The Not-So-Final 2012 IECC
In the January/February issue, this column summarized what were considered at the time to be the finalized requirements for the 2012 International Energy Conservation Code, based on the 2010 ICC Group B- final action hearings which dealt with the IECC and the International Residential Code, among others.
It turns out the decisions made during those hearings weren’t so final. Three appeals were filed against the 2012 IECC results, with the appellants challenging certain voters’ eligibility at these hearings. They say that in some instances people who were not eligible to vote did so on certain code change proposals, and that actions taken on those proposals should be null and void.
The persons at the hearings were said not to be eligible to vote for two reasons. First, some were not employed full time as active code officials at the time they voted, it was charged. Secondly, it was said the costs of traveling to Charlotte, N.C., where the hearings were held, for some voters was paid, to some extent, by industry groups who had special interests in the outcome of the hearings, and not by a governmental entity.
ICC limits voting at its final action hearing to governmental member representatives and honorary members. According to the ICC bylaws, a governmental member is a governmental unit, department or agency that is “engaged in the administration, formulation or enforcement of laws, ordinances, rules or regulations relating to the public health, safety and welfare.” The governmental member appoints its voting representatives for the hearing. The number of voting representatives the governmental member may appoint is based upon the size of the jurisdiction served.
ICC bylaws further specify that voting representatives shall be employees or officials of the governmental member or “departments of the governmental member, provided that each of the designated voting representatives shall be an employee or a public official actively engaged either full or part time, in the administration, formulation or enforcement of laws, ordinances, rules or regulations relating to the public health, safety and welfare.”
Honorary members are selected by ICC, usually based upon their years of service to a governmental member, the ICC or perhaps an ICC chapter or legacy code agency.
By limiting voting at the final action hearings to governmental member voting representatives and honorary members, ICC seeks to place the final determination of code provisions primarily “in the hands of public safety officials who hold a public trust, have no vested interest, and can legitimately represent the public interest.” According to ICC, “the Final Action Hearings are open, fair, objective, and allow no proprietary interests to influence their outcomes.” The organization refers to this process as a “governmental consensus process.”
Now one can respond to this policy with any number of questions: Is a person’s personal integrity dictated by the circumstances of his or her employment? Is it reasonable to assume that all government employees will act in a manner that represents the public’s best interest, simply by virtue of their employment status? Does world history, such as the history of communism, support such a theory? If the assumption is made that all governmental employees possess high integrity, does that indicate that those who are not governmental employees are to be assumed to not possess high integrity?
My own view is that a person’s personal integrity is not dictated by their employment. We are all human and members of both groups–governmental employees and persons employed in the private sectors–can possess a high degree of personal integrity, or be awful scoundrels, or land somewhere in between those two extremes. If we look at the circumstances at the recent hearings under question, was the intent of ICC to “allow no proprietary interest” to influence the outcome of the process met if some of the expenses of some of the people voting were paid by representatives of industry? Personally, I don't think that intent was met.
Is this something that can be controlled by ICC? And if so, what should ICC have done before the 2010 final action hearings to prevent it and what, if anything, should ICC do going forward? I think these questions are difficult ones to answer. How can ICC be expected to control the integrity of the individuals who are given voting privileges? And if not, how is the integrity of the “governmental consensus process” to be maintained?
At this point, you may wonder why any of this is relevant to window and door manufacturers. One reason we've watched this process closely is that the removal of the distinction between metal and nonmetal framed fenestration in commercial buildings–Public Comment 5 to EC165–is among the decisions from the recent hearings appealed. The appellants are looking for a reversal–to maintain the distinction between metal framed and nonmetal framed fenestration in the 2012 IEC.
As it turns out, the ICC appeals board recommended to the ICC board of directors that the results of the 2010 ICC Group B- final action hearings should be upheld. If the ICC board of directors accepts that recommendation, the results of the hearings–including the removal of separate criteria for metal and nonmetal framing for fenestration in commercial buildings–will be final.
If ICC chooses to overturn the results, it would risk not having achieved the performance target that the U.S. Department of Energy had set for the 2012 IECC. This is a risk that the ICC would be very reluctant to take. So there appears to be little reason to think the ICC board will not accept the recommendation of its appeals board.
The greater risk now is the integrity of the ICC process. I don’t really know how the ICC board of directors is going to address that issue. I wish them well.