Legislature(2001 - 2002)
03/15/2002 03:20 PM House L&C
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 399-UNIFORM MECHANICAL CODE
HB 436-MECHANICAL CODE
HB 437-UNIFORM MECHANICAL CODE
CHAIR MURKOWSKI announced that the next order of business would
be to continue hearing testimony on the legislation relating to
the mechanical code: HB 399, HB 436, and HB 437. She noted
that there are committee substitutes (CS) for HB 436 and HB 437.
[The committee had previously adopted CSHB 399, Version 22-
LS1461\C, Bannister, 2/20/02.]
The committee took an at-ease from 3:37 p.m. to 3:39 p.m.
Number 0999
JOHN KNABE, Chair, City of Fairbanks Plumbers Examining Board;
Director of Training for Plumbers and Pipefitters, UA Local 375,
testified via teleconference and announced his support of HB
399, HB 436, and HB 437. Mr. Knabe informed the committee that
the Fairbanks Plumbers Examining Board consists of five members
who are appointed by the mayor and confirmed by the city
council. These members serve without compensation. The board
is charged with conducting examinations for the purpose of
determining the knowledge and competency of mechanical work and
issuing certificates of qualification. Approximately 60
contractors are certified to perform mechanical work in the City
of Fairbanks. He specified that examinations are on the Uniform
Mechanical Code (UMC) and continue to be. Mr. Knabe mentioned
that at the May 2, 2001, meeting of the City of Fairbanks
Plumbers Examining Board a motion to support adoption of the UMC
in lieu of the International Mechanical Code (IMC) carried
unanimously.
MR. KNABE turned to his perspective as the Director of Training
for the Plumbers & Pipefitters. He highlighted that the City of
Fairbanks Plumbers & Pipefitters Joint Apprenticeship Training
Committee has been training on the UMC since statehood. It's
estimated that the [Plumbers & Pipefitters] trust fund will have
to spend an additionally $50,000 for retraining on the IMC.
However, this figure doesn't include the lost time for everyone
impacted. Mr. Knabe concluded: "I am very disappointed at the
arrogance and lack of respect for the democratic process by some
who support the International Codes."
Number 1131
LARRY GILFILLAN testified via teleconference. He informed the
committee that he began his career in plumbing in 1970 and in
1975 he established a nonunion plumbing shop. Mr. Gilfillan
noted that he has taught service technicians under the Uniform
Plumbing Code (UPC) and the UMC since he started in this trade.
He explained that when [new] heating and plumbing fixtures are
available on the market, the UPC and UMC make changes and
training is available. He noted that Anchorage has an
International Association of Plumbing and Mechanical Officials
(IAPMO) which meets monthly in order to keep everyone abreast of
the code changes and reasons why these codes exist. Mr.
Gilfillan highlighted that he uses his UPC and UMC books and the
two illustrated training manuals to train his service
technicians as well as to help explain the codes to his
customers. These code books are easy to read and are complete.
The service trade most often uses venting codes, gas piping
codes, and local amendments to the code. Therefore, when
retrofitting systems, [the plumber] must bring systems up to
present code and explain why these codes must be followed for
safety. Mr. Gilfillan pointed out that in the past it was
difficult to compete with companies that didn't follow the codes
or obtain permits. However, that seems to be less difficult now
because the public is more aware and better informed about
issues of public safety. "Allowing a less restrictive code, a
less definable code, because it takes more time and books to
research a specific issue, is a giant leap backwards for the
State of Alaska and its people," he said. He predicted that
this change in code will impact the plumbing and heating
contract business now and in the future. Mr. Gilfillan
expressed concern that the plumbing and heating trade will be
overrun with contractors who will work with a less restrictive
code and take no responsibility for their actions. He predicted
that many like himself will be out of business. For example,
the IMC allows the use of unvented room heaters by reference to
the International Fuel Gas Code (IFGC) section 301.3, while
those are specifically prohibited under section 916.3 of the
2000 UMC. This is only one of many examples [of compromised
safety under the IMC].
Number 1341
REPRESENTATIVE ROKEBERG requested clarification with regard to
the use of [unvented room heaters] under the IMC and the UMC.
MR. GILFILLAN explained that on the market there are unvented
heaters that rely on "still switches" to provide safety for the
occupants of the home. Those "still switches"
malfunction. Therefore, Mr. Gilfillan said he believes that
codes requiring vented heaters with the appropriate combustion
air and size vents are safer and more restrictive. Although
it's more expensive to run a vent for these heaters, it's much
safer for the public. Mr. Gilfillan questioned whether unvented
room heaters would be listed and tested. He predicted that such
would fail under a less restrictive code. In further response
to Representative Rokeberg, Mr. Gilfillan specified that he was
present about half a day for the Municipality of Anchorage's
code review.
Number 1430
COLIN MAYNARD, BBFM Engineers, testified via teleconference. He
informed the committee that he has served on the Anchorage
Building Board and has been involved in the municipality's
structural footed (ph) options since 1988. With regard to the
claims that the IMC is a new code by an untried agency, he
pointed out that the International Conference of Building
Officials (ICBO) is one of the organizations involved in writing
the IMC. The ICBO has been in existence since 1927. He
highlighted that the [ICBO] has written the Uniform Codes up to
this point. Two other agencies have been writing codes since
1940 and 1950. The International Code has been worked on since
the early '90s. In fact, the chapters in the 1994
[International] code were rearranged so that all three
organizations would be in alignment. The State Fire Marshal
should have introduced technical legislation in order to avoid
this problem with the name change, which is essentially the
case, he said. The ICBO wrote the Uniform Code and the
International Code.
MR. MAYNARD turned to HB 436, which he characterized as a very
bad bill. He pointed out that there are no current codes
adopted by the American National Standards Institute (ANSI)
method, including the UMC 2000. Therefore, if HB 436 is passed,
there would be no code that the state could adopt until the
National Fire Protection Association (NFPA) completes the NFPA
5000 codes. He said that the NFPA 5000 is an untested building
code by an agency that's never written a building code before.
He expressed concern with what he has seen of the NFPA 5000.
For example, [the NFPA allows] a seven-story wood building with
100,000 square feet to be built with separation walls. Mr.
Maynard said that he didn't believe it's in the best interest of
the state to go to the NFPA 5000 code. Mr. Maynard asked if all
of the [code] agencies and municipalities have to be ANSI
approved since the codes have to be ANSI approved. If that is
the case, he questioned the cost and time involved. Mr. Maynard
urged the committee to not pass HB 436 because it's a method to
force the use of the NFPA and IAPMO codes. Mr. Maynard
suggested that the proprietary language be eliminated from HB
399, HB 437, and the statutes.
Number 1562
MR. MAYNARD, in response to Representative Rokeberg, explained
that under the NFPA 5000 a seven-story, 100,000 square foot
building could be built from wood. Furthermore, the NFPA 5000
specified that if one-hour separation walls were constructed,
the building could be larger.
REPRESENTATIVE ROKEBERG inquired as to whether the problems
revolving around training and those in the field were considered
during the Municipality of Anchorage's recent adoption of the
IMC.
MR. MAYNARD noted that he was on the structural code committee
and for [the structural code] there was no other option [than
the IMC]. However, he said he understood that there had been
discussion with regard to going to the UMC or the IMC in the
mechanical committee and the plumbing committee. Since the
state had already adopted the UPC, the UPC was adopted. The
mechanical committee ultimately went with the IMC because it's
linked to all the other codes that [could be] adopted. Mr.
Maynard stated that the mechanical system under one code or the
other isn't much different. The basic difference between the
codes is that one, [the UMC] is very proscriptive, whereas the
IMC offers various [choices], which may be better and cheaper in
the long run. With regard to safety, it depends upon the
provision as to whether the IMC or the UMC are safer. He noted
that IAPMO was involved in the development of the IMC and thus
he said he couldn't believe it [was involved] in producing a
code that wouldn't work.
Number 1691
TOM McGEE testified via teleconference. He began by informing
the committee that he has been a general contractor who has
specialized in the design and construction of commercial
buildings in Alaska for 30 years. Mr. McGee provided the
following testimony:
Unlike most contractors that build whatever designs by
whatever codes the part of the project they bid on, we
design the buildings to suit our clients' needs and
budgets. We have found that most often the buildings
designed under the IBC [International Building Code]
allow us to take advantage of safety features, such as
sprinklers, that are already a part of our design to
lessen the cost to our customers. One example is a
20,000 square foot warehouse office building recently
designed for a relatively small lot that must be
placed within 10 feet of the property line. IBC has a
no additional cost to do so, UBC [Uniform Building
Code] adds $45,000 to a $1.4 million job. UBC also
requires $8,000 for fire-rated occupancy separation,
while IBC requires none at the end because of
sprinklers and other safety features designed into the
building. HB 436 excludes the use of IBC at great
cost to the people of Alaska. Many companies will not
be able to build new facilities because they will be
too expensive. Over 50 percent of the projects we
price are never built, and price is a major issue. If
your purpose behind these bills is to object to the
method of adoption of the new code, please do not
throw out the baby with the bath water. Deal with the
adoption issue; do not prescribe a specific code and
preclude what is, by most opinions, the best code for
Alaska simply because you do not like the means of
adoption of that code. Thousands of hours have gone
into the review process statewide and the consensus is
that International body of codes is ultimately the
best body of codes available to the state and is
consistent with the codes adopted by most of the
nation. Thirty-seven states, either in whole or in
part, have adopted the IBC. Why [has] ... HB 399 been
proposed by legislators who have no idea of which code
is best for Alaska nor do they know which approval
process is best, that's in HB 436. The code proposed
is one presented to legislatures by the organization
that developed that particular code and they want
exclusive rights to sell codes and related materials
in the State of Alaska. Bill HB 399 gives them this
right at the expense of all Alaskans. The codes are
not written for the plumbers or mechanical
contractors, their purpose is to ensure safe buildings
for people to live and work in. Designers of
buildings and mechanical systems have far more contact
with the code than tradesmen. And it is the designers
who overwhelmingly support the new codes adopted by
the state as do many mechanical contractors. It may
be that the legislature is ultimately responsible for
the adoption of building codes in Alaska, then at
least adopt a code determined by your officials who
have done their homework to come up with the best code
for the people of Alaska and not those offered by
special interests who stand to profit from their
code's adoption, such as IAPMO or the plumbers. The
main idea behind codes is not to make money for those
who produce them or work with them, it is to provide
safe, efficient, and economical buildings.
Number 1836
REPRESENTATIVE ROKEBERG asked if the 10 foot setback was due to
building material types or was because of the type of door
structure.
MR. McGEE explained that the 10 foot setback was because of the
fire protection required on the exterior wall based on the
closeness to the property line. The IBC allows a 10 foot
setback with no additional cost for fire protective walls
whereas the UBC requires a 20 foot setback. Mr. McGee expressed
the need to have the flexibility [of the IBC] due to the small
lots that are used to their maximum potential. The IBC relies
on sprinklers and other safety features.
REPRESENTATIVE ROKEBERG surmised then that under the IBC the
interior door systems wouldn't have to have 20-minute fire
ratings.
MR. McGEE clarified that under the IBC, a two-hour [fire] wall
would be required. Within the [aforementioned] building there
is occupancy separation that is required and carries an expense
under the UBC whereas the IBC allows the use of sprinklers and
other [safety] features [to meet safety requirements].
Number 1918
CRAIG HATELY, Training Coordinator, UA Local 367, testified via
teleconference. He informed the committee that he has been
working in the mechanical trade for 13 years, and teaching at
[UA Local 367] for seven years. Upon review of the IMC, Mr.
Hately said it was clear that the IMC would be difficult to
teach because of the excessive cross referencing between the
IMC, the other International Code books, and NFPA documents.
Furthermore, the entire series of 21 books for the International
Codes would have to be purchased. Purchase of those books and
the NFPA documents amounts to over $600 a set, while the cost of
the UMC is $47 and the UPC is $57. This cost for the [IMC]
would be a crippling hit to the training fund. Furthermore, he
related his belief that the constant cross referencing would
cost the contractor and end user money. With regard to the
notion of using both codes, Mr. Hately viewed that as an even
larger problem. Mr. Hately said that he is also opposed to the
IMC due to the disclaimer in all the International Code books.
This disclaimer says that "they" don't accept any liability
resulting from the compliance with the provisions. He returned
to the earlier example involving the unvented room heaters and
recalled the Iditarod mushers who became sick after they were in
tents with unvented room heaters. Mr. Hately echoed earlier
testimony with regard to the need for the IFGC to be utilized in
order to comply with the IMC, and pointed out that [the IFGC]
conflicts with the UPC, which has been adopted by the state. In
conclusion, Mr. Hately expressed his strong opposition to
adoption of the IMC.
Number 2051
DICK CATTANACH, Executive Director, Associated General
Contractors (AGC), testified via teleconference. He noted that
the committee should have received his testimony dated March
12th. Mr. Cattanach informed the committee that this code
change is an issue in which the AGC hasn't been involved because
the adoption of the International Code by the State Fire Marshal
occurred without AGC's direct involvement. The AGC didn't
become too involved until the hearings were held, and after the
hearings, AGC wasn't too involved because the [IMC] was adopted.
Now there is the legislation before the committee, which caused
AGC to form a committee to review [the legislation]. Mr.
Cattanach said that AGC is concerned with regard to the
liability that Representative McGuire spoke of [at the prior
hearing]. "We think it's unfair for the state to be involved in
something that basically fosters additional liability on the
design community [and] on the construction community for
something that may, in fact, be declared illegally adopted," he
said. The private sector shouldn't be left with that potential
liability. Mr. Cattanach emphasized that AGC would strongly
support any code that would reduce the cost of construction,
whatever the code. He related that the AGC feels that there are
many positives with the IBC.
MR. CATTANACH turned to the [notion] of the consolidation of the
building and construction codes. "We should make, in this
state, a concerted effort to try to consolidate some of this and
come up with a process that's going to make a lot more sense for
dealing with the building and construction codes," he said.
With regard to the issue of training, Mr. Cattanach related that
it's a serious concern for everyone. The current situation
under which trades people have to be trained under both codes is
difficult. Furthermore, there really isn't a training program
to deal with the International Code. At this point, Mr.
Cattanach indicated that when the questions [outlined in his
letter] are answered perhaps a resolution will result. He
expressed the need for the rhetoric from both sides to be toned
down in order to find a resolution that's in the best interest
of the state, and the AGC is happy to work with others to do so.
REPRESENTATIVE ROKEBERG related his understanding that Mr.
Cattanach agreed with a consolidated port authority for the
state.
MR. CATTANACH confirmed his agreement with a consolidated port
authority for the state. He agreed with Representative Rokeberg
that the current situation in which there are eight separate
departments that are involved with the building codes is
confusing.
Number 2232
REPRESENTATIVE ROKEBERG expressed the need for the legislature
to maintain the ability to adopt a specific code, but not the
code cycles. Then the authority needs to remain within one
agency in order to do so. He asked if Mr. Cattanach agreed with
that concept.
MR. CATTANACH said, "I don't know that the legislature wants to
be in the position of adopting a code." He indicated the need
to rely on the people in the administration.
REPRESENTATIVE ROKEBERG interjected that such was the situation
with the Department of Public Safety (DPS).
MR. CATTANACH acknowledged that. Although he agreed that this
issue must be reviewed, he didn't believe that the legislature
wanted to be involved in adopting the code and determining which
code is appropriate. The legislature will have to look to those
actually doing the construction.
REPRESENTATIVE ROKEBERG recalled Representative McGuire's
testimony with regard to the separation of powers issue.
Number 2287
JONATHAN STEELE, Architect, testified via teleconference. Mr.
Steele informed the committee that he has been working in this
profession in Alaska since 1979. [Since 1979] Mr. Steele has
dealt with six editions to the codes, which is part of his
continuing education as a designer. He acknowledged the
importance of training and expressed his belief that the onus is
on those in the design and trade professions to be updating
themselves with training and new codes as they are adopted.
Having said that Mr. Steele pointed out that the International
Codes represent a long term effort over the last ten years. The
International Codes is based on a goal of consolidation of
differing codes in the United States, which the 2000 edition of
the International Codes illustrates. Mr. Steele announced his
support of the International Codes, which he believes to be a
coordinated code. Without the International Codes, there is no
building code for Alaska, he noted.
TAPE 02-35, SIDE B
MR. STEELE mentioned that he participated in the adoption of the
International Codes, specifically the International Fire Code.
The process has been public and involved trades people,
designers, code consultants, various code [organizations], and
individuals. The process has reached the point at which the
public hearing and testimony has come before the [MOA] building
board and is awaiting deliberation by the assembly. The
decision of the state to adopt the International Code will be
pivotal [in the assembly's deliberation]. In summary, there is
a process in which there was input and to date the output of the
process has been supportive of the International Codes.
Therefore, Mr. Steele urged the committee to stay with the
adoption of the International Codes.
Number 2337
REPRESENTATIVE ROKEBERG inquired as to how long the Anchorage
code review process has been ongoing for this cycle.
MR. STEELE estimated that for the 2001 codes the ongoing
meetings have been occurring for a good portion of 2001. He
explained that the process has been to assemble the documents,
the formation of the committees, and ongoing regular meetings
during which the committees discuss suggestions. Each committee
reached a vote on final amendments, which, once adopted, were
presented to the building board. There was a public hearing
process at the building board level. The building board
supported the amended International Code, which is now waiting
to begin the municipal assembly public hearing process and
adoption.
Number 2279
JOHN McCOOL, Architect, testified via teleconference. He
informed the committee that he has been a practicing architect
in Alaska for over 25 years. He stressed the need for a single,
coordinated family of building codes. Therefore, he said that
HB 399, HB 436, and HB 437 shouldn't be passed with reference to
proprietary codes. Mr. McCool pointed out that IAPMO and ANSI
are pieces of a code that don't receive input from [DPS] and
haven't been coordinated with the IBC. The "Uniform Building
Code" ceased in 1997 when it was published. Mr. McCool
explained that about 20 years ago building codes became more
complex and thus the development of associated codes that
coordinated with a basic building code began. The UBC published
under the ICBO started the name [Uniform Building Code]. This
building code includes references to ANSI and the American
Society for Testing Materials (ASTM). Every three years, these
model codes went through a cycle in which the fire, plumbing,
and mechanical code coordinated by cross referencing the
building code. This was referred to as the UBC or family of
codes. For example, when determining the type of ventilation
required in a boiler room, the building code drives the
requirement and the mechanical and fire codes cross reference
that requirement. In 1997 when the last building code, the UBC,
was published, the ICBO group that formerly published the UBC
started the IBC, which is a family of codes and uses the same
terms and formats as the UBC. However, IAPMO is publishing the
UMC and UPC, which don't have the input and coordination with
the model code groups. In summary, Mr. McCool expressed the
need to place the code in a single place whether by statute or
regulation and have the regulations for architects, plumbers,
and mechanical administrators in another place that refers to a
single code.
Number 2140
PAT KROCHINA, Architect, Krochina Architects, testified via
teleconference. He informed the committee that he has been
practicing in Anchorage since 1977. He noted that he has been
involved with the code since 1982, and during that time he has
represented the American Institute of Architects (AIA). The
[AIA's] goal has been to develop a consolidated code book and a
more simplified process [for construction]. He said
consolidating the codes is quite the process because it becomes
a turf war between the various entities. Mr. Krochina explained
that in 1992 the ICBO decided to consolidate with the three
major code groups in the country. With that consolidation the
additional [codes], such as the fire code, the mechanical code,
et cetera, were brought in. Although the UMC decided to pull
out of that process in 1994, the [consolidation efforts]
continued. Therefore, [the International Codes] aren't new.
Furthermore, Mr. Krochina said that he has volunteered his time
and every committee he has been involved with has been open to
[hearing from all interested parties] such as the trades,
architects and engineers, the construction industry, the
building industry, vendors, building officials, et cetera. Mr.
Krochina highlighted that this code has been worked on for over
three years with numerous public hearings. There have been ten
code review committees that have [met] for 2,500 hours. Mr.
Krochina stressed that this process has been an open and fair
process.
Number 1980
RON WATTS, Alaska Professional Design Council, testified via
teleconference. The council is made up of 10 professional
organizations with approximately 1,500 members. He noted he has
30 years of experience in the code and building process at the
local, state, and national level. Mr. Watts provided the
following testimony:
Now out of all this controversy we're hearing over the
mechanical code, there is a win-win situation. As far
as we're concerned, if the legislature just went back
and took the proprietary language out of these bills -
in fact it should be done out of all statutes - and go
to the functional code descriptions, we would not be
in the predicament that we're in today. And if we
continue down this road we're going to be back next
year and the following year and the year after.
MR. WATTS turned to the legislation before the committee. He
predicted that these pieces of legislation will merely compound
the code adoption process and the problems it involves. "We
don't feel that this is the best solution to try to resolve this
mechanical code issue or the other code issues that this is
going to consist of or entail," he said. Mr. Watts echoed
earlier testimony with regard to how the Uniform Code was
specified in statute. He specified that there were 15 different
uniform codes that were used in the Western United States and
Alaska. Consequently, the general reference to the Uniform Code
was placed in statute as a matter of course. He said he didn't
believe it was the intent of the legislature to [refer to the
"Uniform Code"] in order to eliminate the consideration of any
other code. Furthermore, there are basically only three
remnants of the Uniform Code. The simple solution to HB 399 is
to return to the general code reference language.
MR. WATTS focused on HB 436 and pointed out that it includes a
subtle requirement that state and local jurisdictions can only
adopt by special ANSI consensus standard process. However, for
over 50 years the Uniform Codes were all [adopted] by the
governmental consensus process. House Bill 436 would exclude
all other approved codes and/or nationally recognized codes
other than those adopted by the ANSI process. Mr. Watts said
that there are many similarities between the ANSI process and
the governmental consensus process until the final vote is
taken. For ANSI, the final vote is taken from the general
membership and anyone can become a member and vote. He informed
the committee that there is an appeal occurring now with regard
to standards "1710 and 1720" because those supporting the
aforementioned standards bused in folks to support their
position. However, under the governmental consensus process the
final vote is taken from the local jurisdictions that have no
vested interest in the outcome. Mr. Watts remarked that HB 437
is basically a reiteration of HB 436. He pointed out that HB
437 contains a paragraph that specifies that a generic building
code could be adopted. If the building code can be adopted
generically, then why can't it be done throughout all the codes,
he questioned.
Number 1767
REPRESENTATIVE ROKEBERG asked whether Mr. Watts believes that
the state should have a consistent uniform code.
MR. WATTS echoed earlier testimony regarding the effort to
consolidate the codes that fell through due to turf issues. He
indicated agreement with the need for consolidation with an
umbrella organization under which all the local jurisdictions
would fall. Mr. Watts opined that all references to the
International Code and the Uniform Code, the IAPMO, the ICBO,
and the ICC should be eliminated. However, he related his
belief that there should be a nationally recognized building,
plumbing, and electrical codes.
REPRESENTATIVE ROKEBERG expressed concern that if there isn't a
stipulated code or if the state defers to an agency to select
the code, there [won't] be conformity throughout the state. He
asked if Mr. Watts agreed with a standard building code
throughout the state.
MR. WATTS replied yes. Having these pieces of legislation
illustrates the problem within the state departments, that is
the fragmentation with departments adopting different codes or
portions of a code.
Number 1627
ROBERT BUCH, Member, UA Local 367, testified via teleconference.
He informed the committee that he has over 20 years of
construction and building heating ventilating and air
conditioning experience. He also informed the committee that he
is also a certified plumber in the State of Alaska and the MOA.
Mr. Buch provided the following testimony:
In looking into what has occurred regarding the code
accepting discussions we find: Number one, that some
of a body of codes has been accepted by a portion of
the state regulatory agency. And two, the adoption is
incomplete [and] has caused confusion and possible
liability. If we are to undertake significant code
adoption, then all involved should have access through
due process. Up until recently, the agenda to promote
these changes has not been conducted to convention.
Use shifts involving the standards for building
construction in the State of Alaska require careful
consideration by all concerned with public processes,
not by one-sided committees with an established
agenda. I witnessed one example at the building
board's meeting October 18th last year in Anchorage
where unanimous support for the Uniform Mechanical
Code was ignored and the other code was promoted.
What good did it do to have a committee? Currently,
the Municipality of Anchorage has at least seven major
construction projects finished or near completion ...
using the International Codes as design basis. This
means implementation of these codes took place prior
to acceptance through regulations, which implies a
liability as discussed in a letter from the Associated
General Contractors of Alaska .... On page 2 [of the
AGC letter], he asks: "What happens to buildings
constructed under a code illegally accepted? Who is
responsible for retrofitting such buildings to make
them code compliant? Because of the implementation of
this code, does the legal liability accrue to innocent
parties involved in the construction process?" ...
There's some 500 businesses in the State of Alaska
that ... are involved with the construction industry.
This is not a union-nonunion issue, this is an
industry issue. We're concerned with the health and
safety issues. And I'd also like to refer you to a
comparison between 2000 Uniform Code and the 2000
International [Code] .... On page 4 it states in
conclusion, "As indicated above there are several
major differences between the 2000 UMC and the 2000
IMC. Those code users currently using the 1997 UMC
... will find it a relatively smooth transition to the
2000 UMC in comparison to adopting the IMC. It is
clear from comparing the size of the two books that
the UMC [2000] is significantly more prescriptive in
its approach, a philosophy that has been utilized in
the development of the Uniform codes. This philosophy
is evident in the fact that the 2000 UMC reproduces
important standards in the code for ease of use while
the IMC only references them. Jurisdictions
considering adoption of one or the other document need
to examine these differences and consider their impact
on the health and safety of the communities that they
serve." The requirements of references alone become
expensive and excessive in number. Now, I think it's
rather presumptive to say that these codes are going
to be adopted. They're only adopted in 15 states
nationwide. And the International Code is not
international, it's only accepted in the United
States. Whereas the other code is an actual
international code. Thank you for your time.
Number 1424
REPRESENTATIVE HALCRO said he understood Mr. Buch's testimony to
be that only 15 states have adopted the International Codes.
MR. BUCH replied yes.
REPRESENTATIVE HALCRO pointed out that he has a document dated
January 17, 2002, that specifies that 37 states have adopted the
IMC and 21 of those states have adopted five or more of the
books. Representative Halcro surmised that [a state] doesn't
have to adopt all eight books of the International Code. He
asked if that is correct.
MR. BUCH explained that it would depend upon the agencies in the
state. He pointed out that the other states also [must take]
into consideration municipal areas as well.
Number 1368
JIM FERGUSSON testified via teleconference. He noted that he
has over 30 years of experience in the industry. Mr. Fergusson
characterized the situation in which a code is adopted and then
found to be illegal as a train wreck. He highlighted what
happened with asbestos in this country. Mr. Fergusson expressed
the need to look into the future with regard to solving this
problem. Therefore, he recommended that the legislature adopt
both codes for one year [to be used] at the designer's
discretion. Such a situation would determine whether the State
Fire Marshal's actions were legal or illegal. Furthermore, it
would provide the industry with the time to review the code and
answer the questions. Mr. Fergusson recalled an earlier
question with regard to whether the legislature or the industry
should study the code. After listening to everyone, Mr.
Fergusson said he didn't believe that the legislature is
knowledgeable enough to answer the question nor does the
legislature have the time. Therefore, he recommended that the
legislature combine all eight departments in order that the one
combined entity would handle the code. "Let the professionals
figure out which code to adopt," he suggested.
Number 1193
HENRY KIM, HDK Company, testified via teleconference in support
of the International Codes. The International Codes were
developed in order to consolidate three national code bodies.
That consolidation resulted in a simple, model building code
that encompasses building, mechanical, and fire [codes]. These
codes are complimentary and present some new technology and
opportunities to use engineering methods to solve installation
problems rather than a prescriptive installation matrix. In
regard to the impact of switching to a new mechanical code, Mr.
Kim related his belief that learning the nuances of a new code
is part of professional development and continuing education.
During his more than 27 years experience with the codes, Mr. Kim
said that he regularly has to spend a considerable amount of his
time training with regard to new code editions that occur every
three years. "To me, it's kind of inconceivable that we could
have a consolidated set of building codes and then have one
offshoot where the mechanical portion does not mesh at all with
the other editions that have been published," he said. Mr. Kim
expressed his disappointment at being present today because he
felt that the process was proper. "We're passing up an
opportunity to embrace a set of codes that do function well
together and present the design team with the opportunity to
have a consolidated design effort and use the best technology
that's available," he remarked.
Number 1044
JOE GELDHOF, Mechanical Contractors of Alaska, first addressed
CSHB 399, Version C, which basically deals with the
legislature's law-making power. Mr. Geldhof stressed the need
for the legislature to protect its law-making powers under the
Alaska Constitution. The CS for HB 436 attempts to take a
longer range view and adopts the ANSI standards, which he
characterized as purely procedural. He said it's a policy call
for the legislature. Furthermore, the rhetoric that no code
will be able to adopt [the ANSI standards] isn't true given the
effective date. Mr. Geldhof remarked that it's worth the
committee's consideration to adopt the ANSI procedural adoption
standards, which basically call for fairness, openness, and
participation by everyone. Mr. Geldhof turned to CSHB 437,
which attempts to craft a solution such that the status quo is
maintained with respect to the mechanical code. The practical
reality is that everyone in the trade is putting things in
according the UMC and that will continue even if the decision is
to go to the IMC now. Therefore, [CS]HB 437 would basically
absolve MOA's [potential liability] problem due to its use of a
code that wasn't adopted by ordinance or acceptable according to
statute. In conclusion, Mr. Geldhof urged the committee to pass
CSHB 399, consider moving out CSHB 437, and consider CSHB 436 as
a long-range solution.
Number 0780
CHAIR MURKOWSKI asked whether the problem would get better or
become more complicated if this issue was put on hold for a
while.
MR. GELDHOF said that not dealing with the issue will result in
difficulties. He said that the better solution is to pass CSHB
437 and study [the issue]. If a year or two is taken to answer
all the questions brought by Mr. Cattanach, everyone will be
better served. The "do nothing" option is unpleasant. Mr.
Geldhof suggested that passage of CSHB 399 would result in those
in the administration reviewing the situation and perhaps
reconciling the differences between the statutes for AHFC, the
State Fire Marshal, and the Division of Occupational Licensing.
Number 0631
REPRESENTATIVE HALCRO asked what happens to those buildings
constructed under a code that was illegally adopted.
MR. GELDHOF began by saying that he wasn't sure he would
characterize the situation as one in which the code was
illegally adopted. Mr. Geldhof related his belief that MOA
didn't have ordinance authority allowing for the IMC and there
certainly wasn't any state provision. He said he believes that
people were using the International Code prior to regulatory or
statutory authorization, which was a concern for some.
Therefore, he suggested that any project started under [the
International Code] is acceptable, but starting this summer the
UMC will be used [until] its sunset in two years [during which a
solution could be developed]. He characterized such action as
providing comfort and perhaps making the builders and
municipality "bullet proof."
Number 0491
REPRESENTATIVE ROKEBERG related his understanding that MOA is
waiting for the assembly to adopt the latest recommendations
from the building board with regard to the new cycle.
Therefore, he surmised that there should've been no building in
the Anchorage area [under the International Codes].
MR. GELDHOF clarified that he understood that for large projects
there was a custom arrangement [allowing use of the
International Code] because the design professionals liked it.
He related his understood that the State Fire Marshal has to
sign-off on these projects. He informed the committee that some
have argued that such situations occurred up until September
15th without the proper authority. Therefore, MOA's mayor has
expressed the need to resolve the situation, which gave rise to
CSHB 437.
Number 0301
MR. WATTS indicated agreement that MOA has approved projects
under the International Code prior to the assembly's adoption.
Mr. Watts explained that with the assistance of the
architectural, engineering, and construction community approving
projects with an alternate means of design and construction is
permissible under the codes.
REPRESENTATIVE ROKEBERG inquired as to whether there is a
question about the legal ability to do the aforementioned under
the existing codes.
MR. WATTS said that it's a provision under the existing adopted
codes.
MR. GELDHOF reiterated the need for the legislature to protect
its law-making powers by acting on CSHB 399 as well as consider
the merits of HB 437.
Number 0059
WILLIAM RUSSELL, President, Local ICBO Chapter, testified via
teleconference. Mr. Russell said that the Uniform Codes are
good codes. To say that the International Codes are any less
safe is an incorrect statement, he said. With regard to the
ANSI standards, Mr. Russell said it would, in a sense, create a
proprietary code with which he disagrees.
TAPE 02-36, SIDE A
MR. RUSSELL said that voting in the ANSI process has created
problems. Furthermore, no current code meets the ANSI process.
Mr. Russell informed the committee that local amendments, which
address specific concerns in local jurisdictions, are commonly
done for the Uniform Codes and that will continue with the
International Codes. The residential code seems to be the
largest area of concern. He related that the International
Residential Code (IRC) is designed to be a very prescriptive and
all-encompassing document. He said he feels that the IRC would
address the concerns brought forth by the industry. In response
to Representative Rokeberg, Mr. Russell confirmed that there is
an International Building Code and an International Residential
Building Code. He explained that his testimony illustrates that
within the family of International Codes, there are documents
that could address specific concerns. In further response to
Representative Rokeberg, Mr. Russell confirmed that before the
International Codes came on the scene there was just the UBC
that related to residential construction.
Number 0231
STEVE SHUTTLEWORTH, Building Official, City of Fairbanks,
testified via teleconference. Mr. Shuttleworth noted that the
committee should have copies of a letter dated February 27,
2002, from Mayor Thompson as well as city resolution 3753. Mr.
Shuttleworth turned to CSHB 399 and related his understanding
that the primary issue of [Version C] is the separation of power
between the administrative and legislative branches of
government. "It is not our intent to engage in that debate,
other than to state for the record that we're opposed to
proprietary reference to any construction code," he explained.
He reminded the committee that in 1998 the entire construction
community, including industry, contractors, politicians, as well
as MCA proposed biased language to SB 269. That language
included the following: "or other nationally recognized codes".
The bill was passed with that language and thus [it seemed] that
legislative intent was established. In October 2000, the City
of Fairbanks Code Review Commission reviewed the various
construction codes. The city adopted the International Fire
Code (IFC) and the IRC and within the next few weeks the city
will be adopting the 2000 IBC and the 2000 UPC, which
illustrates that the City of Fairbanks wants to offer the
construction and design community choices.
MR. SHUTTLEWORTH turned to HB 436. Although this bill doesn't
seem to be confrontational on the surface, Mr. Shuttleworth said
that it's the most contentious of the three before the
committee. Therefore, Mr. Shuttleworth opposed HB 436. The
governmental consensus process for adoption of codes has been
used since statehood and is the same process that this
legislature uses. The governmental consensus process involves
input from industry, the professional design community,
contractors, and code officials. However, only code officials
are allowed to vote in the final vote. These code officials
don't have a vested financial interest [in the outcome]. On the
other hand, the ANSI consensus process allows industry and
special interests to be included in the final vote, which he
viewed as suspect and ensures that the financial vested interest
of special interests works for the corporate good. If industry
is allowed to have the final vote, codes can be adopted purely
on economic votes. Therefore, issues such as restraint of trade
will cause restrictions of methods and materials to be common.
Mr. Shuttleworth pointed out that no state has statutory
language that requires ANSI accreditation, and for good reason,
he said.
MR. SHUTTLEWORTH addressed HB 437. He acknowledged that HB 437
has undergone some language changes. Mr. Shuttleworth announced
that [the City of Fairbanks] isn't opposed to having additional
time in which the codes may be professionally reviewed or
debated nor is [the city] opposed to a sunset clause. In
conclusion, Mr. Shuttleworth informed the committee that the
City of Fairbanks opposes any legislation that establishes
proprietary code language or any companion language that
requires ANSI accreditation.
Number 0585
MR. SHUTTLEWORTH, in response to Representative Rokeberg,
clarified that the City of Fairbanks has formally adopted the
IFC, IRC, and will be adopting the IBC and the UPC in two to
three weeks. After the IBC and UPC are [formally] adopted the
city will be taking up the mechanical code.
REPRESENTATIVE ROKEBERG asked if [the City of Fairbanks] has
approved any projects or designs that have incorporated the IBC
prior to its adoption by the local council.
MR. SHUTTLEWORTH replied yes and noted agreement with Mr. Watts'
earlier comments on this matter. In fact, the City of Fairbanks
Police Department building was built under the IBC.
Number 0716
REPRESENTATIVE HAYES inquired as to why the City of Fairbanks
chose to go with the UPC and some of the International Codes.
MR. SHUTTLEWORTH answered that both codes, the IPC and the UPC,
were put on the table and the UPC was adopted after MCA lobbied
and convinced the local code review commission to support the
UPC. The City of Fairbanks made some amendments and moved
forward. He expressed the need to adopt the best code for a
particular community. He echoed earlier testimony regarding the
fragmentation and need for consolidation [of the codes].
REPRESENTATIVE ROKEBERG asked if the City of Fairbanks could
adopt the IPC and have a local amendment for the heat exchanger
situation.
MR. SHUTTLEWORTH replied yes.
Number 0840
CHRIS MILLER, Design Alaska, testified via teleconference. He
informed the committee that he is a mechanical engineer who
works with the codes every day. Mr. Miller mentioned that he
doesn't have these codes committed to memory, and never has.
The 2000 codes have been in effect for a over a year. Several
construction projects are underway under these codes. There are
some advantages to them, although it was a difficult process to
learn the codes. [Indisc.] Mr. Miller mentioned that three
large buildings are under construction under [the International
Codes] and it seems to work well. He also agreed with earlier
remarks regarding the need for clarity and consistency in this
process. Mr. Miller pointed out that having to continually
search through the regulations and the statute for the current
code is difficult, time-consuming, and awkward. Therefore, he
urged the legislature to deal with this issue.
Number 1040
REPRESENTATIVE HAYES inquired as to how the decision was made to
switch codes. He related his understanding that the plumbers
didn't have a lot of input in [the decision].
GARY POWELL, Director State Fire Marshal, Division of Fire
Prevention, Department of Public Safety, explained that the
decision for the building code was driven by the fact that other
than the 2000 IBC there wasn't a building code offered after the
1997 UBC. Therefore, the next logical decision was with regard
to the fire code. The fire chiefs met and they were split
between the UFC and the IFC. After the review of the content of
the codes and the training sessions, it became apparent that the
IFC was a better fit with the IBC. Therefore, it was decided
that the [IBC] would be used as the base document. The only
other code that the [division] has traditionally adopted is the
mechanical code and thus the UMC was used as the model code for
the base document. Meetings were held in Juneau, Fairbanks,
Anchorage, and Soldotna. Those meetings had a cross-section of
all the impacted stakeholders. Although there was confusion
with regard to who was really representing the mechanical
industry, the sign-up sheets listed folks who appeared to
represent the mechanical interest. Once the base documents were
created, those were mailed to Linda Winters who [the division
had listed as the mechanical industry's representative]. There
was a comment period and changes were made throughout that
process. Due to a typographical error on a public comment
notice, two comment periods were held. Between the two comment
periods, 700 individual copies were mailed to the addresses on
record for all the mechanical administrators in the state.
REPRESENTATIVE HAYES related that it would seem appropriate to
bring in all those adversely effected before making a decision
on which code to choose. Such a discussion would seem
appropriate before the comment period even occurred and perhaps
this acrimony could've been avoided.
MR. POWELL said he agreed in part. However, he highlighted that
the [division] held meetings with those it viewed as the
stakeholders. These meetings were held before the decision was
made. He reiterated that the only building code available was
the IBC, which started this entire process. Mr. Powell said
that once the cross-referencing in the IMC to the IBC and the
IFC [was apparent], it was difficult not to offer that as the
base document for comment.
Number 1280
REPRESENTATIVE CRAWFORD related his understanding that under the
new codes, larger buildings without sprinklers can be built.
Furthermore, the new codes allow buildings to be built with less
fire doors and fire stops.
MR. POWELL said that such an umbrella statement probably isn't
true. Although there are cases in which larger building can be
built, in most cases those require other means of life and
safety protection such as fire sprinklers. He pointed out that
as the codes developed over the years, one safety provision was
piled on top of another and thus the question became [which
safety provisions were necessary]. Mr. Powell said, "In some
cases it appeared to be a relaxing of the standards, but on the
other hand there was no hard justification for keeping the
stringent requirements in place."
REPRESENTATIVE ROKEBERG related his understanding that these
regulations went into effect September 15, 2001. He inquired as
to when [DPS] received the approximately $100,000 appropriation
from the legislature.
MR. POWELL confirmed that the regulations went into effect
September 15, 2001. He recalled that the $100,000 appropriation
would have been part of the 2001 budget for the purpose of the
adoption of the International Code. He agreed with
Representative Rokeberg that in July 2000 [DPS] had the money.
With that money, an independent code consultant was hired to
take [the department] through the adoption process. The
$100,000 appropriation was for the entire project. In further
response to the Representative Rokeberg, Mr. Powell confirmed
that the request for the appropriation was made to the House
Finance Committee.
REPRESENTATIVE ROKEBERG asked if any of the money was
[earmarked] for transitioning, especially for the training.
MR. POWELL clarified that the code was adopted June 15, 2001,
with an effective date of September 15, 2001. In discussing
this issue with the Division of Occupational Licensing, [the
effective date] seemed to coincide well because of the two years
transition and training time that would be allowed for
mechanical administrators who had two years before renewal [was
required].
REPRESENTATIVE ROKEBERG inquired as to the impact this had on
new candidates.
MR. POWELL indicated that he didn't know of the impact to new
candidates. With regard to testing, Mr. Powell pointed that it
was going to cost $16,000 to change from the 1997 Uniform Code
to the 2000 International Code, which was part of the $100,000
appropriation. However, to change from the 1997 Uniform Code to
the 2000 Uniform Code would cost $40,000. He questioned why it
would be more costly to change within the same family of codes.
"I think the obvious answer is: It's not the same family," he
said.
Number 1578
DEAN GUANELI, Chief Assistant Attorney General, Legal Services
Section-Juneau, Criminal Division, Department of Law, began by
explaining that in general a state agency doesn't have any
obligation to engage in any process before placing regulations
out for public comment. The process that the public has is the
regulation process under the Administrative Procedures Act. In
this case, DPS understood that this [potential code change] was
important and thus requested funding from the legislature and
had a process before the regular regulation adoption process.
The DPS sent letters out to a number of statewide organizations
inviting those organizations to meet with DPS in work sessions
in order to discuss these codes. Mr. Guaneli reviewed some of
the organizations that received the aforementioned letter from
DPS. Day-long sessions held in Juneau, Anchorage, Fairbanks,
and Soldotna. This occurred before DPS decided what the codes
should be and any changes that should be made. He explained
that whenever DPS adopts a code, it has to adopt certain changes
in order to make the code fit the needs of Alaska. In this
particular situation, after meeting with these organizations,
DPS developed a list of changes to the codes that amounted to 76
single-spaced pages. Such changes have to be done regardless of
what code is adopted. Once DPS decided what codes it wanted to
adopt, the public notice process for administrative regulations
began. There was a typographical error in one of the notices,
and therefore the department did the public notice process again
and the public comment period was extended by several months.
After meeting with ARR in the summer of 2001, DPS decided to
delay implementation for another two months.
MR. GUANELI said that he couldn't tell the committee which code
is the better code. He submitted to the committee that
regardless of which code is chosen, the same process [with
regard to changes to the code] will occur. Mr. Guaneli recalled
that many have recommended leaving this issue to the experts,
which has been the legislature's policy choice over the years.
The legislature has allowed DPS to make the choice without being
constrained to one family of codes. He noted his agreement with
that approach. Although there has been testimony that this was
a rushed process, Mr. Guaneli didn't believe that to be true.
Furthermore, some have charged that [the IMC was wanted] by a
handful of bureaucrats, which he didn't believe that to be the
case either. With regard to the testimony that the
[International Codes] are difficult to teach, Mr. Guaneli
informed the committee that Ms. Reardon had related that the
first time the IMC was tested, a higher percentage of people
passed the test than the last couple of tests under the UMC.
Although there has been [testimony] that people aren't
accustomed to the new codes, at least in Anchorage it seems that
the design professionals have been using the concepts embodied
in the (IMC) for quite a while.
Number 1908
MR. GUANELI turned to HB 437 and related his understanding that
the legislation would replace the IMC with the UMC. Because the
Uniform Codes don't have any corresponding building and fire
codes, he suggested that it would require a considerable amount
of conforming amendments. Therefore, he said he didn't believe
that HB 437 makes sense. With regard to HB 436, Mr. Guaneli
felt it best to leave the [code adoption] to the professionals
in the field.
MR. GUANELI addressed the Division of Occupational Licensing's
situation. He acknowledged that the division's definitional
provisions in statute reference the Uniform Codes. Therefore,
the question is whether the division is going to test on what
actually has to be applied in the field or is the division going
to test on an outdated [code] that isn't in the law. The
Department of Law advised the Division of Occupational Licensing
to test on what people actually have to apply in the field.
From a legal standpoint, if the testing were on a code that
wasn't applied in the field and someone failed the test, that
individual would probably have a good lawsuit against the state.
He said that he would hate to have to defend the state in such a
lawsuit. The division followed the Department of Law's advice.
During the ARR hearings, there was testimony that there was
confusion with regard to which code the test would be based.
Therefore, the Department of Law further recommended that the
Division of Occupational Licensing adopt regulations that
clarify that when there is reference to the UMC, it means any
mechanical code adopted by DPS and applied in the field. The
division followed that advice as well. Therefore, HB 399
doesn't make a lot of sense. Mr. Guaneli suggested that the
statutes should be "code neutral" and left to the professionals.
Specific problems should be addressed in the regulatory process,
and to the extent those aren't, those problems can be addressed
in the legislature rather than dealing with a thousand or so
pages of codes and hundreds of pages of amendments to those
codes.
Number 2083
REPRESENTATIVE HAYES turned to Mr. Guaneli's advice to leave
this issue to the experts and pointed out that the list [of
experts] that DPS contacted didn't include the plumbers who
implement the code. He questioned how the plumbers could be
left out of the process. He said if all the players had been at
the table originally, then this problem wouldn't have developed.
MR. GUANELI replied, "I'm not sure that I can really disagree
with you about if there were other people who need to be at the
table, and perhaps it could've been done differently." However,
the process DPS followed was far more extensive than the usual
process. With regard to comments from plumbers and union
members about [concerns] with purchasing new books and
unfamiliarity with the new code, Mr. Guaneli wasn't certain that
those [concerns would've been allayed] had those groups been at
the table. Although Mr. Guaneli agreed that DPS could've been
more inclusive in the process leading up to the normal public
process, he wasn't convinced it wouldn't have led to the same
situation.
REPRESENTATIVE ROKEBERG, with regard to Mr. Guaneli's suggestion
to [make the statutes] code neutral, asked if such action would
actually grant a significant amount of the legislature's power
to the bureaucracy.
MR. GUANELI said he thinks that has been the policy choice of
the legislature for a number of years. Currently, there are no
restrictions on DPS's authority to adopt regulations. He
highlighted that he hasn't heard anyone suggest that DPS has
abused that authority, other than the current complaints. Mr.
Guaneli said he wasn't sure that every three years the
legislature wants to go through the prospect of a 150-page bill
versus relying on the experts in the field.
REPRESENTATIVE ROKEBERG highlighted that it's been the policy of
this committee to make "half that step" by statutorily placing
the code outside the legislature and letting the departments
adopt the various editions on a cyclical basis. However, there
has always been the stipulation with regard to the code that was
adopted, save DPS. He stressed that DPS's code-neutral language
caused this problem in the first place and thus he wasn't sure
why there would be the suggestion to go the route of code-
neutral language.
Number 2257
REPRESENTATIVE HALCRO asked if the lawsuit brought by the Alaska
Mechanical Contractors is still in progress.
MR. GUANELI replied yes. He informed the committee that there
was a motion for a preliminary injunction, which was denied.
Both parties have filed motions for summary judgment, which
means that no facts are in dispute and thus it's a purely legal
matter. The judge has scheduled a hearing for May 9th.
REPRESENTATIVE HALCRO asked if the Department of Law is worried
that if the legislature passes HB 399 it might weaken the
department's case.
MR. GUANELI said he wasn't sure that passage of HB 399 would
weaken the department's case as much as make the case, at least
a portion of it, moot. Although Mr. Guaneli recommended against
clarifying the law [with HB 399], he said that when the
legislature does clarify the law it's fine.
REPRESENTATIVE HALCRO inquired as to whether Mr. Guaneli felt
that there is any merit to the charge that DPS usurped the
legislature's authority by implementing these regulations.
MR. GUANELI replied no. He added that the judge who decided the
preliminary injunction motion included in her decision
[indications] that there is no merit to the aforementioned
charge. Therefore, Mr. Guaneli said he was confident that the
state will prevail.
CHAIR MURKOWSKI recalled that the sponsor [of HB 399] has
expressed to the committee the need to act on this separation of
powers issue. However, Mr. Guaneli has highlighted the
conundrum it creates for the Division of Occupational Licensing
with regard to testing.
TAPE O2-36, SIDE B
CHAIR MURKOWSKI inquired as to the impact if HB 399 were to
pass.
MR. GUANELI explained that passage of HB 399 would mean that the
Division of Occupational Licensing would be prohibited from
testing on the International Code and would be required to
conduct testing based on the UMC. He related his belief that
such action would subject the state to the potential for
litigation by an unsuccessful applicant, that is someone who
didn't pass the test given under the UMC. Such an applicant
would argue that the testing isn't related to what has to be
done in the field. Therefore, Mr. Guaneli expressed concern
that the result of such litigation would be that the court would
order the Division of Occupational Licensing to do something the
legislature didn't want, such as issue licenses without testing
or return to testing under the [IMC]. Although the question
regarding the legislature's authority is one that the
legislature should be sensitive to, the question for attorneys
and judges who review and interpret statutes is related to the
legislature's intent. The Department of Law believes, and
advised the Division of Occupational Licensing, that applicants
should be tested on what they will actually be applying in the
field, he said. Another alternative for the Division of
Occupational Licensing would've been to stop testing altogether,
which the Department of Law didn't view as responsible.
MR. GUANELI, in response to Chair Murkowski, clarified that the
Division of Occupational Licensing adopted a regulation that
says references to the UMC in statute are interpreted by the
division to mean whatever mechanical code DPS has adopted for
application in the state. Therefore, under the current
situation the Division of Occupational Licensing would continue
to test under the IMC. Mr. Guaneli stated his belief that the
legislature could do nothing and things would be fine. He
explained that if nothing were passed, the Division of
Occupational Licensing would continue to test on the law in
existence and DPS and the various inspectors throughout the
state would be inspecting under the International Code.
Although that leaves some ambiguity in the law, in terms of
application of the law and testing business would continue as it
is now. Mr. Guaneli reiterated his recommendation for code-
neutral language in statute, which he viewed as providing more
clarity to everyone.
Number 2179
CATHERINE REARDON, Director, Division of Occupational Licensing,
Department of Community & Economic Development, characterized
passage of HB 399 as her worst-case scenario. She explained
that if the language in the division's regulation that specifies
that the UMC is the code in effect in the state is eliminated,
then the division is left with the message that it was wrong in
passing the IMC. However, there is no indication as to what the
division should be doing. She agreed with Mr. Guaneli that such
would leave the division to wait for a lawsuit. Ms. Reardon
suggested that if the committee feels that the division
shouldn't have adopted the regulation, although it liked the
public policy, then [there should be legislation] that specifies
that the division should test on the code specified by DPS. If
the committee didn't like the public policy and it does believe
that testing should continue on the UMC, then she requested that
there be amendments to the division's statutes so that is clear.
CHAIR MURKOWSKI surmised then that the adoption of the two
committee substitutes [for HB 436 and HB 437] wouldn't help the
Division of Occupational Licensing.
MS. REARDON specified that if only HB 399 is passed, the
division has a problem. If HB 399 is passed with [the
aforementioned additional language], then the division would
have the necessary instruction. Ms. Reardon stressed that the
division has no opinion with regard to which code is
appropriate, the division's involvement merely addresses the
testing and discipline of the mechanical administrators. She
requested that the committee consider whether the desire is to
have the Division of Occupational Licensing's requirement
tightly specify "the Uniform Mechanical Code as published by X
organization." She recalled that there are local [jurisdiction]
adjustments. Therefore, she suggested that the division's
statutes cross reference DPS's code. Ms. Reardon pointed out
that the CS left out one of the Division of Occupational
Licensing's statute references.
Number 2002
REPRESENTATIVE ROKEBERG noted that he had provided the committee
with a marked up version of HB 399, Version A. This marked up
version would delete the specific reference to the UMC as well
as Sections 5 and 6. He explained that this marked up version
would provide a generic reference to the mechanical code that
was adopted by DPS and annuls the regulations adopted by the
Division of Occupational Licensing. Furthermore, this marked up
version solves the constitutional problem by asserting the
legislature's jurisdiction while leaving the code and testing
status quo. Representative Rokeberg related his belief that
this marked up version satisfies the intent of the sponsor of HB
399. In response to Chair Murkowski, Representative Rokeberg
confirmed that his marked up version of HB 399 solves the
testing issue.
MS. REARDON noted that the marked up version of HB 399 does have
the cross referencing that she had previously advocated. For
the record, Ms. Reardon stated her belief that the Division of
Occupational Licensing acted legally in the adoption of the
regulation.
Number 1789
REPRESENTATIVE LESIL McGUIRE, Chair, Joint Committee on
Administrative Regulation Review, Alaska State Legislature,
remarked, "I certainly think that Representative Rokeberg ...
has hit the nail on the head." She indicated her approval of
the language annulling the regulations while attempting to
provide a solution. Representative McGuire commented that she
doesn't take her job lightly. In her year-and-a-half as chair
of the Joint Committee on Administrative Regulation Review, she
recalled situations in which regulations were promulgated that
were "gray" due to the question of the legislature's intent. In
those cases, the department involved is asked to go to a
negotiated rule-making process in which the shareholders are
brought together in order to find a solution or the committee
requests more time during the public comment period. This is
[one of the rare] situations in which the matter is black-and-
white. Therefore, Representative McGuire expressed difficulty
in listening to the prior two witnesses say that there was some
gray area. Representative McGuire said that the statute was
clearly specified a copyrighted document. Furthermore, the IMC
is different from the UMC.
REPRESENTATIVE McGUIRE turned to the speculation as to what the
courts would do and said that such speculation is dangerous. In
conclusion, Representative McGuire stressed that she viewed the
annulment of the regulations as very important. It's the
legislature's job to make public policy decisions, she said.
She acknowledged that perhaps centralizing or neutralizing "it"
will offer some clarity.
Number 1614
CHAIR MURKOWSKI surmised that the original HB 399 isn't too far
from Representative Rokeberg's marked up version.
REPRESENTATIVE McGUIRE said that's fair to say, but remarked
that the only difference is that at the beginning of this she
leaned toward the UMC because of practicality. Those in the
field have expressed concern about their obligation to be
familiar with a code that they didn't know. Representative
McGuire said that she didn't know that those concerns have been
resolved yet. Furthermore, she expressed lingering concerns
that the mechanical contractor community wasn't included. It's
concerning that at the national level there aren't more worker
bees at the table [during discussions] for the IMC. She noted
her preference of a code that's generated by all the
stakeholders. Representative McGuire expressed her frustration
with this matter. She recalled the August 14, 2001, Joint
Committee on Administrative Regulation Review meeting on this
matter during which she clearly asked that [the regulations be
held] until January when the legislature would be in session.
Why that request wasn't respected, she said she didn't know.
Number 1349
REPRESENTATIVE CRAWFORD recalled his trip to Houston, Texas,
last December when two eight-plexes caught fire before his eyes.
Those buildings didn't have fire breaks between the buildings.
Therefore, having codes in place is very important, he stressed.
Representative Crawford related his understanding that the UMC
is the more restrictive code. Even if the International Code
allows cheaper buildings to be built, Representative Crawford
said that he wanted safer buildings. If the UBC is the safer
and more prescriptive of the two codes, Representative Crawford
said that is the code he supported. Representative Crawford
related his understanding that Representative Rokeberg's marked
up version of HB 399 would aggregate the legislature's ability
to specify the Uniform Code or the International Code.
REPRESENTATIVE ROKEBERG interjected that isn't the case.
REPRESENTATIVE CRAWFORD said he was mistaken then. He expressed
the need to make the right decision, which he viewed as going to
the more prescriptive and safer code.
REPRESENTATIVE ROKEBERG clarified that his marked up version of
HB 399 uses code-neutral language, but doesn't determine which
code to use. Representative Rokeberg said, "You have to
separate all the family of codes from what we've been talking
about in terms of the mechanical code." Adopting a building
code is different, he stressed. Representative Rokeberg pointed
out that the same people, the ICBO, who drafted the UBC recently
drafted the IBC. However, there is no building code by IAPMO
and the Uniform [organization]. This situation helped drive DPS
to adopt the [IBC]. Although the ICBO who drafted the IBC has
implemented things to make the code more flexible,
Representative Rokeberg said he doesn't believe it aggregates
the public safety issues. He related that in the [last] 25
years in the United States there hasn't been a death in a
building with fire sprinklers. He recalled his career building
high-rise buildings in Anchorage when every three years the
building code would change and the inside fire protection
mechanisms and rules [would change] even when the buildings had
sprinkler systems and safe layouts. Representative Rokeberg
stressed the need to clean up this mess with the codes by
consolidating the codes and deciding whether to go code neutral
or specify a code. He mentioned that perhaps consideration
should be given with regard to whether there should be a
transitional training period for the testing. "This is the
greatest thing in the world to have a national building code and
some consistency, and that's what the International Codes are
doing for the first time," he stressed. Therefore, he viewed
[the International Codes] as a great step forward, although he
recognized the need to be sensitive to those in the field who
have to change. He said that the power to select the final code
shouldn't be given away to the bureaucracy because it's a public
policy [that the legislature should decide].
CHAIR MURKOWSKI asked if Representative Rokeberg viewed passage
of his marked up version of HB 399 as a band-aid.
REPRESENTATIVE ROKEBERG specified that he believes his marked up
version of HB 399 ratifies the status quo. Therefore, action to
overturn that and return to the UMC would require another piece
of legislation. Representative Rokeberg informed the committee
that two-and-a-half years ago the Senate Finance Committee
agreed [with the adoption of the International Code] because the
BRU [Budget Review Unit] request specified that the
International Code was going to be adopted. Furthermore,
Anchorage has functioned a year-and-a-half [under the
International Code] as has Fairbanks, with the exception of the
UPC. Therefore, Representative Rokeberg said that the
legislature should step forward and make sure that those in the
business are comfortable enough to go forward and learn new
things while recognizing the need to be fair to them with regard
to training.
REPRESENTATIVE MEYER mentioned the possibility of moving [the
marked up version of HB 399] and placing the other two bills in
a subcommittee.
Number 0829
REPRESENTATIVE ROKEBERG mentioned that his marked up version of
HB 399 could be amended to include language allowing the
mechanical administrator to choose which exam to take.
MS. REARDON clarified that those currently holding mechanical
administrator licenses don't have to retest, they merely renew
their license every two years. However, continuing education is
required to renew the license. Therefore, Ms. Reardon
recommended that continuing education be required on the
International Code. The new applicants would have to pass the
test. With regard to the concern that new applicants may have
difficulty passing the International Code test because the
journeymen plumbing experience was performed under the Uniform
Code, Ms. Reardon informed the committee that there is only a
small sample, one test from December. Of the eight people who
took the test in December, only one failed. If there are
similar passage rate results from today's test, Ms. Reardon said
she would say that the passage rate under the International Code
is better than under the Uniform Code. Therefore, there may not
be a need to offer a transition for the test. Ms. Reardon noted
that the same company that provided the Uniform Code test
provided the International Code test, and therefore she assumed
that both were equally difficult.
Number 0653
REPRESENTATIVE ROKEBERG inquired as to the problem with allowing
a new applicant to elect under which code to be tested.
MS. REARDON said she supposed it would be feasible. However,
she questioned why testing on the Uniform Code would be allowed
when, once the applicant passed the code, the applicant would be
required to work with the International Code.
REPRESENTATIVE ROKEBERG said, "Because they spent all this time
learning the Uniform Code and that's what they should be tested
on if they spent several years and thousands of hours learning
that." He indicated that this ability to choose under which
code to be tested could be done during the transitional period.
MS. REARDON commented, "If you think that's good public policy,
I'll do it."
REPRESENTATIVE ROKEBERG highlighted that one of the biggest
complaints was that there wasn't sufficient training and
transition timing.
MS. REARDON recalled that the aforementioned complaint is from
those who already have a license, not from new applicants.
CHAIR MURKOWSKI shared Ms. Reardon's recollection.
MS. REARDON mentioned that this complaint was also expressed by
those who train those in the field.
Number 0509
REPRESENTATIVE ROKEBERG moved that the committee rescind its
action in adopting CSHB 399, Version 22-LS1461\C, Bannister,
2/20/02. There being no objection, before the committee was HB
399.
REPRESENTATIVE ROKEBERG clarified that his marked up version of
HB 399 would delete the word "Uniform" throughout the bill and
delete Sections 5 and 6.
REPRESENTATIVE ROKEBERG moved that the committee adopt the
following conceptual amendment to HB 399, Version 22-LS1461\A:
Page 1, line 11,
Delete "edition of the Uniform"
Page 2, line 13,
Delete "Uniform"
Page 2, line 24,
Delete "edition of the Uniform"
Page 3, line 7,
Delete "Uniform Mechanical"
Number 0375
REPRESENTATIVE KOTT objected and said that this band-aid fix
isn't [appropriate] at this point.
REPRESENTATIVE McGUIRE posed a scenario in which HB 399 is
amended, but fails [to move from committee]. In that scenario,
would the House Labor and Commerce Standing Committee have the
ability to bring up HB 399 [as Version C]. "If this fails, the
public policy part of it, ... I still want to pursue my bill on
the annulment of the regulations," she stated.
CHAIR MURKOWSKI explained that the committee is merely taking up
a conceptual amendment that would remove references to the
Uniform Code.
A roll call vote was taken. Representatives Meyer, Rokeberg,
and Murkowski voted for the adoption of conceptual Amendment 1.
Representatives Kott, Crawford, and Hayes voted against the
adoption of conceptual Amendment 1. Therefore, the amendment
failed by a vote of 3:3.
The committee took an at-ease from 6:33 p.m. to 6:38 p.m.
CHAIR MURKOWSKI announced that more work needs to be done on
this matter, and therefore she appointed a subcommittee to work
with the bill sponsors. The subcommittee consisted of
Representative Rokeberg, Chair, and Representatives Halcro and
Hayes.
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