H-0245.1

HOUSE BILL 1404

ByRepresentatives Goehner, Chapman, Corry, Jacobsen, Griffey, Rude, Couture, Christian, Cheney, Barkis, Stokesbary, and Barnard

AN ACT Relating to reforming the state building code council, its operations and procedures, and its statutory authority; amending RCW 19.27.031, 19.27.070, 19.27.074, and 19.27A.025; adding new sections to chapter 19.27 RCW; and creating a new section.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1. The legislature finds that the state building code council can serve as a partner in addressing our state's housing shortage and the cost of building not just housing, but all buildings. Recent code adoptions by the state building code council have indicated a need to add transparency and consistency to the council's decision-making process. If more diverse perspectives are represented on the council, the impact of proposed council decisions is analyzed more thoroughly and in a timely manner, and the public and industry is given greater opportunities to engage, the state building code council can make greater strides to making building in Washington state affordable and ecologically responsible. The legislature finds that it is necessary to improve the regulatory process. Furthermore, the legislature finds public trust and confidence in the state building code council will be enhanced by eliminating conflicts of interest within the council and providing more legislative oversight of council activities. With some changes to facilitate a public process, collectively the members of the state building code council can create a better building code, firmly based in international code, address escalating housing costs, limited housing availability, and increase housing choices for previously eliminated groups of potential homeowners.

Sec. 2. RCW 19.27.031 and 2018 c 189 s 1 are each amended to read as follows:

Except as otherwise provided in this chapter, there shall be in effect in all counties and cities the state building code which shall consist of the following codes which are hereby adopted by reference:

(1)(a) The International Building Code, published by the International Code Council, Inc.;

(b) The International Residential Code, published by the International Code Council, Inc.;

(2) The International Mechanical Code, published by the International Code Council, Inc., except that the standards for liquefied petroleum gas installations shall be NFPA 58 (Storage and Handling of Liquefied Petroleum Gases) and ANSI Z223.1/NFPA 54 (National Fuel Gas Code);

(3) The International Fire Code, published by the International Code Council, Inc., including those standards of the National Fire Protection Association specifically referenced in the International Fire Code: PROVIDED, That, notwithstanding any wording in this code, participants in religious ceremonies shall not be precluded from carrying handheld candles;

(4) Portions of the International Wildland Urban Interface Code, published by the International Code Council Inc., as set forth in RCW 19.27.560;

(5) ((Except as provided in RCW 19.27.170, the))The Uniform Plumbing Code and Uniform Plumbing Code Standards, published by the International Association of Plumbing and Mechanical Officials: PROVIDED, That any provisions of such code affecting sewers or fuel gas piping are not adopted;

(6) The rules adopted by the council establishing standards for making buildings and facilities accessible to and usable by individuals with disabilities or elderly persons as provided in RCW 70.92.100 through 70.92.160; and

(7) The state's climate zones for building purposes are designated in RCW 19.27A.020(3) and may not be changed through the adoption of a model code or rule.

In case of conflict among the codes enumerated in subsections (1), (2), (3), (4), and (5) of this section, the first named code shall govern over those following.

The codes enumerated in this section shall be adopted by the council as provided in RCW 19.27.074 and sections 6 through 11 of this act. The council shall solicit input from first responders to ensure that firefighter safety issues are addressed during the code adoption process.

The council may issue opinions relating to the codes at the request of a local official charged with the duty to enforce the enumerated codes.

Sec. 3. RCW 19.27.070 and 2018 c 207 s 3 are each amended to read as follows:

There is hereby established in the department of enterprise services a state building code council, to be appointed by the governor.

(1) The state building code council shall consist of ((fifteen))the following members:

(a) Two members must be county elected legislative body members or elected executives;

(b) Two members must be city elected legislative body members or mayors;

(c) One member must be a local government building code enforcement official;

(d) One member must be a local government fire service official;

(e) One member must be a person with a physical disability and shall represent the disability community;

(f) One member, who is not eligible for membership on the council in any other capacity, and who has not previously been nominated or appointed to the council to represent any other group, must represent the general public; and

(g) ((Seven))Eight members must represent the private sector or professional organizations as follows:

(i) One member shall represent general construction, specializing in commercial and industrial building construction;

(ii) One member shall represent general construction, specializing in residential and multifamily building construction;

(iii) One member shall represent the architectural design profession;

(iv) One member shall represent the structural engineering profession;

(v) One member shall represent the mechanical engineering profession;

(vi) One member shall represent the construction building trades;

(vii) One member shall represent manufacturers, installers, or suppliers of building materials and components; and

(viii) One member shall represent an investor-owned utility or consumer-owned utility as defined in RCW 19.405.020. This member should be knowledgeable of a broad range of utility functions and be able to provide credible information about grid capacity, reliability assessments, technical connectivity, and consumer experiences for the industry.

(2) At least six of these ((fifteen)) members shall reside east of the crest of the Cascade mountains.

(3) The council shall include: Two members of the house of representatives appointed by the speaker of the house, one from each caucus; two members of the senate appointed by the president of the senate, one from each caucus; and an employee of the electrical division of the department of labor and industries, as ex officio, nonvoting members with all other privileges and rights of membership.

(4)(a) Terms of office shall be for three years, or for so long as the member remains qualified for the appointment.

(b) The council shall elect a member to serve as chair of the council for one-year terms of office.

(c) Any member who is appointed by virtue of being an elected official or holding public employment shall be removed from the council if he or she ceases being such an elected official or holding such public employment.

(d) Any member who is appointed to represent a specific private sector industry must maintain sufficiently similar private sector employment or circumstances throughout the term of office to remain qualified to represent the specified industry. Retirement or unemployment is not cause for termination. However, if a councilmember appointed to represent a specific private sector industry enters into employment outside of the industry, or outside of the private sector, he or she has been appointed to represent, then he or she must be removed from the council.

(e) Any member who no longer qualifies for appointment under this section may not vote on council actions, but may participate as an ex officio, nonvoting member until a replacement member is appointed. A member must notify the council staff and the governor's office within ((thirty))30 days of the date the member no longer qualifies for appointment under this section. The governor shall appoint a qualified replacement for the member within ((sixty))60 days of notice.

(5) Before making any appointments to the building code council, the governor shall seek nominations from recognized organizations which represent the entities or interests identified in this section. The governor shall select appointees to represent private sector industries from a list of three nominations provided by the trade associations representing the industry((,)) unless no names are put forth by the trade associations.

(6) Members shall not be compensated but shall receive reimbursement for travel expenses in accordance with RCW 43.03.050 and 43.03.060.

(7) Employees of the state building code council, people serving on technical advisory groups, and members of the state building code council must receive training on the rules of procedure used by the council and ethics in public service including, but not limited to, provisions of chapter 42.52 RCW.

(10) For purposes of this section, a "professional organization" includes an entity whose members are engaged in a particular lawful vocation, occupation, or field of activity of a specialized nature, including but not limited to associations, boards, educational institutions, and nonprofit organizations.

Sec. 4. RCW 19.27.074 and 2018 c 207 s 4 are each amended to read as follows:

(1) The state building code council shall:

(a) Adopt and maintain the codes to which reference is made in RCW 19.27.031 in a status which is consistent with the state's interest as set forth in RCW 19.27.020. In maintaining these codes, the council shall regularly review updated versions of the codes referred to in RCW 19.27.031 and other pertinent information and shall amend the codes as deemed appropriate by the council;

(b) Approve or deny all county or city amendments to any code referred to in RCW 19.27.031 to the degree the amendments apply to single-family or multifamily residential buildings;

(c) As required by the legislature and sections 6 through 11 of this act, develop and adopt any codes relating to buildings; and

(d) Approve a proposed budget for the operation of the state building code council to be submitted by the department of enterprise services to the office of financial management pursuant to RCW 43.88.090.

(2) The state building code council may:

(a) Appoint technical advisory committees in accordance with section 8 of this act which may include members of the council;

(b) Approve contracts for services; and

(c) Conduct research into matters relating to any code or codes referred to in RCW 19.27.031 or any related matter.

(3) The department of enterprise services, with the advice and input from the members of the building code council, shall:

(a) Employ permanent and temporary staff and contract for services;

(b) Contract with an independent, third-party entity to perform a Washington energy code baseline economic analysis and economic analysis of code proposals; and

(c) Provide all administrative and information technology services required for the building code council.

(4) Rule-making authority as authorized in this chapter resides within the building code council.

(5)(a) All meetings of the state building code council, its standing committees, and technical advisory groups shall be open to the public under the open public meetings act, chapter 42.30 RCW. All actions of the state building code council which adopt or amend any code of statewide applicability shall be pursuant to the administrative procedure act, chapter 34.05 RCW.

(b) All council decisions relating to the codes enumerated in RCW 19.27.031 shall require approval by at least a majority of the members of the council.

(c) All decisions to adopt or amend codes of statewide application shall be made prior to December 1 of any year and shall not take effect before the end of the regular legislative session in the next year.

Sec. 5. RCW 19.27A.025 and 2019 c 285 s 17 are each amended to read as follows:

(1) The minimum state energy code for new nonresidential buildings shall be the Washington state energy code, 1986 edition, as amended. The state building code council may, by rule adopted pursuant to chapter 34.05 RCW and sections 6 through 11 of this act, amend that code's requirements for new nonresidential buildings provided that:

(a) Such amendments increase the energy efficiency of typical newly constructed nonresidential buildings; and

(b) Any new measures, standards, or requirements adopted must be technically feasible, commercially available, and developed to yield the lowest overall cost to the building owner and occupant while meeting the energy reduction goals established under RCW 19.27A.160.

(2) In considering amendments to the state energy code for nonresidential buildings, the state building code council shall establish and consult with a technical advisory committee in accordance with section 8 of this act including representatives of appropriate state agencies, local governments, general contractors, building owners and managers, design professionals, utilities, and other interested and affected parties.

(3) Decisions to amend the Washington state energy code for new nonresidential buildings shall be made prior to December 15th of any year and shall not take effect before the end of the regular legislative session in the next year. Any disputed provisions within an amendment presented to the legislature shall be approved by the legislature before going into effect. A disputed provision is one which was adopted by the state building code council with less than a two-thirds majority vote. Substantial amendments to the code shall be adopted no more frequently than every three years.

NEW SECTION.  Sec. 6. A new section is added to chapter 19.27 RCW to read as follows:

(1) The state building code council's process to regularly review updated versions of the building codes enumerated in RCW 19.27.031 and the state energy code under RCW 19.27A.020 and adoption of statewide and emergency amendments to those codes shall be done in accordance with this section.

(2) A petition for statewide or emergency amendment must be submitted in compliance with the format required by the state building code council.

(3) The state building code council or the director must remove from consideration any petition for statewide or emergency amendment that:

(a) Does not include all the requested information or does not have sufficient detail to be acted upon as of the deadline established by the building code council for submission of such petitions; or

(b) Requests a rule modification that exceeds the specific delegation of authority provided by the legislature. In performing its duties under this subsection (3)(b), the state building code council may not rely solely on the broad delegation of authority in RCW 19.27.074 or 19.27A.020.

(4) Once a petition for statewide amendment that is submitted as part of the review to update the building codes enumerated in RCW 19.27.031 and the state energy code under RCW 19.27A.020 is accepted as complete, a member of the state building code council must agree to sponsor the amendment in order for the amendment to move forward through the process. A statewide amendment may not be referred to a standing committee or technical advisory group without a councilmember sponsor.

(5) Once a councilmember sponsors a proposed statewide amendment, the proposed text of the rule change must be put in written format consistent with the format required by the office of the code reviser for final rules and RCW 34.05.395.

(6) The state building code council, its standing committees, and technical advisory committees must have a process of consideration that allows people to understand what textual changes are being proposed and adopted during the consideration process. Modifications of proposed rule text must be in writing, specify the legal authority for the amendment, and be available to all councilmembers and the members of the public before a vote is taken on the modification. Verbally negotiating amendments with text projected or posted on a screen during the meeting immediately prior to a vote does not satisfy this requirement.

(7) The state building code council must adopt policies to ensure that the rule-making requirements in chapter 34.05 RCW are abided by during its rule-making process.

NEW SECTION.  Sec. 7. A new section is added to chapter 19.27 RCW to read as follows:

(1) The state building code council should supplement cost estimate information that is provided in a petition for statewide amendment with independent research if there is a concern that the provided information is not sufficient, it inaccurately represents the actual impacts or costs, or the assertions in the petition are questioned by experts with knowledge of the industry or circumstances.

(2) At least two weeks prior to final adoption by the building code council of nonemergency changes to the Washington Administrative Code must post on the agency website and make available for public comment:

(a) The small business economic impact statement as required by chapter 19.85 RCW;

(b) The cost-benefit analysis and supporting information for members to determine the proposed rule is the least burdensome alternative for those required to comply with it and that the probable benefits of the rule are greater than its probable costs as required by chapter 34.05 RCW;

(c) Any independent, third-party analysis performed in accordance with RCW 19.27.074(3)(b);

(d) Any supplemental cost estimate information and industry specific information provided about the proposal; and

(e) Any findings, determinations or recommendations of the state building code council's economic impact work group, consultants, or employees.

(3)(a) If a person working in an industry subject to regulation under a proposed rule raises an economic or cost-related protest during consideration of a rule or provides cost or economic analysis that is different than provided by other sources, the members of the state building code council must be made aware of the information.

(b) A person that provides information in (a) of this subsection may request that the state building code council provide a substantive response to raised concerns, including an explanation of incorporated provisions in the proposed rule that address, mitigate, or reduce the expected cost or economic impacts of the proposed rule.

(4) The information required in this section should be available for review and vetted by building code council members prior to the final vote adopting any rule modification. The economic and cost information is provided in advance so that the building code council can take action to address, mitigate, or even eliminate identified economic impacts.

NEW SECTION.  Sec. 8. A new section is added to chapter 19.27 RCW to read as follows:

(1) If the state building code council appoints a technical advisory group to be consulted regarding proposed code changes authorized in chapters 19.27 and 19.27A RCW, the process must be done in accordance with the provisions in this section.

(a) The technical advisory group includes subject matter experts and members representing interested parties. Any person appointed to serve as an expert or representative of a particular interest or group must have the qualifications or characteristics for the specific position.

(b) If a technical advisory group member represents a specific interest or group, any person of that group may petition the building code council to have a person removed from the technical advisory group on grounds that the person does not have the qualifications or characteristics necessary to represent the interest or group. The building code council must remove any technical advisory group member it finds lacks the characteristics and qualifications necessary to fill the position.

(2) The state building code council must post the name of each technical advisory group member, the industry or interest group the person represents, and must provide a way to contact each person.

(3) Each technical advisory group is subject to the same procedures and process as the state building code council.

(4) Each technical advisory group member must have training on the state building code council's procedure and ethics policies.

(5) Any application for appointment to serve on a technical advisory group must be approved or denied within 30 days of the council receiving the application.

(6) If a petition for a statewide amendment receives less than a majority vote by a technical advisory group, the proposed amendment will be tabled from further consideration. A councilmember may make a motion before the full council to continue consideration of that statewide amendment.

NEW SECTION.  Sec. 9. A new section is added to chapter 19.27 RCW to read as follows:

The state building code council must identify the sources of information reviewed and relied upon in the course of adopting changes to the Washington Administrative Code and include such information in the official rule-making file. The state building code must post on its website the materials that the state building code council considered or relied upon during the process. This information must remain publicly available on the website at least until one year after the effective date of any changed rule.

NEW SECTION.  Sec. 10. A new section is added to chapter 19.27 RCW to read as follows:

The state building code council must create a distribution list of state agency personnel to be notified by email of the compilation of proposed statewide amendments that constitutes the update of the building and energy codes. The notification must include a copy, or electronic links, or website directions, of the proposed rule, small business economic impact statement, and any additional posted economic analysis related to the proposed changes, and the dates and times for public comment. The distribution list must include the governor's office, the state fire marshal, the capital projects advisory review board, the department of commerce, and other government agencies that will be impacted by the proposed rules. The notification must be sent prior to public hearings on the proposed rules. The state building code council must include individuals that are involved in providing state subsidized housing on the list if the changes impact housing. This contact is to notify the agency that the proposed rule will increase the cost and complexity of building construction and identify when public comment will be taken at a specific date, time, and location. If a proposal changes the design of school buildings, the office of the superintendent of public instruction must be notified.

NEW SECTION.  Sec. 11. A new section is added to chapter 19.27 RCW to read as follows:

After the state building code council has filed with the code reviser's office the adopted permanent rule of comprehensive changes to Title 51 RCW of the Washington Administrative Code that occurs every three years, it must submit a report to the legislature identifying provisions that generated conflict, and summarize the different perspectives brought before the state building code council related to the conflict, and how the state building code council addressed that conflict. This report is to be submitted no later than the second Monday in January following the date of filing the permanent rule with the code reviser's office.

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