ICC Final Action Hearings Result in Challenges for Real Property Ownership Interest
The Final Action Hearings of the International Code Council were held on May 21-26 in Rochester, New York. These hearings represent the end of a cycle that encompasses the complete code development process, from submission to a proposed change to the approval by the ICC general assembly.
Overview of the ICC Code Development Process
The code development process begins with an announcement for inviting code changes. This announcement is posted on the ICC’s website and in other appropriate media. The changes must be submitted to ICC on a form and are then reviewed by the ICC staff to ensure that the proposed changes are submitted on the right form, meet the required format, and are based on the current text of the prevailing code.
There are currently 16 code committees within the ICC that oversee the development of ICC’s 14 model codes. Appointments to these committees are limited and occur once a year, usually in July. The committees meet during the code development hearings at which time the committees both hear debate on the proposed changes and take action on the proposals. The committees may approve a change as submitted, approve it as modified by the committee’s or proposer’s request, or disapprove the proposal. It must be noted here that the committee is meeting in front of the ICC’s general assembly. The general assembly may vote in response to the committee’s action. An approved assembly action, requiring only a simple majority, results in an automatic public comment.
The results of the code development hearings are then published. The results indicate the committee’s action, the reason for the action, and the assembly’s action, if any. Public comments are then invited on the report of the hearing and are due 60 days after the report of the hearing is published. Anyone is invited to submit a comment in response to the results of the hearing including:
- Agreement/disagreement with the committee’s action
- Agreement/disagreement with the assembly action
- Further revisions (“modifications”) to changes are permitted
All of the above are heard at the Final Action Hearings. But before then, the comments are published and serve as the agenda for the Final Action Hearings. If a public comment was submitted, one of the following items would be published.
- The original code change with the committee action
- The public commenters requested action, including any changes to the code change in the format required by ICC.
Anyone can testify at these hearings and there is no registration fee. A final vote on whether or not to change the code rests with the “active” governmental members – those who enforce the code and are charged with the public’s safety. The intent is for the hearing to be open, fair and objection without proprietary interest.
The result is the publishing of a revised code every three years with an intervening supplement between editions.
The Climate Going into the Hearings
The dynamics for each code hearing are different. New faces, changed attitudes about the pending code changes, and revised priorities of what needs to be change all contribute to a great deal of uncertainty about the final outcome of the hearings. Much of the reason for this is that it has not been long since the ICC was formed out of the three legacy code bodies: BOCA, ICBO and Southern, so it’s understandable that as more and more jurisdictions adopt the International Codes that new representatives attend the hearings, the climate within the assembly will change.
Political: Voting Composition and The influence of the Fire Services
An issue that caused concern was the increased interest in the code hearings by members of the fire services. This group generally has oversight for enforcement of the International Fire Code, but as public officials and as “active” members of the ICC, they have a vote at the Final Action Hearings. The members of the fire services in larger jurisdictions are more remote from the oversight of building construction and do not have the background or the experience in building design to consider building code matters in an informed fashion. With the increased interest by the fire services, votes at the Final Action Hearings were made based more on emotion than on well-reasoned technical arguments.
Electronic and Remote Voting
The Final Action Hearings in Rochester marked the first time that the ICC used electronic voting on issues that were too close to call. In the past, close votes were tallied by manually counting the number of raised hands in the assembly. The matter of the advantages and disadvantages of an electronic voting process that ICC will try for the first time in Rochester was discussed by the Real Estate Codes Coalition. The opinion was expressed by all of the coalition that any electronic voting mechanism must allow recorded votes so that votes by code and fire officials could be made available to the public. Coalition members agreed that ICC should ensure that each vote will be recorded and published as part of any electronic voting mechanism both in Rochester and going forward.
The Coalition also discussed the use of remote voting that has been suggested by some members of the ICC leadership. Remote voting was used on a trial basis for several of the votes late during the Final Action Hearings. There was concern by the Coalition that adoption of remote voting would allow building and fire officials to cast their votes via a webcast of the ICC hearings rather than being required to attend the hearings. Coalition members were unanimous in their opposition to the use of remote voting since there were too many opportunities for abuse at the present time. The result of the remote voting trial has not been released to date by ICC.
The Influence of California
The formal adoption of the International Building Code (IBC) by the State of California is having a major influence on the code development process of ICC. With so many jurisdictions and with so much in common, the California representatives can vote as a block and influence virtually every vote. This was the case at the Final Action Hearings.
The Influence of the other Western States
The states of Washington, Utah, Colorado, and Oregon all have robust code programs. Their historical participation, however, rotated around the International Conference of Building Officials’ Uniform Building Code. These states are inclined to support changes that, instead of being of a consensus nature, resurrect provisions of the UBC.
Major Code Changes Issues Dominate the Focus at Final Action Hearings
Sprinklers in Single Family Residences
A major concern, particularly for homebuilders, was the proposal to move the provision that outlines use of sprinklers in single family residences from the International Residential Code’s Appendix (which makes its use optional) and place it into the body of the IRC. This change would have effectively required sprinklers in all new construction of single family residences. Homebuilders were rightly concerned about the result to the cost for single family residences if this change was approved, and their representatives argued strongly against it. The homebuilder representatives, who were non-voting, were able to present persuasive enough arguments to sway a vote against requiring sprinklers in homes.
NIST Recommendations
Third Exit Stairway - Changes that are a part of the 2007 Supplement of the International Building Code will essentially preclude the construction of high-rise office buildings beyond 420 feet in height. The change that is at the crux of the problem will require the inclusion of a third exit stairwell in buildings taller than 420 feet. This change will not advance the safe design and construction of a high-rise but will take up valuable floor area that makes the high-rise structure commercially viable.
This startling and unexpected development occurred on May 24th during the Final Action Hearings of the International Code Council which is the custodial organization for the International Building Code, that code that serves as the model building code for commercial construction in the vast majority of jurisdictions the United States.
It is generally agreed that this change will not serve the public well. In fact, this change will adversely effect those interests that lease buildings in urban areas where space is at a very high premium, encourage urban sprawl, and negate all the advantages that high-rise development contributes to the reduction of carbon emissions. Also, this radical change in high-rise design did not take into consideration the current debate on how high-rises contribute to the reduction of carbon emissions. BOMA contends that this extreme change must be revised by the ICC and reviewed from the standpoint of environmental contributions made by high-rises. It needs to be noted that the proponents for this change have not demonstrated need for the stairwell from both viewpoints that conditions call for the need for a third stairwell and that the third stairwell will actually contribute to the evacuation of a building, particularly in view of the fire service’s comments at the hearing.
The overwhelming support for this change came from individual ICC members who are employed by the fire services. Those members of the fire services who spoke in favor of this change did not address the matter of building evacuation but did comment that the fire services needed this stairwell as a work area during those times they may be called to a building.
Additional Insulation – Another recommendation coming from NIST in its WTC report is the increase in the minimum bond strength for spray-applied fire resistive materials (SFRM), the purpose of which is to increase the required adhesions of SPRMs. The current code requirement is for a SPRM bond strength of 150 pounds/square foot when tested in accordance with ASTM E736. The proposal for increased SPRM would affect buildings over 75 feet in height and a higher strength for SPRM would be required for buildings over 420 feet in height. Specifically, a SPRM minimum bond strength of 430 psf would be required for buildings 75 feet in height or higher and that minimum bond strength would increase to 1,000 psf for buildings higher than 420 feet. Despite arguments by BOMA and others, the assembly sustained the action taken during the Code Development Hearings in Orlando to approve this recommendation as modified. BOMA noted that a likely unintended result of this code change will be the consideration and use of alternatives to SPRMs. A quick on-line search finds numerous gypsum board assemblies that will provide a 2-hour or 3-hour fire resistance rating. These alternative assemblies have no performance requirements similar to that proposed for SPRM. The NIST recommendation, BOMA noted, fails to address this, even though the report notes that gypsum enclosures were used on cores columns in the towers.
Photoluminescent Exit Path Marking – The intent of this code change is to add new requirements in the code for photoluminescent exit path markings. The proposal is to provide for these markings in vertical exit enclosures. The International Fire Code currently has no requirements for the installations of these markings, and the change believes that it will facilitate the rapid egress and assist in full building evacuations. At the Code Development Hearings in Orlando, the means of egress committee disapproved this proposal. However, ICC procedures allow a code changes proposal that was disapproved by the committee to be resurrected by submitting a public comment and altering ever so slightly the original proposal. This was the case for the proposal for photoluminescent exit path markings. ICC procedures also provide that if a proposal is disapproved by the committee during the Code Development Hearings, the resubmitted proposal can be adopted if two-thirds of the those in the assembly vote in favor of the resubmitted proposal. The requirement for photoluminescent exit path markings passed on an overwhelming hand vote that was not needed to be counted electronically.
Exit Enclosures – Another WTC recommendation that came forward from NIST was for exit stair enclosures to be continuous form the highest story served by the stairway enclosure to the level of exit discharge. Further, this exit stairway is not to include any horizontal transfer corridors other than those at the level of exit discharge. At the Code Development Hearings, this proposal was disapproved. The means of egress committee, in its disapproval of this proposal, stated that by eliminating the option for horizontal transfer, it placed severe limitations on building design. The means of egress committee noted that horizontal movement may be necessary for adequate dispersion of exits in buildings with setbacks or to move around equipment floors. Using the public comment period to slightly alter the proposal for continuous exit enclosures was brought back for assembly consideration. A majority of those in the assembly voted for NIST recommendation by a vote of 187 -161 but since the proposal did not garner the required two-thirds of those voting, it failed. A BOMA win. The proponent offered a modified version of the proposal, but it too failed on a vote of 179-179. Another BOMA win.
BOMA Sponsored/Strongly-Supported Changes to the Code
Elevator Lobbies - BOMA International presented a code change during the Code Development Hearings to eliminate the inconsistency between the current area of refuge (elevator) provision and the separate elevator lobby requirements. BOMA withdrew this very beneficial code change (E-32) during the Final Action Hearings in deference to one offered by the United States General Services Administration.
The GSA proposal reinstitutes into the code the exceptions of not requiring area of refuge in buildings or facilities protected throughout by an automatic sprinkler system. This provision, GSA noted, has been in every previous edition of the code, including the “legacy codes”, those codes that were merged into the International Codes (ICBO, BOCA, and Southern). The GSA advanced this change because at the Final Action Hearings in September of 2005, the assembly voted to delete the exceptions.
The early editions and the legacy codes recognized that any floor of a building protected throughout by an approved, operational automatic sprinkler system as an area of refuge. This recognition is based on sound technical research and acknowledges the ability of a properly designed and operational automatic sprinkler system to control a fire at its point of origin and to limit production of toxic products to a level that is not life threatening.
At the Code Development Hearings in Orlando, the means of egress committee saw this reasoning and approved the code revision as it was submitted. In its approval, the committee stated that there was no technical justification provided to support the deletion of this option. The committee noted further that there has been no loss of life in sprinklered high-rise buildings. In addition, the committee added, the deletion would have resulted in conflicts with the elevator protection provisions and smoke barrier construction and that there would be significant ramifications to current building construction. A BOMA win.
Other Changes of Interest
There were approximately 800 changes considered during the Final Action Hearings in Rochester. BOMA International commented on scores of them, in some cases securing a favorable outcome for building owners and real property interests. Below are just a few of the issues that came forward. Addition issues will be contained in a future Up to Code.
FS14 - This proposal requires the placarding of fire walls, fire barriers, or fire partitions and needs to be above any decorative ceiling. BOMA contends that the code official will be just looking for the notice that it is a firewall that the code official will just look to see if there is an opening in the wall. The notice will be above the firewall and no doubt concealed. This requirement will not ensure that the wall was repaired to its specified condition. Concern was expressed that the placarding would be on the wall in residential units. The committee’s disapproval was overturned. BOMA reiterated that the placards would be all over the place.
FS14 Part II - This proposal would make FS14 above retroactive. It was defeated on a recorded electronic vote by 96-91, which was a BOMA win.
FS15 Part I - This proposal would require notices for all smoke barriers and smoke partitions but fails on a recorded electronic vote, 86-54, and a BOMA win
FS15 Part II - Requires notices retroactively on hand vote the committee’s disapproval of this provision at the Code Development Hearings was sustained. A BOMA win.
FS20 - Addresses the concerns about the present reduction for required fire resistance ratings of exterior walls more than 5 feet from a property line. The committee’s action to disapprove was overturned by the assembly but was sustained since it did not attain the needed two-thirds of those voting.
FS136 - This proposal attempts to reduce greatly the use of fire and smoke dampers. Proponents cite the expense of damper maintenance as a reason to reduce their use and also that the reliable rate for sprinklers has reduced the need for dampers. Opponents state that emergency power will be problematic and the need for sprinklers in ducts are still needed. Also, sprinklers will not affect fires underneath desks, tables and other furniture, and sprinklers are not the end all in fire protection.
Proponents in rebuttal noted that Group B occupancies that have sprinklers have an excellent safety record. Smoke detectors have been installed to shut down the equipment to minimize smoke spread. Dampers are not adding any life safety benefits but its added costs for installation and maintenance. The Commonwealth of Virginia determined that this requirement is not the most cost effective way to provide life safety.
BOMA emphasized that the safety with the B occupancies with sprinklers is excellent. The appeal was denial. A loss for BOMA.
FS139 - BOMA supported this proposal that would clarify that ducts and air-transfer openings to the outside have protected openings. A BOMA win.
FS140 - BOMA says that the correction fixes the reason why BOMA opposed. BOMA did not like the term ‘duct’. Barely passes. A BOMA win.
F57 - This proposed change, which BOMA opposed, would require an owner to deem the building unsafe and require evacuation of the building. Other BOMA allies concurred and stated that the proposed is creating a whole new class of hazard. The proposal was substantially too broad with the term “unsafe” is unlimited in the proposal. A BOMA win.
Height and Area - A compromise that was worked out precluded a contentious fight within the assembly on this matter.
Some Opportunities Missed
Due to lack of resources and the lack of coordination among the various real estate interests, a few opportunities were missed. The lost opportunity manifested itself in confusion as to who in the real estate community should represent it on a particular issue, how the opposition or support for the code change should be addressed, or whether it was appropriate to comment on an occupancy outside those that those in attendance were representing.
Fire Separations in Hotels – The code change that passed requires that any change in use within a structure have a fire wall separation. In hotels with atriums, eating establishments in those atriums will have to be removed or be completely enclosed.
Mixed-Use Separations – This code change proposal will require enhanced fire wall separations between occupancies. The proposal passes.
The Bottom Line
The hearings were a mixed bag of successes and failures for BOMA and real estate interests. A couple of the recommendations from the NIST World Trade Center were resurrected and passed; a few others were defeated…..for now. Frustration over the inability/unwillingness for members of the fire services, particularly those attending a Final Action Hearing for the first time, of their reaction to technical arguments was great.
With the inclusion of the provision for addition of a third stairway in buildings taller than 420 feet in height, it is highly recommended that local BOMA associations oppose the adoption of the 2007 IBC Supplement until such time as this requirement is deleted from the code. The next chance to do this will be the Code Development Hearings on February 18 – March 2, 2008 at which time BOMA International will support a code change to eliminate the requirement for the third stairway.
Another suggestion is for local BOMA associations to meet with local fire groups and local ICC chapters in order to begin/continue a dialogue about the code process and how it affects building owners.
The BOMA International considered its next steps during its 2007 Convention which was held in New York City on July 21 – 24th. BOMA will submit proposed code changes to undo some of those onerous ones discussed here.
For additional information, please contact Ron Burton (202-326-6350) or Dave Johnston (202-326-6357) at BOMA International.