DOS-02-07-00010-P Uniform Fire Prevention and Building Code

1/10/07 N.Y. St. Reg. DOS-02-07-00010-P

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 2

January 10, 2007

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

PROPOSED RULE MAKING

HEARING(S) SCHEDULED

 

I.D No. DOS-02-07-00010-P

Uniform Fire Prevention and Building Code

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed action:

Repeal of Parts 1220-1226 and addition of new Parts 1219-1227 to Title 19 NYCRR.

Statutory authority:

Executive Law, section 377

Subject:

Standards for the construction and maintenance of buildings and structures and for protection from the hazards of fire (the New York State Uniform Fire Prevention and Building Code).

Purpose:

To amend the New York State Uniform Fire Prevention and Building Code to assure that it effectuates the purposes of article 18 of the Executive Law and the specific objectives and standards set forth in such article.

Public hearing(s) will be held at:

10:00 a.m., Feb. 26, 2007 at Department of State, 41 State St., 11th Fl., Conference Rm., Albany, NY; and 10:00 a.m., Feb. 27, 2007 at Hughes State Office Bldg., 333 E. Washington St., Main Hearing Rm., First Fl., Syracuse, NY; 1:00 p.m., Feb. 28, 2007 at Amherst Town Hall, 5583 Main St., Council Chambers, Upper Level, Williamsville, NY; and 10:00 a.m., March 2, 2007 at Town of Hempstead Pavilion, One Washington St., Hempstead, NY.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Interpreter Service:

Interpreter services will be made available to deaf persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Substance of proposed rule (Full text is not posted on a State website):

Section 377 of the Executive Law directs the State Fire Prevention and Building Code Council (the “Code Council”) to review the entire New York State Uniform Fire Prevention and Building Code (the “Uniform Code”) from time to time to assure that it effectuates the purposes of the Law, and authorizes the Code Council to amend the Uniform Code from time to time to achieve that end. The rule making would repeal the existing version of the Uniform Code (which is now found in 19 NYCRR Parts 1220 to 1226, inclusive, and in the publications incorporated by reference therein) and replace it with a new version of the Uniform Code, to be contained in new 19 NYCRR Parts 1219 to 1227, inclusive, and the new publications to be incorporated therein by reference.

The new version of the Uniform Code will include eight components: the Building Code, the Residential Code, the Fire Code, the Plumbing Code, the Mechanical Code, the Fuel Gas Code, the Property Maintenance Code, and the Existing Building Code.

The Building Code establishes life safety construction requirements for assembly, business, educational, factory industrial, high hazard, institutional, mercantile, multi-family residential, storage and utility and miscellaneous buildings.

The Residential Code addresses one- and two-family dwellings and townhouses not more than three stories in height with a separate means of egress and their accessory structures.

The Fire Code provides requirements for life safety and property protection from the hazards of fire, explosion or dangerous conditions in new and existing buildings.

The Plumbing Code, Mechanical Code and Fuel Gas Code addresses the erection, installation, alteration, repairs, relocation, replacement, addition to, use or maintenance of plumbing systems, mechanical systems and fuel gas systems.

The Property Maintenance Code provides minimum requirements to safeguard public safety, health and general welfare insofar as they are affected by the occupancy and maintenance of structures and premises.

The Existing Building Code provides minimum requirements to safeguard public safety, health and general welfare insofar as they are affected by the repair, alteration, change of occupancy, addition and relocations of existing buildings.

Text of proposed rule and any required statements and analyses may be obtained from:

Raymond Andrews, Department of State, 41 State St., Albany, NY 12231, [phone], e-mail: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

March 12, 2007.

Summary of Regulatory Impact Statement

1. STATUTORY AUTHORITY

Article 18 of the Executive Law entitled, the New York State Uniform Fire Prevention and Building Code Act establishes the State Fire Prevention and Building Code Council (hereinafter “Code Council”) and authorizes such council to formulate a code to be known as the Uniform Fire Prevention and Building Code (hereinafter “Uniform Code”). Executive Law § 377 directs that the Uniform Code shall provide reasonably uniform standards and requirements for construction and construction materials for public and private buildings, including factory manufactured homes, consonant with accepted standards of engineering and fire prevention practices.

Executive Law § 378 provides that the Uniform Code shall address certain specified subjects. The subjects are listed in the full Regulatory Statement.

Subdivision 1 of Executive Law § 377 specifically states that the Code Council may amend particular provisions of the Uniform Code and shall periodically review the entire code to assure that it effectuates the purposes of Article 18 of the Executive Law. This rule making would repeal the existing text of the Uniform Code which is based on the International Code Council's (ICC) 2000 codes and 2001 supplements, and replace it with new text which is based upon the 2003 International Code, eight individual codes developed and published by the International Code Council (ICC), a national building officials organization. Although the existing text of the Uniform Code is to be repealed, much of the new code text will essentially be a recodification of current Uniform Code provisions but with appropriate modification to accommodate advances in construction technology.

2. LEGISLATIVE OBJECTIVES

When the State Legislature adopted Article 18 of the Executive Law in 1981, it declared in Subdivision 2 of Executive Law § 371 that it shall be the public policy of the State of New York to provide for promulgation of a Uniform Code addressing building construction and fire prevention in order to provide a basic minimum level of protection to all people of the State from the hazards of fire and inadequate building construction. The Code Council was assigned the task of formulating the Uniform Fire Prevention and Building Code which took effect January 1, 1984. However, in the years following 1984, the Uniform Code did not keep pace with the evolving technology of fire prevention and building construction. Furthermore, as the rest of the nation moved to using a nationally accepted set of model codes, New York continued to maintain the separate identity of its building and fire prevention code until January of 2003, when it repealed its entire code and replaced it with text based primarily on the 2000 edition of the International Codes.

The Uniform Code adopted in 2003 was based on international codes, and represented the first major revision of the Uniform Code since its inception in January 1984. This rule making would adopt new text for the Uniform Code, and would constitute the first major update of the international code-based version of the Uniform Code. The Code Council has concluded that this rule making would further the purposes, objectives and standards of Article 18.

By repealing the existing text of the Uniform Code and replacing it with an update based primarily upon newer versions of model codes developed and published by the International Code Council (ICC), the State Fire Prevention and Building Code Council seeks to better effectuate the purposes, objectives, and standards set forth in Article 18 of the Executive Law.

3. NEEDS AND BENEFITS

The purpose of this rule making is to adopt new provisions for the Uniform Fire Prevention and Building Code. This change is necessary if New York State is to remain competitive with the rest of the nation in matters involving building construction while at the same time providing an adequate level of safety to its residents. It is also necessary if New York State wishes to keep pace with evolving technology concerning fire prevention and building construction and to have a building and fire prevention code which is consistent with nationally accepted model codes. The benefits to be derived from the rule making will be the creation of an enhanced economic atmosphere in which building construction is encouraged.

Following Item #10 in the full Regulatory Impact Statement, the Needs and Benefits of significant provisions of the Uniform Code are discussed.

4. COSTS

(a) COST TO REGULATED PARTIES FOR THE IMPLEMENTATION OF AND CONTINUING COMPLIANCE WITH THE PROPOSED RULE.

Further information concerning the costs of significant provisions of the Uniform Fire Prevention and Building Code are discussed following Item #10 of the full Regulatory Impact Statement. It is anticipated that regulated parties will experience building development savings as a result of this rule. This rule reflects performance based regulatory requirements providing regulated parties more alternatives to protect the occupants and users of buildings while at the same time fulfilling programmatic space needs at the most cost effective solution.

(b) COSTS TO THE AGENCY, THE STATE AND LOCAL GOVERNMENTS FOR THE IMPLEMENTATION AND CONTINUATION OF THE RULE.

The Department of State will enter into a contract with ICC under which ICC will provide (1) a license to modify the copyrighted International Codes to use the modified International Codes as the new Uniform Code, (2) 4,500 sets of the new codes books for local governments, local governmental officials, and Department of State staff, (3) governmental memberships in ICC for approximately 1,600 local governments in New York State, and (4) examinations leading to certification of Department of State staff in a variety of code-enforcement related categories. The sums to be paid under this contract total approximately $1,395,480 over three years, and represents a cost to the Department of State and the State.

State and local governments should realize cost savings when they construct buildings for their own use in the same way that private builders will be able to recognize these savings as noted in subdivision (a) above.

Further, information concerning cost and savings of the most significant of the new provisions of the Uniform Fire Prevention and Building Code are discussed following Item #10 of this Regulatory Impact Statement.

5. LOCAL GOVERNMENT MANDATES

This rule making will not impose any program, service, duty or responsibility specifically upon counties, cities, towns, villages, school districts, fire districts or other special districts. If any of these governmental entities were to undertake the construction of a building or structure, however, the construction process would be subject to the provisions of the proposed rule. Similarly, existing buildings and structures owned or under the control of local government entities are potentially subject to maintenance or fire prevention provisions of the Uniform Code.

6. PAPERWORK

This rule will not impose any additional reporting or record keeping requirements. No additional paperwork is anticipated.

7. DUPLICATION

The New York State Uniform Fire Prevention and Building Code provides standards for the construction and maintenance of buildings and structures and for the protection of buildings and structures and their occupants from the hazards of fire. These are matters for which the federal government does not impose comprehensive requirements. The federal government has addressed the topic of accessible and usable facilities for the physically disabled, however, through adoption of the Americans with Disabilities Act (ADA) and the Fair Housing Act. The new text proposed for the Uniform Code also requires accessibility to buildings and structures for the physically disabled. Although the existence of federal and state standards may raise issues of overlap or conflict, no such overlap or conflict exists with this proposed rule.

Several State agencies have promulgated regulations which impose requirements upon buildings or structures which house activities which are licensed or regulated by the particular agency. Such regulations may impose an additional layer of regulation upon the construction, maintenance, or use of certain categories of buildings. These other regulations, however, are focused upon activities or occupants regulated or protected by the particular State agency and have been promulgated pursuant to statutory authority other than Article 18 of the Executive Law.

New to this version of the Uniform Code is an index which lists all state agencies that have building code related regulations.

Also new is the New York State Existing Building Code, based on a model existing building code published by the ICC. New York adopted code requirements for existing buildings in January 1, 2003 (titled Appendix K), which was part of the Building Code of New York State. The ICC had not completed a model existing building code in 2003. As a result, New York adopted code requirements based on ICC code requirements as they existed at that point in their development. Now, with this proposal, New York will be adding the ICC Existing Building Code, with modifications specific to New York, to the other seven 2003 versions of the ICC based codes as a basis for the Codes of the State of New York.

8. ALTERNATIVES

It is the policy of the Department of State to modernize and amend the Uniform Fire Prevention and Building Code, so as to maintain consistency with the national model codes, to keep building practices in New York State consistent with practice nationally, and to incorporate new technical developments in a timely manner. Consequently, the alternative of maintaining existing provisions of the Uniform Code was rejected.

To assist the Code Council, technical subcommittees were established to review the ICC Codes and make recommendations to the Code Council to ensure that the new provisions of the Uniform Code would remain appropriate and addresses developing design and construction issues and needs in New York State.

All subcommittees found it was necessary to recommend changes to the 2003 ICC family of codes. Significant provisions of the proposed new Uniform Fire Prevention and Building Code are discussed with reference to Needs and Benefits, Costs, and Alternatives following Item #10 of this Revised Regulatory Impact Statement.

Numerous hearings and public hearings took place throughout New York State in anticipation of the formal initiation of the rule making process. These meetings are listed in the full Regulatory Impact Statement.

9. FEDERAL STANDARDS

The federal government has adopted the Americans with Disabilities Act (ADA) which requires certain facilities to be accessible and usable by the physically disabled. The new text proposed for the Uniform Code also includes provisions which require buildings and structures to be accessible and usable by the physically disabled. The proposed rule would exceed the minimum standards established by the federal government.

10. COMPLIANCE SCHEDULE

The target date for publishing a notice of adoption for this rule making is mid-2007. It is the intention of the Code Council to establish a transition period to begin with publication of the notice of adoption. During this period, regulated parties will have the option of construction in compliance with either the current code provisions or the newly adopted provisions.

The delay of the effective date of the new Uniform Code provisions until after adoption, and the option of compliance with either the existing or the proposed Code during that period, ensure that regulated parties will be able to achieve compliance with the rule on the date it is adopted.

Regulatory Flexibility Analysis

1. EFFECT OF RULE.

This rule would amend the Uniform Fire Prevention and Building Code (“Uniform Code”). The current version of the Uniform Code, which went into effect on January 1, 2003, is based upon the 2000 editions of certain model codes developed by the International Conference of Building Officials (“ICBO”). If adopted, this rule would repeal the existing version of the Uniform Code and add a new version of the Uniform Code based upon the 2003 editions of corresponding model codes developed by the International Code Council (“ICC”), an organization which is a successor of ICBO. An eighth code - the Existing Building Code - which is based on the 2003 version of the model existing building code developed by ICC, will also be added. The Existing Building Code will replace Appendix K of the New York State Building Code.

The Uniform Code is applicable in all areas of the State with the exception of the City of New York. Therefore, all areas of the State except the City of New York will be affected by this rule making, and the rule has the potential to affect all small businesses.

Small businesses that construct, own, or operate buildings or structures will be required to comply with this rule. Businesses that provide services to building owners, such as facility managers, design professionals (e.g., architects and engineers), general and specialty contractors (including home builders), and product suppliers, though not directly regulated by this rule, will be impacted by this rule. It is not possible to calculate the exact number of businesses that will be affected by this rule, but the number is likely to be large. For example, as of April of 2004, there were 13,731 active registered architects and 27,483 active registered engineers in New York State.

This rule making will not impose any duty or responsibility specifically upon local governments except insofar as a particular local government is responsible for the construction or operation of a building which is subject to the provisions of the Uniform Code. In that instance, a local government is in no different situation than that of any building owner or responsible party, public or private. In this respect, adoption of this rule making will affect all cities, towns, and villages of the State.

In addition, Executive Law '381 provides that every city, town, and village of the State shall administer and enforce the Uniform Fire Prevention and Building Code within its boundaries, except in limited specified circumstances. Consequently, in most instances, the individual cities, towns and villages of the State are responsible for enforcement of the Uniform Code within their boundaries, and will be responsible for enforcing the new Uniform Code provisions proposed for adoption by this rule making.

2. COMPLIANCE REQUIREMENTS.

This rule making will not change local government's responsibility for administering and enforcing the Uniform Code. There will be no change in requirements for local governments concerning reporting, record keeping, and other compliance requirements, or professional services.

3. PROFESSIONAL SERVICES.

Regulated parties will continue to rely upon design and construction professionals to advise them of the requirements of the Uniform Code. Building owners typically rely on these design and construction professionals for their expertise in building regulations.

4. COMPLIANCE COSTS.

It is anticipated that regulated parties will realize savings in construction costs as a result of this rule making. Indirectly impacted parties, such as architects, engineers, designers, contractors and builders, will incur the cost of the training necessary to familiarize themselves with the new and changed Uniform Code provisions. The Department of State estimates that, given a typical class size of 20 to 25 persons, the training costs will range from $150 to $200 per person for each part (i.e., building code, fire code, residential code, etc.) of the Uniform Code. However, it is a customary practice for registered design professionals and construction personnel to receive continuing education throughout their careers. In New York State, architects are required by the Education Law to receive continuing education in order to maintain an active registration to practice the profession.

Many regulated parties and indirectly impacted parties will be required to purchase an updated set of code books. The Department of State estimates that a full set of new code books (including all eight volumes) will cost approximately $300.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY.

The new code provisions proposed for adoption by this rule making will continue to provide regulated parties with a broad range of compliance options. These provisions are performance based and therefore provide an opportunity to select the most cost effective alternative for compliance.

Regulatory change, like technological innovation, is constant in the construction industry. Regulated parties as well as those who provide services to them (i.e., architects, engineers, designers, contractors, and builders) are accustomed to such change. This rule making is expected to encourage innovation in the construction industry and to provide increased opportunities for small businesses to grow.

As this adoption consists primarily of an updating of the International Codes (with some New York modifications), the changes resulting from this adoption will be significantly less than the changes that occurred in 2002, when the New York State Uniform Fire Prevention and Building Code that existed since 1984 was entirely replaced, for the first time, with the International Code-based codes.

Several training resources are available for impacted parties to learn the proposed new provisions of the Uniform Code. These include trainers affiliated with the ICC and other specialized training professionals. Other entrepreneurs will undoubtedly be encouraged to join the market to meet the demand for this specialized training. The staff of the Division of Code Enforcement and Administration of the Department of State will provide training for local government enforcement personnel.

6. MINIMIZING ADVERSE IMPACT.

The Department of State – Division of Code Enforcement and Administration will provide training on the new provisions of the Uniform Code for all local government code enforcement personnel in the State. Executive Law '381 provides that local governments which do not wish to enforce the Uniform Code may relinquish that responsibility to the county in which they are located. In turn, a county may relinquish enforcement responsibility to the Department of State. As the health, safety, and security of the people of the State are at issue, exemption from coverage by the rule was not considered an option for minimizing the impact on local governments and/or small businesses.

One critical factor in adopting the ICC codes by New York State in 2002 was the fact that these codes are updated on a three-year cycle to keep up with industry practice and technical and life-safety evolution.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION.

To assist in the development of this proposed rule making, the Code Council established technical subcommittees to review the individual ICC codes and to make recommendations for modifications that would insure that the new text of the Uniform Code would address current design and construction issues and needs.

The subcommittees consisted of a broad range of members including building and fire code officials representing local governments and individuals representing various interests such as architecture, engineering, construction, small business, historic preservation as well as the needs of the disabled. The members comprising these committees also represented a diversity of geographic locations throughout New York State. Their knowledge and expertise in their particular fields and their varied backgrounds provided a broad range of perspectives.

Meetings throughout the rule making process have included regulated parties and code enforcement personnel of local governments throughout New York State. Technical subcommittee meeting were open to the public and agendas and meeting minutes posted on the DOS website. Proposed New York modifications made by the various Technical Subcommittees were posted on the DOS website for public inspection. Code update presentations by DOS staff were made to various groups: December 2, 2005 - New York State Building Officials Conference in Jericho, NY, February 1 - Niagara Frontier Building Officials 21st Annual Educational Conference in Amherst, February 2 - code officials in Rockland County and fire chiefs and their State Legislatures in Pearl River, February 15 - Construction Specification Institute in Albany, February 23 - Association of Towns in New York City, March 21 - Finger Lakes Building Officials Association in Rochester, New York, April 14 - NYS Parks, Recreation and Historic Preservation in Schagticoke, April 21 - Central Chapter of the New York State Building Officials Conference in Liverpool, April 29 - Society of Fire Protection Engineers in Albany. In addition, the Department of State held public forums on the proposed updates. They took place in May, 2005 in Rochester, Hempstead and Albany. The intent of the forums was to provide comments for support and opposition on the proposals advanced by the technical subcommittees. The written comments were posted on the DOS web site prior to the forums to allow other potential speakers the opportunity to see what the issues were.

Comments from the forum were provided to the State Fire Prevention and Building Code Council prior to the proposed rule making to the codes. Public hearings will be held after a notice of proposed rule making has been published in the State Register in accordance with the provisions of the State Administrative Procedure Act.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS:

The Uniform Fire Prevention and Building Code (the “Uniform Code”) is applicable in all areas of the State with the exception of the City of New York. Therefore, all rural areas of the State will be affected by this rule making. This rule making will repeal the existing text of the Uniform Code, which is based on the 2000 edition of seven model codes developed by the International Conference of Building Officials (“ICBO”), and replace it with text based on the 2003 editions of corresponding model codes developed by the International Code Council (“ICC”), an organization which is a successor of ICBO. An eighth code - the Existing Building Code - which is based on the 2003 version of the model existing building code developed by ICC, will also be added. The Existing Building Code will replace Appendix K of the New York State Building Code.

2. REPORTING, RECORDINGKEEPING AND OTHER COMPLIANCE REQUIREMENTS AND PROFESSIONAL SERVICES:

Regulated parties will continue to rely upon design and construction professionals to advise them of the requirements of the Uniform Code. Building owners typically rely on these design and construction professionals for their expertise in building regulations.

3. COSTS:

The new provisions of the Uniform Code are expected to reduce building and development costs in general. The new provisions respond to updates in the building and fire safety industry thereby allowing developers to comply with the Uniform Code more easily and at less cost. This reduction in building and development costs is expected to occur in rural communities as well as urban and suburban areas of the State.

4. MINIMIZING ADVERSE IMPACT:

The proposed rule is performance based and requires uniform standards for building construction and fire prevention in all areas of the State with the exception of New York City. The proposed rule will require compliance and reporting requirements similar to those required by the current provisions of the Uniform Code. As the health, safety and welfare of the people of New York are at issue, exemption from coverage by the rule was not considered an option for minimizing impact on rural areas.

5. RURAL AREA PARTICIPATION:

The technical subcommittees involved in the development of this rule making included members from rural areas. Meetings of the subcommittees were open to the public and public participation was encouraged. Technical subcommittee meetings were open to the public and agendas and meeting minutes were posted on the Department of State website. Proposed New York State modifications made by the various Technical Subcommittees were posted on the DOS website for public inspection. Code update presentations by Department of State staff were made to various groups: December 2, 2005 - New York State Building Officials Conference in Jericho, New York, February 1 - Niagara Frontier Building Officials 21st Annual Educational Conference in Amherst, New York, February 2 - code officials in Rockland County and fire chiefs and their state legislatures in Pearl River, February 15 - Construction Specification Institute of Albany, New York, February 23 - Association of Towns in New York City, March 21 - Finger Lakes Building Officials Association in Rochester, New York, April 14 - New York State Parks, Recreation and Historic Preservation in Schagticoke, April 21 - Central Chapter of the New York State Building Official's Conference in Liverpool, April 29 - Society of Fire Protection Engineers in Albany, New York. In addition, the Department of State held public forums on the proposed updates. They took place in May, 2005, in Rochester, Hempstead and Albany. The intent of the forums was to provide comments for support and opposition on the proposals advanced by the technical subcommittees. The written comments submitted prior to the forums were posted on the Department of State website to allow other potential speakers the opportunity to see what the issues were. Comments from the forum were provided to the State Fire Prevention and Building Code Council prior to the proposed rule making to the codes. Public hearings will be held after a notice of proposed rule making has been published in the State Register in accordance with the provisions of the State Administrative Procedure Act.

Job Impact Statement

The Department of State has determined that it is apparent from the nature and purpose of the proposed rule making that it will not have a substantial adverse impact on jobs and employment opportunities.

This rule making would repeal the current version of the Uniform Fire Prevention and Building Code (the “Uniform Code”), and add a new version of the Uniform Code. The current version of the Uniform Code, which is found in 19 NYCRR Parts 1220, 1221, 1222, 1223, 1224, 1225, and 1226 and the publications incorporated by reference therein, went into effect January 1, 2003 and is based on the 2000 editions of the International Residential Code, International Building Code, International Plumbing Code, International Mechanical Code, International Fuel Gas Code, International Fire Code, and International Property Maintenance Code, as developed by the International Conference of Building Officials (“ICBO”). The new version of the Uniform Code will be based on the 2003 editions of corresponding International Codes as developed by the International Code Council (“ICC”), a successor to ICBO. In addition, the new version of the Uniform Code will include a new Part 1227, which will be based on the 2003 edition of the International Existing Building Code as developed by ICC.

The International Codes incorporate the most current technology in the areas of building construction and fire prevention. To maintain this currency, the International Codes are updated every three years. As a consequence, the Department of State concludes that this update, which is based upon the newer (2003) versions of the International Codes, will provide a greater incentive to construction of new buildings and rehabilitation of existing buildings than exists with the current Uniform Code. Therefore, this rule making will not have a substantial adverse impact on jobs and employment opportunities within New York.