RULES AND REGULATIONS
Title 34--LABOR AND INDUSTRY
DEPARTMENT OF LABOR AND INDUSTRY
[34 PA. CODE CHS. 401, 403 AND 405]
Uniform Construction Code; Administrative and Enforcement; Elevators and Other Lifting Devices
[34 Pa.B. 319] The Department of Labor and Industry (Department), Bureau of Occupational and Industrial Safety, adopts this final-form rulemaking to provide detailed administrative and enforcement provisions and standards for elevators and other lifting devices of the Uniform Construction Code (UCC) under the Pennsylvania Construction Code Act (act) (35 P. S. §§ 7210.701--7210.1103) to read as set forth in Annex A.
In response to comments received and meetings with affected parties, some changes have been made to the proposed rulemaking published at 32 Pa.B. 4127 (August 24, 2002). An earlier draft of this final-form rulemaking was submitted on May 8, 2003. The Department withdrew the final-form rulemaking on June 9, 2003.
This final-form rulemaking includes the Department's adoption of the International Building Code (IBC) and other codes issued by the International Code Council (ICC), which were published in February 2003.
Statutory Authority
This rulemaking is adopted under sections 301 and 304 of the act (35 P. S. §§ 7210.301 and 7210.304), which require the Department to promulgate regulations adopting the 1999 ''BOCA National Building Code'' (BOCA Code) and successor codes and allow the Department to make changes to Chapter 1 of the BOCA Code. The Department must also adopt the ''International Fuel Gas Code'' and prescriptive methods for energy related standards under section 301 of the act.
Section 301 of the act requires the final-form rulemaking to include a provision providing the Department exclusive power to grant modifications and decide issues of technical infeasibility under the accessibility provisions of the UCC. Section 105(c) of the act (35 P. S. § 7210.105(c)) continues the Department's administrative and inspection authority over elevators and other lifting devices. The Department is adopting plan review and inspection fees under section 301(d)(2) of the act.
Background
In accordance with the act, the Department must promulgate the UCC. The UCC will provide uniform standards for builders and design professionals, and greater protection for building owners, occupants and the general public. The Department, municipalities and third-party agencies in this Commonwealth will utilize the UCC to insure that this Commonwealth has a UCC that will promote safety, health, sanitary construction, state-of-the-art techniques and cost-effectiveness in residential and commercial construction.
This final-form rulemaking establishes administrative provisions, enforcement provisions and elevator and other lifting devices standards for the UCC required by the act. This final-form rulemaking adopts the ICC model codes as part of the UCC.
For elevators and lifting devices, this final-form rulemaking adopts: ''ASME A17.1-2000'' with ''A17.1a-2002'' addenda (Part 1 (General); Part 2 (Electric elevators); Part 3 (Hydraulic elevators); Part 4 (Elevators with other types of driving machines); Part 5 (Special application elevators); Part 6 (Escalators and moving walks); Part 7 (Dumbwaiters and material lifts); Part 8 (General requirements); Part 9 (Standard codes and specifications); ''ASME B20.1'' for vertical and inclined reciprocating conveyors without automatic transfer devices; ''ASME A90.1-1997'' including ''A90.1a-1999'' and ''A90.1b-2001'' addenda for belt man-lifts; ''ANSI B77.1-1999'' for passenger ropeways, aerial tramways, aerial lifts, surface lifts, tows and conveyors; and ''ASME A18.1-1999'' including ''A.18.1a-2001'' addenda for vertical and inclined wheelchair lifts and stairway lifts.
The final-form regulations containing the UCC's training and certification requirements under section 701 of the act (35 P. S. § 7210.701) were published at 32 Pa.B. 1849 (April 13, 2002).
The UCC will take effect 90 days after publication of this final-form rulemaking after each of the Commonwealth's 2,566 municipalities formally decides whether it will administer the UCC and provides notification to the Department. See section 501 of the act (35 P. S. § 7210.501).
At 32 Pa.B. 4127, the Department published notice of proposed rulemaking and invited all interested parties to provide written comments. The Department held three public hearings to take testimony on the proposed rulemakings. These public hearings were held: September 9, 2002, in Monroeville; September 11, 2002, in Plymouth Meeting; and September 13, 2002, in Grantville. The proposed rulemaking was also posted on the Department's website. The Department received comments from 138 persons on the proposed rulemaking. Comments were submitted from builders, contractors, architects, municipalities, third-party agencies, hospitals, child-care providers, legal services, engineers, accessibility advocates, elevator companies, plumbers, trade unions, building code associations, energy conservation groups, manufacturers, other associations and individuals.
The Independent Regulatory Review Commission (IRRC) submitted its comments through a letter dated October 25, 2002. The House Labor Relations Committee also provided comments in a letter dated October 15, 2002, which included comments from Senator James J. Rhoades, the Pennsylvania Manufactured Housing Association, the Hospital and Healthsystem Association of Pennsylvania (HAP), the Modular Buildings Association, the Pennsylvania State Association of Township Supervisors (PSATS), the Pennsylvania Petroleum Marketers and Convenience Store Association and Eric Holman, P. M., Associates.
The Department also received comments from the following: City of Allentown, American Forest and Paper Association, American Institute of Architects (AIA), American Iron and Steel Institute, Amerital of Pittsburgh, Senator Gibson E. Armstrong, Associated Builders and Contractors, Inc., Associated Day Care Service Inc., Jon Benson, Bear Creek Township, Berks Homebased Childcare Providers Association, Better Kid Care Program, Holly Caldwell, Caring for Our Children, Centre Region Council of Governments, Commercial Technical Services, Inc, Commonwealth Code Inspection Service, Inc., Community Legal Services, Cranberry Township, Delaware Valley Association of Energy Engineers, Danville Child Care Development Center, Edward A. Donoghue, Alma Doumbouya, Eastern Paralyzed Veterans Association, Eaton Corporation, Yvonne Ellison, Facilities Design & Construction Company, Family Child Care Associates of Lehigh Valley, Ed Ferree, Flavey Energy Engineering, PC, Fire Safety Consultants, Frankstown Township, George W. Gibson and Associates, Inc., Harold W. Godwin, Carol Godwin, Patty Graff, Steve Greco, Grindel Elevator Company, Hampton Concrete, Heritage Valley Health System, Hospital Association of Pennsylvania, Haubert Homes, Inc., International Association of Plumbing and Mechanical Officials, International Brotherhood of Electrical Workers, Martha W. Issler, Marvin Kanze, Bob Kaver, John J. Kline and Associates, Latrobe Hospital, Loss Control Associates Incorporated, Ann Luscan, Maternity Care Coalition, McWapec County Boroughs Association, Middle Department Inspection Agency, Inc., Modular Building Systems Association, Gerald F. Mizgorski, National Electrical Contractors Association, National Electrical Contractors Association--Western Pennsylvania Chapter, National Fire Protection Association (NFPA), Neighborhood Child Care Resource Program, Tom Palaski, Pennsylvania Association of Code Officials, Pennsylvania Association of Plumbing, Heating and Cooling Contractors, Inc., Pennsylvania Builders Association (PBA), Pennsylvania Building Officials and Code Administrators, Pennsylvania Child Care Association, Pennsylvania Department of Conservation and Natural Resources, Pennsylvania Home-based Child Care Providers Association, Pennsylvania Housing Finance Agency, Pennsylvania Housing Research Center (PHRC), Pennsylvania Human Relations Commission, Pennsylvania Manufactured Housing Association, Pennsylvania Petroleum Marketers and Convenience Store Association, Pennsylvania Propane Gas Association (PPGA), Pennsylvania Ski Areas Association, Pennsylvania Society of Professional Engineers, PSATS, Peters Township Sanitary Authority, City of Philadelphia--Department of Licenses & Inspections, City of Pittsburgh--Bureau of Building, Plymouth Township, PM Associates, The Preschool Project, Quest, Brad Randall, Radnor Township, Joseph P. Rapine, Rene Loubet Electric, Responsible Energy Codes Alliance, Richland Township, George M. Rohana, Rossman Hensley, Inc, Marce Schulz, Robert L. Seymour & Associates, Inc., Settlement Music School, Wes Smith, Lawrence G. Speilvogel, Rhea Starr, Wilhemena Stewart, Sparta Township Supervisors, Ken Strup, Noel Susskind, John Sykes, Trane, Tredyffrin Township, Universal Accessibility Advisory Board (UAAB), Upper Paxton Township Board of Supervisors, Upper Providence Township, Jeff Walker, Jeffrey R. Walzer, Carl M. Watson, Tom Wenner, West Penn Allegheny Health System, Augie Whymeyer, Whitpain Township, WIDCO, Harriet J. Williams and City of Williamsport.
The Department originally submitted this rulemaking in final-form on May 8, 2003. The House Labor Relations Committee held two meetings on the Department's final-form rulemaking. First, the House Labor Relations and Local Government Committees met with the Department on May 22, 2003. The House Labor Relations Committee received numerous comments concerning this rulemaking and, along with the Local Government Committee, met with some of the commentators on June 5, 2003. On June 9, 2003, the Department withdrew its final-form rulemaking. The Labor Relations Committee also provided additional comments on June 30, 2003. The Department also met with Committee members. Revisions reflecting comments from the House Labor Relations and Local Government Committees are contained in this final-form rulemaking.
Regulatory Review and Promulgation
Since the passage of the act, extensive outreach and communication efforts were undertaken to gain input from the various affected parties including representatives from most of the associations affected by this final-form rulemaking and many government agencies. Department representatives met almost weekly with interested persons to answer questions and solicit comment.
The Department utilized its website, www.dli. state.pa.us, to provide updates on the regulatory process, to provide information about the act and to solicit comments and questions. The Department also utilized its website to notify stakeholders of regulation updates and drafts. The stakeholder list comprised approximately 375 interested parties. Prior to issuance of proposed rulemaking, the Department held a meeting on May 31, 2001, in Grantville, PA with stakeholders and received comments on an initial stakeholder draft of this rulemaking. As described earlier, the Department held three public hearings on the proposed rulemaking and placed a draft of the rulemaking on its website.
This final-form rulemaking was discussed with the Department's Industrial Board and Accessibility Advisory Board. On May 30 and September 19, 2002, Department representatives briefed the House Labor Relations Committee on the UCC and the Department's progress on implementing regulations. The Department also briefed the House Local Government Committee. The Department also met with the House Committees and its members after submission of the first final-form rulemaking.
Purpose
As stated in section 102(b) of the act (35 P. S. § 7210.102(b)), the purpose of the act is to insure safe, uniform, cost-efficient, modern construction standards throughout this Commonwealth by adopting a Statewide building code governing the construction, alteration, repair and new occupancy of all structures in this Commonwealth.
This final-form rulemaking sets forth the administrative and enforcement provisions of the Statewide building code. It establishes the UCC's scope, lists the prescriptive methods adopted by the Department to comply with the ''International Energy Conservation Code'' and provides definitions and standards for child-care facilities. The final-form rulemaking prescribes the permit and inspection processes for commercial and residential construction. It establishes rulemaking procedures for municipalities to opt in or out of UCC enforcement, and enforcement procedures. This final-form rulemaking provides for the retention and sharing of records between the Commonwealth and municipalities choosing to enforce the UCC. It also enumerates safety standards for passenger elevators, conveying systems, lumber elevators, stage lifts, orchestra and organ console elevators and other lifting devices.
Affected Persons
This final-form rulemaking will affect construction contractors, building owners, persons building or renovating homes, design professionals, the Department, municipalities, political subdivisions and third-party agencies. This final-form rulemaking will provide a Statewide uniform building code for construction for commercial and residential buildings. Construction contractors, design professionals and building owners will be required to design and construct buildings to meet the requirements of the UCC. The Department, municipalities and political subdivisions opting to enforce the UCC and third-party agencies under contract to municipalities or building owners will have to approve and inspect commercial and residential buildings for UCC compliance.
This final-form rulemaking also establishes safety requirements for passenger elevators, conveying systems, lumber elevators, stage lifts, orchestra and organ console elevators and other lifting devices. The Department, building owners, elevator and lifting device operators and third-party elevator inspection companies will also be affected by this final-form rulemaking. Building owners and elevator and lifting device operators will be required to construct and maintain elevators and lifting devices in accordance with the UCC. The Department and third-party elevator inspection companies will have to inspect and test this equipment for compliance with UCC requirements.
Fiscal Impact
The Commonwealth will incur ongoing costs related to the administration and enforcement of the UCC required under the act. The Department will augment its plan review staff and may have to increase its inspection staff to review and approve plans and perform required inspections under the UCC. The Department will have to periodically review all municipal UCC enforcement programs to assure compliance with the accessibility provisions of the UCC.
Municipalities will only incur costs if they choose to administer and enforce the UCC. Costs will depend on how a municipality administers its program and the scope of the municipality's current building code program. However, these costs may be recovered from municipal plan review and inspection fees.
Owners of new commercial and residential buildings may save costs in municipalities currently administering building code programs utilizing National standards. In these jurisdictions, there will no longer be a duplication of plan review and inspection by the municipality and the Commonwealth. Construction contractors and design professionals may also save costs because of standardization of building codes throughout this Commonwealth.
Response to Comments
The following addresses the common areas of concern found in the comments received from the public, the House Labor Relations Committee and IRRC.
The AIA and the PSATS questioned why the Department chose to rewrite Chapter 1 of the IBC pertaining to administration and enforcement rather than revising Chapter 1 only as necessary. Revising Chapter 1 in its entirety was necessary for the Department's implementation and administration of the act. See section 301(a) of the act.
The Department is required to promulgate its own specific requirements for administration and enforcement in addition to the provisions of Chapter 1 of the IBC and the ''International Residential Code'' (IRC). These specific requirements must exceed some provisions of Chapter 1 of the IBC or the IRC to properly administer the act. These ICC model codes do not reflect the act's provisions concerning municipalities that ''opt out'' of enforcement--section 501(e) of the act; the Commonwealth's health care facilities--section 104(d)(3) and (4) of the act (35 P. S. § 7210.104(d)(3) and (4)) and sections 105(d) and 301(d)(2) of the act; prescriptive energy standards--section 301(c) of the act; accessibility--section 105(a) of the act and section 106 of the act (35 P. S. § 7210.106); adoption--section 501 of the act; third-party agencies-- section 103 of the act (35 P. S. § 7210.103) (definition of ''third-party agency''); historical buildings and sites--section 902 of the act (35 P. S. § 7210.902); State-owned buildings--section 105(b) of the act; swimming pools--section 104(f) of the act; highway occupancy permits--section 502(b) of the act (35 P. S. § 7210.502(b)); and religious exemptions--section 901(b) of the act (35 P. S. § 7210.901(b)), among other provisions. Modification of Chapter 1 was also necessary to incorporate provisions of other relevant laws such as the saved provisions of the act of April 27, 1927 (P. L. 465, No. 299) (35 P. S. §§ 1221--1235), know as the Fire and Panic Act, and to reflect stakeholder comments that the Department adopted. Revising Chapter 1 to provide one source for administrative standards will provide for more effective enforcement.
The AIA also questioned the Department's incorporation of technical provisions from ICC codes in this final-form rulemaking. The Department needed to incorporate ''technical provisions'' to reflect the act requirements and to provide a UCC for use in this Commonwealth.
The AIA expressed concerns about conflicts between the rulemaking and IBC codes. Section 403.27(e) (relating to applicability and use of standards) specifically addresses conflicts by stating that if there is a conflict between the final-form rulemaking and the provisions of the codes relating to administration incorporated under § 403.21(a) (relating to Uniform Construction Code), the final-form rulemaking applies.
Section 401.1 (relating to definitions) was changed in response to a number of comments. The term ''ANSI'' was added to the definition section since the ''American National Standards Institute'' was mentioned frequently in Chapter 405 (relating to elevators and other lifting devices).
IRRC indicated that it would be helpful for the Department to reference the list of certified officials from the training and certification regulation in the definition of ''building code official.'' This definition now contains a reference to § 401.7 (relating to certification category specifications). The definition of ''permit'' was modified to clarify that a building code official may issue certificates of occupancy and building permits.
The AIA questioned the use of the term ''code administrator'' in the definition of ''certificate of occupancy.'' The term ''code administrator'' in the definition was changed to ''building code official.''
IRRC commented that the definition of ''commercial construction'' in the proposed rulemaking included a building, structure or facility while the IBC provides definitions for ''building'' and ''structure'' and not for ''facility.'' IRRC suggested that the Department delete the term ''facility'' from the definitions and from parts of the rulemaking. However, this term is essential for accessibility compliance and is defined in Chapter 11 of the IBC. This term is also important for other UCC-regulated facilities such as parks and other outdoor spaces that are not buildings or structures. The final-form rulemaking utilizes the Chapter 11 definition of ''facility.''
IRRC questioned use of the phrase ''accessory structure'' in the definition of ''residential building.'' The IRC contains a definition of this phrase.
IRRC indicated that ''ComcheckTM'' and ''MECcheckTM'' were only used in one section of the rulemaking and suggested the definitions may not be necessary. Both of these definitions were deleted.
The Department received over 20 comments concerning § 403.23 (relating to child day care facilities). The Department redrafted that section to eliminate confusion and to allow for greater compliance. The terms ''family child day care home'' and ''group child day care home'' are no longer used and have been deleted from the definitions.
''ICC Evaluation Service, Inc.'' is the successor organization to ''National Evaluation Service, Inc.'' The definitions are modified to reflect this change.
Many commentators encouraged the Department to use the now-current 2003 versions of the ICC codes that were published in February 2003. The Department adopted the 2003 versions of the ICC codes as reflected in § 403.21. See section 304(a) of the act. The Department modified the definitions of ''International Building Code,'' ''ICC Electrical Code,'' ''International Energy Conservation Code,'' ''International Fire Code,'' ''International Fuel Gas Code,'' ''International Mechanical Code,'' ''International Plumbing Code'' and ''International Residential Code'' to reflect this change.
The Department added three more 2003 ICC codes and a standards writing organization as definitions: ''ISO,'' ''International Existing Building Code,'' ''International Performance Code'' and the ''International Urban-Wildland Interface Code.'' The Department also deleted the definition of ''Code Requirements for Housing Accessibility'' because its provisions were incorporated in the other 2003 codes.
The Department revised the definition of ''Uniform Construction Code'' that was promulgated as part of training and certification. This definition now reflects the current 2003 versions of the model codes, refers to the ICC instead of the BOCA Code, updates the ICC's telephone number and references the entire regulatory chapter.
The Department added the definition of ''International Accreditation Service'' because it is now referenced in § 403.44 (relating to alternative construction materials and methods). The definition of ''NSPI'' was added because it is referenced in new § 403.26 (relating to swimming pools).
The PHRC changed the title of its energy compliance publication. The definition ''PHRC Alternative to Chapter 11'' is deleted and replaced with ''Pennsylvania's Alternative Residential Energy Provisions.''
IRRC commented that the term ''legally occupied'' used in § 403.1(a) (relating to scope) should be defined. It also suggested definitions for the terms ''occupancy'' and ''occupied.'' The Department has addressed those comments by adding the definition of ''legally occupied.''
IRRC requested clarification of the terms ''postmark'' and ''personal delivery'' used in §§ 403.122 and 403.142 (relating to appeals, variances and extensions of time; and Accessibility Advisory Board). Accordingly, the Department added definitions for ''personal delivery'' and ''postmark.''
The Department made significant changes to § 403.62 (relating to permit requirements and exemptions) to allow exemptions from permit requirements for numerous home repairs. Accordingly, the Department also added a definition for ''repairs.''
IRRC questioned the use of the phrase ''the dwelling's accessory structures'' in the definition of ''residential building.'' The Department did not further define this phrase because it is a term of art among construction code officials and is defined in the IRC. The Department also deleted the last sentence in this definition because it was redundant.
Members of the Accessibility Advisory Board commented that the definition of ''variance'' did not notify builders and building owners that only the Department may grant variances from the UCC's accessibility provisions. The Department modified the definition to clarify that the Department grants accessibility variances.
IRRC also requested that the Department explain why it defined terms that are already explained in IBC codes incorporated in the UCC. The Department defined some of these terms to make the final-form rulemaking easier to understand and to be used as one source.
IRRC, the House Labor Relations Committee, the AIA and numerous other commentators commented that fees for certain types of facilities might be excessive. Some commented that the fees were too difficult to determine. The AIA questioned why fees needed to be part of the final-form rulemaking. IRRC also asked whether the variance request fee was based on a request or an appearance before the appropriate body.
The act provides for the establishment of fees by regulation. See section 301(d)(2) of the act. This final-form rulemaking is the most reasonable and practical means to set the fees for the Department's administration and enforcement of the UCC. Setting fees in this final-form rulemaking allows for public scrutiny and Department's justification for its fees.
The Department reviewed the entire fee schedule and related comments closely. In § 401.2 (relating to Department fees) of the final-form rulemaking, fees are reduced, the fee structure is simplified and the elevator fee provisions are reorganized. New buildings and additions are assessed a basic fee of $100 plus 20¢ for each square foot of floor area. New structures and facilities other than buildings are assessed a fee of $300. Alterations, renovations or modifications of existing buildings or structures are assessed a basic fee of $100 plus $20 for each $1,000 of estimated cost of alterations, renovations or modifications. Accelerated approvals are assessed a fee of $300. Demolition of building or structure is assessed a fee of $100. The variance request fee language was modified to state that the fee is based on each application. A $100 fee was also added to § 401.2(b)(6) to allow for the issuance of an Annual Permit, under §§ 403.42(f) and 403.42a(m) (relating to permit requirements and exemptions; and permit application) for alterations to an already approved electrical, gas, mechanical or plumbing installation, as requested by the AIA.
Section 401.2(b)(4) lists a $200 fee for accessibility plan review and inspection. IRRC questioned this fee's purpose. The Department will charge this fee when it has to perform accessibility plan review and inspection when a municipality ''opted'' to enforce the UCC and has not yet obtained a certified accessibility inspector/plans examiner. Section 701(e)(2) of the act requires the Department to retain jurisdiction over accessibility plan review and inspection until a municipal code administrator is certified in this category.
IRRC commented that the terms ''accessory character'' and ''miscellaneous structure not classified in the UCC'' in § 403.1(b)(3) were unclear and open to interpretation. The Department modified this section to delete those references. IRRC also asked the reason that sheds were the only buildings given a size limitation in the rulemaking. The final-form rulemaking was modified to clarify that all of the listed structures must meet the building area limitation found in section 103 of the act (defining ''utility and miscellaneous use structures'').
The PPGA commented that the UCC would not be applicable to liquefied petroleum gas tanks and piping since the newly enacted Propane and Liquefied Petroleum Gas Act (35 P. S. §§ 1329.1--1329.19) preempts the act's coverage of this area. The Department added § 403.1(b)(6) to exclude those installations. The PSATS also commented that the addition of § 403.1(b)(6) would deny municipalities the authority to enforce piping and installation requirements under the UCC. The Department will issue separate regulations concerning the regulation of liquefied petroleum gas and piping in accordance with the Propane Liquefied Petroleum Gas Act.
Section 403.1(c)(2) allows construction commenced before the UCC's effective date to continue without a permit if a permit was not required at that time. IRRC suggested that the Department consider imposing a time limit for completion of this construction. The Department has determined that it will not impose this time limit because the act does not set forth a deadline, policing this deadline would be unreasonably difficult and numerous individuals informally expressed concern about this type of deadline.
Peters Township Sanitary Authority commented that the Department of Environmental Protection, under 25 Pa. Code Chapter 73 (relating to standards for onlot sewage treatment facilities), regulates onlot individual sewage disposal systems. The Department added § 403.1(b)(7) to exclude these installations.
Based on comments to § 403.2 (relating to other statutes or ordinances), the Department further clarified the UCC's recision and preemption of current construction standards found in statutes, local ordinances and regulations. In the final-form rulemaking, the Department incorporated language from section 303(b)(1) of the act (35 P. S. § 7210.303(b)(1)). Preemption does not apply to ordinances in effect on July 1, 1999, or reenactments of simultaneously repealed ordinances, which were originally adopted before that date which meet or exceed the UCC. See section 303(b)(1) of the act.
Numerous commentators questioned the building code official's ability to delegate duties under the act and the UCC to other certified or registered building code professionals. The Department added § 403.3 (relating to building code official delegation) to clarify that a municipality or third-party agency must employ or contract with a building code official to enforce the act. This section also clarifies that a building code official may delegate duties to construction code officials or current code administrators.
The NFPA, IRRC and other commentators questioned the Department's adoption of the ''ICC Electrical Code'' as part of the UCC in § 403.21(a)(2). These commentators encouraged the Department to adopt the ''National Electrical Code'' (NEC) instead. The act requires the Department to adopt all of the ICC ''family'' of codes referenced in Chapter 35 of the IBC, including the ''ICC Electrical Code.'' The Department does not have the authority to adopt other codes, such as the NEC, except if these codes are incorporated in an ICC building code or enumerated in the act. See sections 301(a) and 304 of the act. The IRC and the ''ICC Electrical Code,'' incorporated in Pennsylvania's UCC, utilize the NEC 2002 standards. The ''ICC Electrical Code'' contains only administrative provisions and adopts, by reference, the NEC as its electrical construction standard. Chapters 33--42 of the IRC also utilize the NEC's electrical construction standards.
The final-form rulemaking adopts two new 2003 ICC code publications in § 403.21(a)(10) and (11): the ''International Existing Building Code'' and ''International Urban-Wildland Interface Code.'' The PSATS questioned the Department's decision to include these codes and Appendix H (relating to signs) in the final-form rulemaking. The Department must adopt the ICC ''family'' of codes referenced in Chapter 35 of the 2003 IBC, which include these codes. The IBC contains no requirements for signs other than those found in Appendix H. Signage requirements are necessary for safety throughout this Commonwealth.
The Department deleted ''Code Requirements for Housing Accessibility'' from § 403.21 because the 2003 ICC codes do not include this publication.
In response to IRRC's comments, § 403.21(d) of the final-form rulemaking enumerates that the IRC will apply to stairway construction in use group R-3 after December 31, 2003.
The House Labor Relations Committee, IRRC and the UAAB urged the Department to adopt Appendix E of the IBC. The UAAB informed the Department that certain accessibility standards would be repealed by the UCC if Appendix E is not adopted. The Department adopted Appendix E in § 403.21(a)(12).
The Department also received comments on the lack of standards for signs and swimming pools. The Department modified the final-form rulemaking to adopt Appendix H of the IBC for signs in § 403.21(a)(13). The Department also incorporated Appendix G of the IRC for residential swimming pools in § 403.21(a)(14) to comply with section 104(f) of the act. The final-form rulemaking also contains additional standards for nonresidential pools, hot tubs and spas in § 403.26.
The Department revised § 403.21(e) to require use of the most current version of ''COMcheckTM.'' This section also contains the newest version of ''MECcheckTM,'' which is now renamed as ''REScheckTM.''
IRRC requested that the Department explain the impact of the ''Pennsylvania's Alternative Residential Energy Provisions'' (formerly ''PHRC Alternative to Chapter 11'') on the availability of choices of home heating for new construction. The Pennsylvania Petroleum Marketers and Convenience Store Association also contended that this alternative particularly favored one heating fuel source at the expense of others. Both the International Energy Conservation Code (IECC) and REScheckTM allow a trade-off for the use of extra high-efficiency HVAC equipment, if a justification is provided using a valid energy analysis. The use of the trade-off is not mandated, nor is its use based on intent to favor one heating fuel source over another. If oil furnaces can be manufactured to attain a 90 AFUE, a trade-off would be allowed for their use.
IRRC questioned and a number of commentators objected to the rulemaking allowing the use of the PHRC prescriptive energy conservation alternative (formerly the ''PHRC Alternative to Chapter 11'') in § 403.21(e).
Under section 301(c) of the act, the Department approved an alternative approach to the prescriptive energy conservation measures in the IRC 2003 and the ''International Energy Code 2003'' for residential construction. The final-form rulemaking will allow a permit applicant to utilize, as an alternative, ''Pennsylvania's Alternative Residential Energy Provisions'' issued February 2003 by the PHRC.
The Department closely reviewed the documents and testimony provided on this issue and obtained additional information. The Department continues to believe that this alternative approach would provide greater overall energy savings by fostering greater compliance with a simplified approach. Local governments, code officials and the PBA also support this approach.
The United States Department of Energy's Pacific Northwest National Laboratory (Pacific Northwest) reviewed the PHRC's alternative approach and concluded that the alternative contains energy efficiency requirements which are slightly more stringent for some residential designs and slightly less stringent for other designs. However, Pacific Northwest also acknowledged that the alternative was considerably simpler to use and would most likely foster greater compliance with the UCC's energy conservation requirements. In another study, Pacific Northwest reviewed homes that would use more energy because of increased window glazing. Pacific Northwest concluded that ''increases in energy use expected from homes having more glazed area are, in fact, non-existent or negligible compared to the benefits of increased compliance.'' (Emphasis added.) (''Eliminating Window-Area Restrictions in the IECC--October 2001.'')
The Department also reviewed other states and their experiences with energy compliance. The states that have shown less flexibility with alternative approaches have experienced difficulties. In Massachusetts, a study indicated that only 46.4% of new homes complied with the thermal requirements of that state's residential code. Prescriptive packages were almost never used--only 2% of the homes surveyed used these standards. Additional prescriptive approaches were recommended for use in Massachusetts. (''Impact Analysis of the Massachusetts Residential Energy Code Revisions''--May 14, 2001.)
IRRC requested that the Department explain its jurisdiction to require compliance with Department of Health (Health) regulations and the Health Care Facilities Act (35 P. S. §§ 448.101--448.904b). IRRC also stated that if the Department requires compliance with Health's regulations and the Health Care Facilities Act, the final-form rulemaking must contain procedures for coordinating this compliance with Health. After consulting with Health, the Department revised § 403.22 (relating to health care facilities) to clarify its jurisdiction, and the plan approval and inspection process. The Department modified § 403.22(a) to include references to sections 104(d)(3) and 105(d)(1) of the act which require compliance with Health's regulations and the Health Care Facilities Act. The Department also modified § 403.22(d) to require that construction plans must be submitted to Health and receive its approval before construction begins. Also, a building permit applicant must obtain approval from Health before occupying a new health care facility. The Department added § 403.22(f) and (g), which prohibit a building code official from approving plans and issuing a certificate of occupancy for a health care facility until Health approved the plans and occupancy.
The House Labor Relations Committee inquired and the HAP and numerous other health care facilities commented that the proposed rulemaking would create administrative confusion and a regulatory burden for health care facilities. The HAP and the other commentators strongly urged the Department to delegate all plan review responsibilities to Health. The Department may delegate its authority to delegate its plan review and inspections to the Health. However, there is no statutory authority for the Department to delegate municipality authority under the UCC to Health. Municipalities that enforce the UCC may not delegate these activities to Health under the act. See section 105(d)(2) of the act. Furthermore, Health does not currently have the resources, particularly certified code officials, to accept this delegation.
IRRC and over 20 commentators stated that proposed § 403.23 was inconsistent with IBC requirements and existing Department of Public Welfare (DPW) regulations. IRRC questioned how this rulemaking would be reconciled with DPW regulations and whether the Department addressed these conflicts with DPW. The act saved certain provisions in the Fire and Panic Act for small, in-home, day care facilities (section 1101 of the act (35 P. S. § 7210.1101)). There are a number of conflicts between these saved requirements and the standards established in the IBC. To resolve conflicts regarding the age, numbers of children and fire-safety requirements, the language in the proposed rulemaking was changed. The final-form rulemaking specifies that in-home day care facilities with 4--6 children and 7--12 children of any age shall meet current fire safety and DPW licensure requirements and that all other child day care facilities must meet requirements spelled out for those occupancies in the IBC. Department representatives addressed these issues and reviewed revised language with DPW staff.
The Department deleted the phrase ''excluded from the Uniform Construction Code'' from the first sentence of § 403.24(3) (relating to historic buildings, structures and sites) because it was unnecessary and redundant. The Department also added language to this section that will prohibit a building code official from waiving UCC accessibility requirements for historic buildings, structures and sites. Only the UAAB and the Department can review and grant accessibility variances. This language was added in response to comments from the House Labor Relations Committee, the UAAB and other accessibility advocates. Additional language was also added to incorporate provisions from section 902 of the act concerning historical buildings, structures or sites.
IRRC commented that § 403.25(a)(iii) and (iv) (relating to manufactured and industrialized housing) use the term ''occupancy'' to trigger UCC applicability and that the Department should clarify whether this term means ownership or classification of occupancy. The term indicates classification of ''use and occupancy.'' The Department clarified this by adding a definition of ''occupancy'' in § 401.1, which regards an ''approved use of a building or structure'' under the UCC.
The House Labor Relations Committee and IRRC commented that the Pennsylvania Manufactured Housing Association and the Modular Building Systems Association contend that the act does not give the Department authority to regulate the manufactured or industrialized housing under section 901(a) of the act. These two associations also furnished comments on this section. However, this exemption only applies to manufactured and industrialized housing units. Section 901(a) of the act does not exempt site placement, installation of manufactured housing, foundations, utility connections and related activities. The Legislature intended that uniform standards apply to construction throughout this Commonwealth in the act. See section 102 of the act. This final-form rulemaking will allow inspection of placement and related activities for all manufactured and industrialized housing that currently does not exist. The UCC will cover these activities. Appendix E of the IRC, adopted in § 403.21(a)(9), will also provide coverage for placement of manufactured housing.
The Department's interpretation is consistent with the Manufactured Housing and Safety Standards Act (35 P. S. §§ 1656.1--1656.9) and related regulations and the Industrialized Housing Act (35 P. S. §§ 1651.1--1656.12). These authorities provide Department of Community and Economic Development (DCED) jurisdiction over the manufactured housing and industrialized housing units. DCED will retain jurisdiction to enforce standards and resolve complaints relating to the units. Moreover, the act supersedes DCED's regulations if there is a conflict between the act and the final-form rulemaking.
The enumerated ''exclusions'' under section 104(a) of the act constitute construction that was never intended for act coverage. These ''exclusions'' do not include manufactured or industrialized housing. An ''exemption'' for manufactured and industrialized housing, under section 901(a) of the act, constitutes construction that was originally intended for coverage and later legislatively exempted. An ''exemption'' is given less authority than an ''exclusion'' and an ''exemption'' is strictly construed against the person claiming it. This final-form rulemaking also comports with section 605(b) of the National Manufactured Home Construction and Safety Standards Act (42 U.S.C.A. § 5404) requiring Federal standards for installation by December 2005.
However, the Department clarified the reference to ''installation'' in § 403.25(b)(2) based upon conversations with IRRC. The Department does not intend to have jurisdiction over assembly of the components of the industrialized housing units.
The PSATS (representing 1,457 townships) and the Pennsylvania State Association of Boroughs (representing 961 borough communities) requested UCC coverage of placement, siting, foundations and related activities for manufactured and industrialized housing. These standards will provide uniform coverage of these activities, greater consumer protection and inspection of the installation of this type of construction that does not exist throughout this Commonwealth.
DCED and other parties alerted the Department after the public comment period that the proposed rulemaking did not contain standards for swimming pools. Section 104(f) of the act requires standards for pools and spas. Section 403.26 was added to address swimming pools and hot tubs. The Department adopted Appendix G of the IRC in § 403.21(a)(14). For public pools, hot tubs and spas, the final-form rulemaking will require compliance with ANSI/NSPI-1 1991, ANSI/NSPI-2 1999 and the Public Bathing Law (35 P. S. §§ 672--680d).
The Department renumbered proposed § 403.26 as § 403.27 and renamed it ''applicability and use of standards'' in the final-form rulemaking to more accurately reflect the contents of the section. The Department deleted § 403.26(a)(1), which enumerated that Chapter 1 of the IBC is not adopted as part of the UCC. Section 403.21(a)(1) already excludes Chapter 1. The Department further clarified the application of the IRC.
A number of commentators questioned whether proposed § 403.26(a)(1) (§ 403.27(a)(1) in the final-form rulemaking) and § 403.21(a)(1) prohibited local jurisdictions from adopting or modifying Chapter 1 of the IBC. Local municipalities may not generally adopt Chapter 1 of the IBC. Local jurisdictions may, under the act, adopt provisions of Chapter 1 which meet or exceed the UCC, including certain provisions of Chapter 1 and this final-form rulemaking (section 503(a) of the act (35 P. S. § 7210.503(a)). A municipality may enact ordinances which meet or exceed UCC requirements in specific areas listed in § 403.102(l) (relating to municipalities electing to enforce the Uniform Construction Code).
The Department received a comment concerning § 403.41 (relating to commercial construction) and numerous questions on whether a municipality electing to enforce the UCC must enforce both its commercial and residential provisions. A municipality electing to enforce the UCC must enforce both residential and commercial construction under section 501(a) and (e) of the act. Section 403.102(g) lists the ways a municipality may enforce the UCC. These include designating an employee to serve as a building code official; retaining third-party agencies; utilizing intermunicipal agreements; contracting with another municipality for services; and contracting with the Department for commercial building services. The Department will only contract with municipalities if it has the resources to perform the requested plan review and inspection work.
One commentator also questioned whether there was a requirement for fire protection permits in renumbered §§ 403.42 and 403.62. The regulation requires only a building permit. Fire protection is included in the IBC and the IRC final-form rulemaking requirements and will be part of the general building inspection process. Municipalities opting to enforce the UCC may adopt an ordinance which meets or exceeds UCC requirements and requires a fire protection permit and inspection.
IRRC commented that §§ 403.42 and 403.62 set forth comparable requirements for commercial and residential construction but are formatted differently. The Department rewrote § 403.62 to follow the organization of § 403.42.
Sections 403.42 and 403.62 generated many comments and much confusion. For clarity, the Department divided each of these sections into two sections. Sections 403.42 and 403.62 contain the heading and address the subject of ''permit requirements and exemptions'' for commercial and residential construction, respectively. Section 403.42a and § 403.62a (relating to permit application) have the heading and address the subject of ''permit application.'' The application process and format are contained in §§ 403.42a and 403.62a.
IRRC and seven commentators questioned the requirement in §§ 403.42(b) and 403.62(b) concerning the use of a DCED permit application form. The Department eliminated this requirement. IRRC suggested that the Department list the information to be included on a building permit application. The Department modified §§ 403.42a(h) and 403.62a(e) to specify the information required on the permit application which will include a site plan indicating the size and location of structures and their distance from lot lines. If construction involves demolition, the site plan will specify the construction that will be demolished or left intact.
Three commentators questioned the building permit exemption language for retaining walls in §§ 403.42(c)(1)(iii) and 403.62(c)(1)(ii). The language did not require a building permit for retaining walls that were not over 4 feet in height measured from the ''bottom of the footing.'' The commentators suggested that this required building permits for all retaining walls since the footings for retaining walls are generally 3 feet below grade. The Department changed these exemptions to read ''4 feet in height measured from the lowest level of grade'' in §§ 403.42(c)(1)(iii) and 403.62(c)(1)(ii).
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