Employees may not participate in the administration, selection, or payment of grants to an organization under Section R156-15A-231 or R156-15A-232 if the Department of Commerce Employee:

(a) is in a leadership position with the entity, including membership on a board of directors or the equivalent;

(b) is an employee of the entity or has received payment of any kind from the entity in the last five years; or

(c) has any other relationships with the entity or individuals affiliated with the entity that could lead to a reasonable question about the employee's impartiality.

 

R156-15A-231. Administration of Building Code Inspector Training Fund, Building Code Construction-Related Training Fund, and Factory Built Housing Fees Account.

In accordance with Subsections 15A-1-209(5)(c) and 58-56-17.5(2)(c), and Section R156-15A-230, the following procedures, standards, and policies are established to apply to the administration of the Building Code Inspector Training Fund, the Building Code Construction-Related Training Fund, and the Factory Built Housing Fees Account:

(1) The Division shall not approve or deny education grant requests from any separate fund or account until the Uniform Building Code Commission (UBCC) Education Advisory Committee ("the Committee"), created in accordance with Subsections 58-1-203(1)(f) and R156-15A-201(1)(a), has considered and made its recommendations on the requests.

(2) Appropriate funding expenditure categories include:

(a) for the Building Code Inspector Training Fund or the Factory Built Housing Fees Account, grants in the form of reimbursement funding to the following organizations that administer code-related training or factory built housing educational events, seminars, or classes:

(i) schools, colleges, universities, departments of universities, or other institutions of learning;

(ii) construction trade associations;

(iii) professional associations or organizations; and

(iv) governmental agencies;

(b) for the Building Code Construction-Related Training Fund, grants in the form of reimbursement funding to the following organizations that administer code-related training events, seminars, or classes:

(i) construction trade associations; or

(ii) professional associations;

(c) costs or expenses incurred as a result of code events, seminars, or classes directly administered by the Division;

(d) expenses incurred for the salary, benefits, or other compensation and related expenses resulting from the employment of a Board Secretary;

(e) office equipment and associated administrative expenses required for the performance of the duties of the Board Secretary, including but not limited to computer equipment, telecommunication equipment and costs and general office supplies; and

(f) other related expenses as determined by the Division.

(g) Gift cards, door prizes, and the cost of food and food services provided to training participants are not appropriate funding expenditure categories, and may not be paid or reimbursed from any fund.

(3) The following procedure shall be used for submission, review, and payment of funding grants:

(a) A funding grant applicant shall submit a completed application on forms provided for that purpose by the Division, at least 15 days prior to the meeting at which the request is to be considered, and prior to the training event. Applications received less than 15 days prior to a meeting may be denied.

(b) Payment of approved funding grants shall be made as reimbursement after:

(i) the approved event, class, or seminar has been held; and

(ii) the required receipts, invoices, and supporting documentation, including proof of payment if requested by the Division or Committee, have been submitted to the Division.

(c) Approved funding grants shall be reimbursed only for eligible expenditures which have been executed in good faith with the intent to ensure the best reasonable value.

(d)(i) A Request for Reimbursement of an approved funding grant shall be submitted to the Division within 60 days following the approved event, class, or seminar, unless an extenuating circumstance occurs. Written notice shall be given to the Division of such an extenuating circumstance.

(ii) Failure to submit a Request for Reimbursement within 60 days shall result in non-payment of approved funds, unless an extenuating circumstance has been reviewed and accepted by the Division.

(4) The Committee shall consider the following in determining whether to recommend approval of a proposed funding request to the Division:

(a) the fund balance available and whether the proposed request meets the overall training objectives of the fund, including:

(i) the need for training on the subject matter;

(ii) the need for training in the geographical area where the training is offered; and

(iii) the need for training on new codes being considered for adoption;

(b) whether the grant applicant agrees to charge a cost for the training event, class, or seminar which is uniform across al categories of attendees;

(c) the prior record of the program sponsor in providing codes training, including:

(i) whether the subject matter taught was appropriate;

(ii) whether the instructor was appropriately qualified and prepared; and

(iii) whether the program sponsor followed appropriate and adequate procedures and requirements in providing the training and submitting requests for funding;

(d) costs of the facility, including:

(i) the location of a facility or venue, or the type of event, seminar, or class;

(ii) the suitability of said facility or venue with regard to the anticipated attendance at or in connection with additional non-funded portions of an event or conference;

(iii) the duration of the proposed event, seminar, or class; and

(iv) whether the proposed cost of the facility is reasonable compared to the cost of alternative available facilities;

(e) the estimated cost for instructor fees, including:

(i) a reimbursement rate not to exceed $150 per instruction hour without further review and approval by the Committee . This reimbursement rate represents the total amount reimbursable for instruction activities. Preparation time, event coordination, course development costs, staff time, and travel time are not separately reimbursable;

(ii) the experience or expertise of the instructor in the proposed training area;

(iii) the quality of training based upon events, seminars or classes that have been previously taught by the instructor;

(iv) the drawing power of the instructor, meaning the ability to increase the attendance at the proposed educational event, seminar, or class;

(v) travel expenses; and

(vi) whether the proposed cost for the instructor or instructors is reasonable compared to the costs of similar events, seminars, or classes;

(f) the estimated cost of advertising materials, brochures, registration, and agenda materials, including:

(i) printing costs that may include creative or design expenses;

(ii) whether printed materials comply with Subsection (4)(b); and

(iii) delivery or mailing costs;

(g) other reasonable and comparable cost alternatives for each proposed expense item;

(h) other information the Committee reasonably believes may assist in evaluating a proposed expenditure; and

(i) a total reimbursement rate of the lesser of $[10]15 per student hour or the cost of all approved actual expenditures.

(5) The Division, after consideration and recommendation of the Committee, based upon the criteria in Subsection (4), may reimburse the following items in addition to the lesser of $[10]15 per student hour or the cost of all approved actual expenditures:

(a) text books, code books, or code update books;

(b) cost of one Division licensee mailing list per provider per two-year renewal period;

(c) cost incurred to upload continuing education hours into the Division's online registry for contractors, plumbers, electricians, or elevator mechanics; and

(d) reasonable cost of advertising materials, brochures, registration and agency materials, including:

(i) printing costs that may include creative or design expenses; and

(ii) delivery or mailing costs.

(6) Joint function.

(a) "Joint function" means a proposed event, class, seminar, or program that provides code or code-related training or factory built housing education, and education or activities in other areas.

(b) Only the prorated portions of a joint function that apply to the purposes of a separate fund are eligible for a funding grant from that fund.

(c) In considering a proposed funding request that involves a joint function, the Committee shall consider whether:

(i) the expenses subject to funding are reasonably prorated for the costs directly related to the purposes of the separate fund; and

(ii) the education being proposed will be reasonable and successful in the training objective in the context of the entire program or event.

(7) Advertising materials, brochures, and agenda or training materials for a Building Code Training funded event, seminar, or class shall include a statement that acknowledges that partial funding of the program has been provided by the Utah Division of Occupational and Professional Licensing from the 1% surcharge funds on all building permits.

(8) Advertising materials, brochures, and agenda or training materials for a Factory Built Housing Fees Account funded educational event, seminar, or class shall include a statement that acknowledges that partial funding of the training program has been provided by the Utah Division of Occupational and Professional Licensing from surcharge fees on factory built housing sales.

(9) If an approved event or joint event is not held, no amount is reimbursable except for the costs described in Subsection (5)(d).

 

R156-15A-232. Administration of the Office of the Property Rights Ombudsman's Land Use Fund.

In accordance with Subsection 15A-1-209(5)(c)(iii) and Section R156-15A-230, the following procedures, standards, and policies are established for the administration of the Ombudsman's Land Use Fund:

(1) Reimbursements to the Office of the Property Rights Ombudsman.

[(1)](a) The Ombudsman shall use the Land Use Fund to pay its expenses, including personnel salaries, course development costs, travel, and other related expenses as agreed upon by the Ombudsman and the Department of Commerce, that are incurred as a result of:

(i) administering the Land Use Fund;

(ii) conducting training activities under Subsection 13-43-203(1)(g); and

(iii) creating, compiling, and updating model land use ordinances.

(b) Expenses paid to the Ombudsman under this Subsection (1) shall first be approved by:

(i) the Advisory Board; and

(ii) the Department's executive director.

(c) The fact that an expenditure type is reimbursable to the Ombudsman under Subsection (1)(a) does not affect whether an item is reimbursable as a grant under Subsection (2).

(2) The Ombudsman shall use the Land Use Fund to provide grants to providers of land use training programs, as follows:

(a) Eligibility Criteria.

(i) To be eligible to receive funds, the provider's program shall primarily provide training on Utah land use law, and in particular the drafting and application of land use laws and regulations.

(ii) Program training may take the form of live or prerecorded seminars or lectures, continuing education programs, video production, or [development and ]distribution of training materials and written information.

(iii) The following factors shall apply to the consideration of whether to approve, approve with conditions, or deny a grant request:

(A) previous experience in providing training;

(B) cost estimates, including cost-per-attendee estimates;

(C) how well the education fits in with the land use education and training objectives of Subsection 13-43-203(1)(i)(i);

(D) whether the training addresses current Utah land use law, issues, and best practices;

(E) how well the text relates to the course objectives;

(F) the target audience - for example, whether the education is targeted for land use officials such as commissioners, council members, etc.;

(G) the expected number of students, hours of instruction, and the ratio of students per dollar spent;

(H) the location or region of the state targeted by the education;

(I) the percentage of training costs paid for by the student;

(J) any other considerations deemed important by the Advisory Board, the Ombudsman, and the Department; and

(K) available funds.

(b) Reimbursement Criteria.

(i) Funds may be expended only as reimbursement for expenditures incurred in providing land use training.

(ii) The reimbursement rate[Reimbursement] for instructor fees shall be limited to $150 per instruction hour [per instructor ]and up to $3,000 total for all instructors per day, including airfare, vehicle mileage,[ travel] and meals. This fee represents the total amount reimbursable for live or prerecorded instruction activities. Preparation time, course development, event coordination, staff time, and travel time are not separately reimbursable. Any excess instructor fees, including honoraria for keynote speakers, shall require further justification, review, and approval. Instructor fees may not be paid to State or local government employees if the instructor is also being paid wages for the same time period.

(iii) Reimbursement for instructor meals, mileage, and lodging may not exceed current State of Utah rates for mileage and daily travel per diem.

(iv) Reimbursement for other expenses such as workbooks, study guides, textbooks used in the education course, meeting rooms or facilities, audio/visual equipment rental costs, if needed, actual printing costs, reasonable cost of advertising materials[and publication costs], and mailing[,] and postage [and handling ]costs, shall be approved as needed.

(v) Gift cards, door prizes, and the cost of food and food services provided to training participants may not be paid or reimbursed from the Ombudsman's Land Use Fund. Any items that do not qualify for state funding, including food and food service provided to training participants, shall be paid for by the participant or sponsor of the program.

(vi) Programs that receive sponsorships or grants from other sources[charge a fee to attendees] are eligible for reimbursement on a net cost basis after subtracting [collected student fees and ]sponsorships or grants from other sources.[Any items that do not qualify for State funding shall be paid for by the participant or sponsor of the program.]

(vii) [The Ombudsman, Land Use Fund manager, and the Department may in their joint discretion grant approval based upon a total per student reimbursement rather than an actual cost reimbursement.]Total reimbursement shall be the lesser of $15 per student hour or the cost of all approved actual expenditures. Reimbursement in excess of this total requires further justification, review, and approval.

(viii) Notwithstanding Subsection (2)(b)(iii), if an instructor is required to travel to a remote, rural Utah location, the instructor may be compensated up to $50 an hour for time traveling to and from the event venue in addition to mileage.

(c) Procedures for the submission, review, and payment of funding grants shall be as follows:

(i) A funding grant applicant shall submit a completed Request for Land Use Training Funds application to the Ombudsman on a form provided for that purpose by the Ombudsman. The application shall require a description of the proposed land use training program, including program objectives, instructors, target audience, and budget, and may encompass other criteria including that set forth in Subsection (2)(a).

(ii) The Ombudsman shall submit the completed Request for Land Use Training Funds application to the Advisory Board for selection or proposal by the Advisory Board. The submission, selection, or proposal may be done in person or by electronic means in accordance with Title 63G.

(iii) A Request for Land Use Training Funds application selected or proposed by the Advisory Board shall then be reviewed by the Ombudsman's director, the Land Use Fund's manager, and the Department's executive director, or their designees. They may jointly approve the application, approve the application with conditions, or deny the application.

(iv) To apply for reimbursement based on an approved Request for Land Use Training Funds application, the approved program shall submit one or more completed Request for Reimbursement forms to the Ombudsman as follows:

(A) The Request for Reimbursement shall be on a form provided by the Ombudsman for that purpose, and shall include receipts, invoices, and supporting documentation of expenditures, including proof of payment if requested by the Ombudsman or the Department of Commerce.

(B) The complete Request for Reimbursement shall be submitted within 60 days following the approved event, class, or seminar, unless an extenuating circumstance occurs. Written notice shall be given to the Ombudsman of such an extenuating circumstance. Failure to submit a complete Request for Reimbursement within 60 days shall result in non-payment of approved funds, unless an extenuating circumstance has been reviewed and accepted by the Ombudsman.

(v) A Request for Reimbursement accepted by the Ombudsman for review shall then be reviewed by the Ombudsman director, the Land Use Fund manager, and the Department executive director or their designees, and may be approved, approved with conditions, or denied.

(vi) Reimbursement funds may be paid only:

(A) for eligible expenditures which have been executed in good faith with the intent to ensure the best reasonable value; and

(B) pursuant to a Request for Reimbursement form that has been signed as approved by the Ombudsman director, the Land Use Fund manager, and the Department executive director, or their designees.

 

KEY: contractors, building codes, building inspections, licensing

Date of Enactment or Last Substantive Amendment: [ April 8, ]2019

Notice of Continuation: June 20, 2016

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 15A-1-204(6); 15A-1-205