Thursday, May 22, 2008, 9 a.m. to 2:30 p.m.; Thompson Center; Room 3B, 201 West Washington Avenue, Madison, Wisconsin

Council Member Attendance: John Ashley - Present; Gregg Cleveland, Chair - P; Marty King - P;Tod Doebler - P; John Periard - Absent; Jim Stormer - Absent. 

Department of Commerce Staff: Bob DuPont, Joe Hertel, Terry Nolen, Sam Rockweiler.
 
Gregg Cleveland opened the meeting with a welcome and a review of the agenda.  Discussion of the draft progress report (below) for the preceding, March 22, 2007, council meeting was postponed until after the council members reacquaint themselves with it. 

Department update
Comm 41 - Boiler Code:  Bob DuPont reported that a public hearing was held the previous day on rule changes that include stiffening the requirements for solid-fuel-burning boilers.  There is some interest in using such boilers indoors, that are listed for outdoor use, but the Department would allow such indoor use only if the listing also recognizes indoor use.  Terry Nolen noted that outdoor setbacks to buildings and structures are also a concern; and explained how existing boilers, over time, sometimes gradually become enclosed within a building or structure, to protect the operator from the weather elements.

Comm 16  Electrical Code: Bob reported the Department is proposing to no longer modify the criteria for arc-fault circuit interrupters from the National Electrical Code, which would increase the cost of a 1200-square-foot, $180,000 house by $120 to $150.  Four to five interrupters would be needed in a typical home, at a cost of $30 each.  Tamper-resistant receptacles are also proposed, at an additional cost of approximately $0.50 each, which have been used in Europe for a long time.  Joe Hertel explained the manufacturers were instrumental in getting the NEC changed to result in new interrupters that have a better trip level.  The previous interrupters were not very effective because they tripped at 70 amps, and the new trip level is 5 amps.  Bob noted a public hearing on the proposal and on other changes to Comm 16 would be held on June 18.

Comm 60 to 66 - Commercial Building Code:  Bob reported the Department recently prevailed in a lawsuit that had challenged the Department’s authority to require automatic fire sprinklers in multifamily dwellings with fewer than 20 units.  According to Bob, phasing-in the sprinkler requirement should now be completed by 2011.  Gregg asked staff to send the judicial ruling to Council members. 

Comm 18 - Elevators, Escalators and Lift Devices:  Bob reported that mandatory licensure of elevator installers has been adopted, with a 6-month delayed effective date, and grandfathering of current installers.  The licensure reflects legislation that passed about 3 years ago, which followed implementation of credential requirements for inspectors of elevators and other lift devices.  It was noted that the future trend may be to credential all elevator practitioners, including installers, contractors, maintenance personnel, and inspectors.

Comm 10 - Flammable, Combustible and Hazardous Liquids:  Sam Rockweiler reported that the Comm 10 Code Revision Committee met on May 8 and reviewed the rule changes the Department made or rejected, as based on public hearing comments that were received in April and May of 2007.  Sam distributed and emphasized the changes that have been made in the opening sections of Comm 10 to refocus the chapter on long-standing statutory directives to protect new and existing facilities, or occupants or firefighters therein, from flammable, combustible, or explosive conditions.  Sam noted that this protection is in harmony with or coexists as environmental protection rules in Comm 10, because the objective of both of these types of protection is largely accomplished by keeping flammable and combustible liquids contained and controlled.  Sam explained that extensive changes were made to the hearing draft in response to sharing comments that the proposed rules were difficult to understand.  Retroactive requirements for secondary containment and overfill protection were also emphasized.  Sam distributed a timeline showing the rule changes could become effective by February 1, 2009.  It was noted that NFPA 30-2008 is likely to be adopted in the Comm 10 rule package. The NFPA 1-2009 will pick up that same NFPA 30 edition and probably become effective approximately in the spring of 2010.

Tod Doebler asked how extensively the draft rules modify corresponding industry standards.  Sam explained that as in other Department rulemaking in recent years, substantial efforts are being directed at replacing Wisconsin-based requirements with the current, nationwide industry standards.  Terry Nolen asked if the draft rules are ahead of rulemaking in adjacent states, and Sam explained that if they are, they should not be for long, due to each state needing to comply with the same federal directives relating to environmental protection.  Terry asked whether the new Comm 10 would regulate home brewing of ethanol and biodiesel fuels, and Sam explained that Comm 14 would likely instead address those operations because their storage containers are typically smaller than the 110-gallon threshold at which Comm 10 begins to apply.

New legislation
Bob distributed and discussed a listing of acts from the most recent legislative session that address programs administered by the Safety and Buildings Division. 

Act 63 newly requires statewide licensing of electricians and statewide inspection of electrical installations.  Although no grandfathering of current electricians is included, the licensing is to be phased in over the next 5 years. 

Act 75, as distributed to the council members, expands current requirements for collecting fire-incident data.  Bob noted that some of the data which will be newly collected, such as determining the age of a building where a fire incident occurs, may not mesh easily with the National Fire Incident Reporting System, and may show sprinklers are needed in one- and two-family dwellings, instead of showing sprinklers are not needed in smaller multifamily dwellings, as claimed by some of the builders.  Bob explained that the degree of compliance in reporting fire incidents will continue to be excluded from determinations about eligibility for fire department dues payments.  It was noted that although the act mandates fire incident reporting, the initial goal of the Department is to publicize the requirements and to encourage volunteer compliance.  Bob added that Comm 14 needs to be updated to be consistent with Act 75, and until that occurs, the differing criteria in Act 75 will supersede the corresponding Comm 14 criteria.  According to Terry, the two most controversial elements in Act 75 include (1) determining the age of a building, especially if a fire occurs in one of several additions that were built at different times; and (2) determining the cost of a fire’s damage to the building.  Cost tables may be available from the International Code Council for guidance in determining these costs.  Bob said Comm 14 could address age periods, and Marty King suggested correlating such age periods with the dates when major code changes occurred.  Marty suggested the Department provide guidance in how to estimate the age of buildings and the cost of the damage.  It was noted that the insurance industry generally does not furnish the fire loss information to the fire department anymore.

Act 79, as distributed to the council members, newly requires schools to annually file a Department-based hazard-evacuation report with the fire department, and newly requires semiannual drills for evacuating in the event of a tornado or other hazard.  Bob said the type of hazard can be selected by the school.  Marty indicated these evacuation drills should not be substituted for the required monthly fire drills.  It was noted that the statutes supersede code requirements, and the Department should clarify the requirements and differences.  Terry noted staff previously posted a fire-drill report form on the Division Web site, that may need changes, and he explained that NFPA 1 section 20.2.3.3.2 requires a second emergency egress drill annually during the first 30 days of operation, in addition to the once-a-month drills that are required by section 118.07(2)(a) of the statutes.  Marty agreed to send his current report form to Bob, for reference in revising the Web-based form.  John Ashley noted that the upcoming state education convention in January could include a presentation on fire safety, which could address the new requirements in Act 79.

Act 173, as distributed to the council members, exempts small, infrequently-used mobile kitchens from needing fire suppression systems and exhaust hoods.  Bob indicated this exemption is a modification of the requirements in NFPA 1 chapter 50 for commercial cooking equipment, which could be followed by legislative modification of the requirements in NFPA 1 section 10.14 for natural cut Christmas trees.  Marty reported that insurance carriers are asking for written permission from fire departments to use natural cut trees in public buildings as a way of reducing the associated risks.  John commented that the NFPA 1 section 10.14 requirements technically do not allow flowers at weddings and funerals unless approved by the fire department.  Terry reported that NFPA staff are interpreting NFPA 1 section 10.14.2 as not allowing fire departments to permit use of natural cut trees, because the section refers only to combustible vegetation.  Bob and Sam explained that according to Wisconsin’s criteria for constructing statutes and administrative rules, the reference in NFPA 1 section 10.14.1 to “Combustible vegetation, including natural cut Christmas trees” means that in Wisconsin, the reference in 10.14.2 to combustible vegetation likewise includes natural cut Christmas trees.  It was noted that some local authorities having jurisdiction have adopted both model fire codes and are applying whichever model code language that best suits the jurisdiction’s needs on an issue.  Terry asked for a department interpretation to be issued and publicized.  It was noted that artwork and teaching materials on school walls was another controversial code issue and that may need to be revisited.  Terry noted concern for rented or leased mobile kitchens that are used at multiples sites, with a total annual usage which exceeds the exemption limit in Act 173 of fewer than 12 days.  Bob said a rule could be developed that establishes a tracking system for documenting the total annual usage.  Bob also noted Act 173 does not exempt mobile kitchens from any other requirements, such as setbacks.

A motion was made by Tod Doebler, seconded by John Ashley, and passed unanimously, recommending that the Department promulgate a rule which requires tracking of mobile kitchens that are used under the Act 173 exemption, to verify they do not exceed the annual usage limit of fewer than 12 days.

Act 203 newly requires licensing of propane distributors, and Bob noted that rules for the licensing will be added to chapter Comm 5.  Bob explained that the act does not apply to retail stores where empty portable containers are simply exchanged for full containers, but would apply to a facility with, for example, a 1,000-gallon storage tank that is used for filling portable containers.  It was noted that a training plan would need to be developed which would also address the liability insurance requirements.   

Act 205, as distributed to the council members, newly requires installation of carbon monoxide detectors in residential buildings except in one- or two-family dwellings, hospitals, and nursing homes.  It was noted that the department would need to develop rules by October of 2008.  Bob explained the act also requires certified inspectors or the Department to inspect the installations, which could be accomplished by certifying fire inspectors to perform the inspections.  Gregg noted that fire department inspectors are authorized deputies of the Department and could perform the inspections without becoming certified, but he emphasized he is not opposing credentialing of fire inspectors, especially if those credentials would expedite getting inspections of the detectors started.  Bob noted training may be needed for the inspections, and private-sector inspectors could perform the inspections.  It was noted that the required training covering the basics may be approximately a minimum of two hours.  Gregg added that owners who have knowledgeable staff could also perform the inspections.  Joe noted that Underwriters Laboratories may have a training program available, and training could be offered at county fire officer meetings.  It was noted tat the Wisconsin Building Safety Network could partner with the University of Wisconsin and offer training at approximately $15 per person.

Act 208, as explained by Joe, newly allows non-graded load-bearing lumber in one- and two-family dwellings and in multifamily dwellings, if the miller has been correspondingly trained and certified by the Department of Natural Resources.  However, the act also allows inspectors to reject the lumber or to impose limits on its use.

Act 225 newly requires manufacturers of cigarettes sold in Wisconsin to certify to the Department that the cigarettes comply with the fire-safety requirements in the act.  According to Bob, Illinois and 30 other states have enacted similar legislation.

Fire dues program
Bob reported that 3 townships are not eligible for fire dues payments this year, due to failing to send the Department the self-certification form 2 years in a row.  Bob noted ineligibility which is based on this failure is not appealable to the Department-appointed fire dues appeals board.  Even so, the Department is proceeding with establishing the board, for referrals if appeals occur in the future.  It was noted the Department has authority to relieve any fire chief from duties as a Department deputy, for cause; and upon such suspension, to appoint some other person to perform the duty.  However, the Department historically has not exercised that authority.

Timeline for review of the 2009 NFPA 1, and issues with the March 1 edition of Comm 14
Staff explained that copies of the 2009 changes to the 2006 NFPA 1 should become available in the fall.  Prior to then, changes to Comm 14 can be developed that are needed to achieve consistency with the previously discussed new legislation.  It was noted the target effective date for the next edition of Comm 14 is April 2010.  The target effective date for the next edition of Comm 60-66 is January 2010.

Gregg recommended analyzing what has been lost and what has been gained through the March 1 edition of Comm 14, and considering what can be done better - particularly with issues that have not been completely resolved, such as defining what constitutes design and construction, and addressing Terry’s list of unresolved staff issues.  Terry reported that the list of staff issues has shrunk - but some new issues have been added, such as the difficulty some volunteer fire departments are having with adjusting from the previous edition of Comm 14 to the March 1 edition.  Gregg agreed this difficulty is not uncommon.  It was noted the council may want to establish a workgroup to address the special issues and to make recommendations back to the council.

Terry recommended improving the clarity of Comm 14 by moving some of the administration and application requirements in section Comm 14.01 to corresponding topic areas in subsequent sections.  This could include moving the application criteria for fire department access and water supply in Comm 14.01(2)(a)4. to a new Comm 14.18 that would correspond with the criteria in NFPA 1 chapter 18 for fire department access and water supply.  Similarly, the application criteria for flammable, combustible, and hazardous liquids in Comm 14.01(1)(f) could be moved to a new Comm 14.66 that would correspond with the criteria in NFPA 1 chapter 66 for flammable, combustible, and hazardous liquids.  Another change could consist of renumbering the Comm 14 subsections to correspond with matching sections in the NFPA 1 chapters - such as renumbering Comm 14.13(4), for maintaining sprinkler systems, to be Comm 14.13(8), in order to correspond with the maintenance requirements in NFPA 1 section 13.8.  If this renumbering occurs, the note about section numbering at the beginning of Comm 14 subchapter II could be expanded to also address coordination of subsection numbering.  Attempts could also be made to further apply NFPA 1 as the primary document, with flags that go to Comm 14 whenever Comm 14 modifies NFPA 1.

Bob reported that article 708 in the current National Electrical Code, which is adopted in Comm 16, addresses critical-operation power systems as so designated at the local level.  Bob asked whether other agencies besides the Department should provide training on the topic.  Gregg agreed that deciding which power systems are critical should be a local decision, and Commerce should not provide the training.

Bob asked whether clarification is needed for “seasonal” occupancies, such as whether one inspection per season is appropriate.  Gregg suggested that seasonal implies an occupancy of 6 months or less.  Terry suggested relying on a dictionary definition of seasonal, and noted that although Comm 14 limits a “temporary” occupancy to no more than 180 days, no definitions are included for “vacant,” “unoccupied,” “periodic,” or “abandoned.”  And, NFPA 1 section 10.13.1.1 refers to facilities used on a seasonal basis and to temporary vacancy.  The issue of concern is how to determine the number of fire prevention inspections that are required under Comm 14.01(11)(b), because of their impact on establishing eligibility for fire dues payments.  Seasonal could be interpreted to mean an occupancy that extends consecutively to up to 3 of the 4 weather seasons in Wisconsin.  Gregg questioned whether the Department should publish guidance on the issue, and Bob agreed to route a draft through the council if the guidance is developed.

Fire inspection form
Bob asked whether there is interest in using a two-page, more-detailed inspection form based on NFPA 1.  Although the council members are not using the Department’s current one-page form, they concluded that guides, such as checklists that are organized by occupancies, may be helpful for small fire departments.

Fire inspector certification
Bob reported that efforts are continuing for developing a voluntary credential program for fire inspectors, but the program probably will not advance substantially further until after implementation of the newly required licensing for inspectors of carbon monoxide detectors.

Wisconsin Building Safety Network
Bob reported that efforts are underway for coordinating building-safety regulation activities with economic development activities, through organizations such as the League of Wisconsin Municipalities, the Wisconsin Counties Association, the Wisconsin Towns Association, the University of Wisconsin - Madison College of Engineering, and the University of Wisconsin - Extension.  The efforts include addressing related topics such as contracting with independent inspection agencies; storm water management, and taxes based on impervious surfaces such as fire access lanes; training courses for building inspections, soil erosion, permits and permit centers, carbon monoxide detectors, electrical inspections, ordinances, and human resources; and informational outreach to elected officials.  Terry emphasized the need to maintain visibility on following through with funding the corresponding fire prevention enforcement activities, particularly because fire dues payments are inadequate for covering the costs of these activities.

Next meeting
Gregg suggested meeting in July, and focusing on Terry’s list of staff issues - such as (1) identifying which issues have been resolved by either the March 1 edition of Comm 14 or through a published Question-and-Answer format, (2) identifying issues that remain unresolved, and (3) identifying new issues.  The unresolved and new issues could then be addressed in a prioritized order selected by staff. 

Council Member Attendance: John Ashley - Present; Gregg Cleveland, Chair - P; Marty King - P; Dave Lind - P; John Periard - Absent; Jim Stormer (Todd Blaser, Alternate) - P 

Visitors: Tod Doebler - Menomonee Falls Fire Department; Dan Gengler - National Fire Sprinkler Association

Department of Commerce Staff: Bob DuPont, Joe Hertel, Terry Nolen, Sam Rockweiler
 
Gregg Cleveland opened the meeting with a review of the agenda and the draft progress report for the preceding, March 7, 2006, Council meeting. 

A motion was made by Dave Lind, seconded by Marty King, and passed unanimously, to accept the March 7, 2006, progress report.

Department updates
          Commercial Building Code and fire sprinkler thresholds
Bob DuPont reported that subsequent to the December 2006 public Hearing for updating Wisconsin’s Commercial Building Code and Fire Prevention Code, most of the activity in updating the Commercial Building Code has focused on revising the requirements for ventilation and energy conservation.  Bob emphasized that no changes are anticipated to the proposed expansion of sprinkler requirements to include all new buildings with three or more dwellings. Bob indicated that the proposed expansion would put Wisconsin in line with 24 other states that currently have the lower sprinkler threshold for residential buildings.

            Limited-scope review of the fire dues program
Bob distributed copies of a letter from the Wisconsin Legislature’s Joint Audit Committee, and a preceding joint audit request from a state Senator and a Representative, that have resulted in a limited-scope review of the two-percent fire insurance dues program.  According to the Committee letter, the review is focusing on expenditures by the Department and by the Wisconsin Technical College System.  Bob reported that the auditors are reviewing expenditures over the last three full fiscal years, from July 2003 to July 2006, and are expected to issue a report near the end of April.  Gregg commented that the concerns which prompted the audit primarily relate to the fire service training provided by the technical colleges. 

Gregg asked how many Department staff are funded by the two-percent dues, and Bob said there are 5 field positions and 1.6 office positions.  Bob added that the fire dues program has recently hired a 0.5 FTE position for entering National Fire Incident Reporting System data; and NFIRS training options are being looked at, which could result in video-based training on the fire prevention program’s Web site.

              Budget Bill
Bob reported that the Governor’s proposed Budget Bill does not cut any positions in the Department’s regulatory programs, and that although the Department may be required to lapse some funding to the state’s general fund, no lapse will occur from the two-percent funds.  Marty King reported there has been preliminary discussion of transferring some of the two-percent funds to emergency medical services, but he does not expect those efforts to proceed further.  

              Fire dues audits
Joe Hertel reported that efforts are underway to develop Web-based reporting for the two-percent self-certification forms that municipalities submit to the Department.  Dan Gengler asked what the current compliance rate is for Wisconsin fire departments in filing National Fire Incident Reports, and Bob estimated the rate at 55 percent.  Dave Lind asked how well the current fire dues audits are proceeding, and Bob reported that Department field staff are currently recommending a determination of noncompliance for three municipalities – one of which was self-certified as being noncompliant.  In response to questions on whether an appeals board had been appointed yet and who the members are, Bob explained that he expects a fire dues appeals board to be appointed shortly after the effective date of the corresponding rules in proposed chapter Comm 14, which is currently estimated at September 1.

              Stop-work orders
Gregg asked for clarification of issuing stop-work and stop-use orders.  Bob explained that only Department staff can issue the stop-work orders which are addressed in chapter Comm 3, but stop-use orders can be issued by local officials under other authority.  Terry Nolen noted that Department field staff have limited criteria in the current Comm 14 to issue stop-work or stop-use orders, because much of chapter 1 of the 2000 edition of NFPA 1 was deleted during its adoption in Comm 14.  The staff would have expanded criteria through the 2006 NFPA 1 chapter 1 requirements that are proposed for Comm 14.  However, stop-work orders are not likely to occur frequently under the new Comm 14 because the NFPA 1 requirements for constructing public buildings and places of employment would continue to be deleted under the new Comm 14. 

Departmental responses to December 2006 Hearing comments  (See amended PDF of hearing responses)
In reference to the excerpted summary of hearing comments and corresponding draft Department responses that was e-mailed to the Council on March 16, Sam Rockweiler explained that the excerpt was intended to include only the comments relating to Comm 14.  Sam noted that the excerpt was still in draft form, and that the complete hearing comments and Department responses would be posted on the Department’s Web site after being accepted by the Secretary’s Office.  Sam noted the comments were supportive, except for opposition to (1) continuing to allow local application of the International Fire Code instead of the NFPA 1 code, and (2) continuing to delete the NFPA 1 chapters relating to flammable, combustible and hazardous liquids.

                Local use of an alternate model fire code
Gregg questioned whether the reference in the draft responses to local adoption of an alternate model fire code adequately captures the Department’s traditional position that locally adopted requirements must be equivalent to or more restrictive than the Department’s requirements.  It was noted that no comprehensive comparison was done between the 2000 and the 2006 versions of the IFC as was done with the NFPA 1, Uniform Fire Code.  Dave questioned the meaning of the response that the state fire code will “stand down” where a municipality chooses to administer the IFC in lieu of NFPA 1.  Dave explained that some municipalities currently adopt the IFC, and then selectively apply parts of NFPA 1 which are more restrictive than the IFC – which is substantially different than applying the IFC wholly in lieu of NFPA 1.  Sam noted the corresponding draft text in proposed Comm 14 no longer includes the phrase “in lieu of” and instead refers to local requirements that, in total, are equivalent to the Department’s requirements.  Bob explained that under the proposed Comm 14 text, municipalities could apply a combination of the IFC and NFPA 1, but only if they do so through an ordinance.  Terry noted that municipalities have always had this authority locally without the need to have the alternative fire code option language or reference in Comm 14. 

Marty noted concern for the Department not providing oversight in municipalities that apply the IFC instead of NFPA 1.  Dave asked whether the Department would resolve subsequent uncertainties about whether local requirements are equivalent to NFPA 1 requirements, such as through an appeal process, and Bob said yes.  Dave noted his belief that the Department has a responsibility to inform municipalities of the repercussions of substituting the IFC for NFPA 1, such as then potentially being unable to selectively apply requirements from both model codes.  Gregg noted concern for lack of clarity about the current application of the two model codes, and Marty noted that particular difficulties arise where a fire department serves multiple municipalities which do not each apply the same model code.  Dave commented that the Department has allowed a problem to exist in the fire service, and the Fire Inspectors Association is not obligated to resolve it by providing training on the IFC.

A motion was made by Dave Lind and seconded by John Ashley, recommending that the Department send an informational letter about the expected upcoming changes to local adoption and application of the IFC, to each of the municipalities which currently have a special order for applying the IFC in lieu of NFPA 1.

Terry recommended explaining the difference between the corresponding proposed text for Comm 14 and the current practices, and Bob agreed clarification might be helpful.  Gregg recommended emphasizing that a municipality cannot selectively apply requirements from both model fire codes unless it has a local ordinance which is not in conflict with Comm 14 and which clearly allows use of both codes.  Terry recommended clarifying whether a municipality can apply the IFC to a state-owned building, and clarifying the role of a fire department that serves multiple municipalities which do not each apply the same model fire code.

The motion passed unanimously.

                      Costs of Standards and Codes
John Ashley asked for clarification of the reference in the Hearing comments to an unfunded mandate being created by adoption of the International Building Code.  Joe Hertel explained that the reference addresses the costs that fire departments may incur in obtaining standards and codes which are incorporated into the Commercial Building Code.  Joe agreed to look into whether the Department could get copies of the IBC to each of the 850 Wisconsin fire departments.  Bob agreed to pursue getting copies of NFPA 1 to any fire departments that are unable to attend expected upcoming NFPA 1 training, where copies of that code will be distributed to the attendees. 

                       NFPA 1 chapters relating to flammable, combustible and hazardous liquids  
Sam explained that the draft Agency response to comments relating to chapter Comm 10 had been developed in conjunction with developing proposed public Hearing documents for repealing and recreating chapter Comm 10, which were recently delivered to the Secretary’s Office for approval to hold public Hearings.  The proposed new Comm 10 would focus more on tanks and less on smaller containers.  Questions arose as to the status of the remaining fire prevention provisions in Comm 10, and Marty and Dave noted a continuing preference to have Comm 14 include all fire prevention requirements for flammable, combustible and hazardous liquids, rather than having some of those requirements in Comm 10.  It was noted that the fire service prefers to have one code for these issues, a one stop shopping concept.  Bob explained that further efforts could be directed at achieving that consolidation during the next code-change cycle, involving the 2009 edition of NFPA 1.  Gregg commented that application of the most restrictive corresponding requirements should always be emphasized during construction of buildings.  Terry recommended having the Department’s various codes contain similar global statements for making the codes work well together, especially in any areas of code conflict.  Dave asked whether the next code-change cycle would include a coordinated update of each of the Department’s major codes, and Bob noted a preference for that coordination.  Gregg recommended having that coordination particularly mandate application of the most restrictive corresponding requirements.  For the current code-change cycle, Bob reported that instead of updating the Department’s two enrolled codes for commercial buildings and fire prevention, staff may develop insert pages for use with the 2006 model building and fire codes.

Post-Hearing changes to Comm 14
Sam initiated discussion of the draft post-Hearing changes to Comm 14 that were emailed to the Council on March 16; and he explained how they fit into the previous, complete redraft of Comm 14 which was e-mailed to the Council on August 14, 2006.  Sam emphasized that the overall effect of the March 16 changes would be to no longer delete the requirements in NFPA 1 which relate to flammable, combustible and hazardous liquids, except where those requirements differ from requirements in Comm 10 – as would occur if upcoming changes to Comm 10 include adoption of a newer version of the NFPA 30 flammable and combustible liquids code.  

Gregg asked which chapters of NFPA 1 would remain deleted after inserting the March 16 changes into the August 14, 2006, redraft.  Sam explained that only NFPA 1 chapter 27 would remain deleted – in order to instead apply recently updated requirements in chapter Comm 26 for mobile home parks.

The Council was not opposed to the March 16 draft changes.

Gregg questioned whether a steamer connection at a fire hydrant can have nonstandard threads.  According to Terry, the requirements for standardized hose threads in section 213.15 of the Statutes were originally intended to apply only to private fire-fighting companies and firemen’s associations organized under chapter 213.

Sam distributed and initiated discussion of three handouts of additional proposed changes to Comm 14, which were developed from internal staff discussions.  In proposed section Comm 14.01 (12) (f) 2., the Council agreed the deadline for fire departments to submit annual update forms should be changed to February 1.  There was interest in coordinating this deadline with Web-based, 2 Percent reporting in the near future.  For proposed sections Comm 14.01 (11) (b) 7. and (e), the Council discussed whether electronic-based reports should be maintained in a form capable of conversion to written form within a reasonable amount of time.  Terry noted that the proposed language was extracted from section 181.1601 (4) of the Statutes, and such conversion may be important in the proposed appeal process for fire dues audits.  However, there was concern for such conversion becoming impractical after long-term migration through successive software versions.  The Council agreed the conversion capability could be required for up to five years.  In discussing the requirements in NFPA 1 section 20.1.4.3 for open flames, Dave Lind commented that NFPA’s application of these requirements to only assembly occupancies is an oversight.  The Council reaffirmed an earlier agreement that the 20.1.4.3 requirements should be modified to apply to all occupancies.

Sam distributed and reinitiated discussion of previously discussed changes for current section Comm 14.002 (6), which are being developed in conjunction with moving regulation of small containers (less than 110 gallons) of flammable, combustible and hazardous liquids, and regulation of certain process containers for these liquids, from Comm 10 to Comm 14.  Sam explained that the scope of Comm 14 is being expanded for flammable, combustible and hazardous liquids, to apply beyond public buildings and places of employment, as Comm 10 currently does, and the retroactive aspects of Comm 14 would newly apply to these containers.  Based on the March 16 changes relating to no longer deleting NFPA 1 requirements for flammable, combustible and hazardous liquids, the Council agreed that the Comm 14.002 (6) criteria could be substantially shortened and simplified, and there may be interest in expanding the Comm 14 Appendix to include a listing of the containers that are moving from Comm 10 to Comm 14.  The Council also agreed that the Note under proposed section 14.01 (12) (d) 2. should be expanded to recognize that records of fire inspections beyond public buildings and places of employment are not fire dues entitlement records.

Unresolved issues previously addressed by the Council
Gregg noted ongoing concern for issues that are discussed but left unresolved.  He wants to see the Department put procedures or processes in place for addressing unresolved issues.  He also indicated that formal Code Interpretations from the Department have been effective in the past, but the less formal, Question-and-Answer pronouncements that the Department has issued since 2002 for the Commercial Building Code have been too transitory.  Gregg wants to see Department code interpretations and code-application positions become more formal and archival, and he wants the Department to develop a process to accomplish that.  As an example, Gregg cited ongoing difficulties resulting from not having a definition of design and construction, since Comm 14 defers to the Commercial Building Code for all design and construction of public buildings and places of employment.  Gregg commented that the Comm 14 Council’s progress reports are the only archives currently available for determining the original intent of the Council and the Department.  Dave asked whether the Department’s code interpretation authority extends to the standards and codes that are incorporated into the Department’s codes.  Bob said yes, and he added that the Q and A pronouncements could be modified to be more formal. 

Bob reported that although Q and As have not been developed yet for Comm 14, a new communications position is being filled, which could address the topic, and the Department is approximately two months into analyzing optimal resource allocations throughout all of its programs.  The analysis is expected to include a comparison of the resources that each program has for interfacing with local agents, which could result in applying some general Safety and Buildings Division appropriations which are not from fire dues, to fire prevention programs.  In short, Bob agreed that a better system is needed for addressing unresolved issues, but he needs to be able to apply resources to develop the improvements.

Terry commented that the Department fire prevention coordinators’ list of unresolved issues primarily address the fire code problems which have occurred from 2002 to now, especially (1) violations of the IFC-alternative option; (2) when is an issue considered design and construction versus when is an issue considered use, operation and maintenance; (3) lost Wisconsin-based requirements from the 1999 edition of Comm 14; and (4) requirements that are retroactive.  Gregg recommended looking at how the numerous jurisdictions in other states address issues relating to adoption of the International Building Code and its references to the IFC, in combination with adopting NFPA 1.  Gregg also recommended developing improvements for addressing unresolved issues before considering new issues, such as the remaining topics on the meeting Agenda, which included voluntary credentials for fire inspectors, letters for rescinding notices of noncompliance to fire dues criteria, and fire extinguishers on school buses.  Dave recommended against waiting with considering new issues until after all previous issues are resolved.  John noted concern that school districts may be making assumptions which are untrue, if the assumptions are based on inadequate information being provided to local jurisdictions, but new issues that are important should be addressed in a timely manner as well.  Nonetheless, the Council emphasized its appreciation for the Department’s efforts and output to date.

Voluntary credentials for fire inspectors
Bob noted that interest has arisen for voluntary credentials for fire inspectors.  Bob indicated a scope statement could be initiated, and a task group could be appointed to work on the topic and make recommendations.  Tod Doebler reported that the interest is conceptual at this point, within an education committee for fire inspectors.  Gregg recommended that fire inspectors discuss the topic with the Fire Chiefs Association and other fire service organizations, and substantially develop a proposal before having the Council and the Department consider the topic in detail.  Terry noted the topic is linked to a current mandate in section Comm 14.47 (4) (a) for fire inspectors to complete required training approved by the Department and by the fire chief.

A motion was made by Todd Blaser, seconded by Tod Doebler, and passed unanimously, to not mandate a certification or other credential for fire inspectors.

A corresponding motion was made by Tod Blaser, seconded by Gregg Cleveland, and passed unanimously, to amend the applicable portion of the current mandate in Comm 14.47 (4) (a) to read  “conduct the inspections upon completion of required training approved by the department and by the fire chief.”

Next meeting
Bob recommended that the next meeting not occur until July, at the earliest, in anticipation of completing the proposed update of the Commercial Building Code and the Fire Prevention Code. 

Tuesday, March 7, 2006, 9 a.m. to 2:30 p.m., Thompson Commerce Center, Room 3B, 201 West Washington Avenue, Madison, Wisconsin
Council Member Attendance: John Ashley Present;  Gregg Cleveland, Chair (Dave Lind, Alternate) P; Marty King P; Dave Lind (Tod Doebler Alternate) P;     John Periard Absent; Jim Stormer (Todd Blaser Alternate) P.
Department of Commerce Staff: Bob DuPont, Joe Hertel, Terry Nolen, Sam Rockweiler.
Dave Lind opened the meeting with a review of the draft progress report for the preceding, February 1st Council meeting.  In reference to the discussion on page 4 addressing the authority versus duty of fire chiefs, under sections 101.14 (1) and (2) of the Wisconsin Statutes, Terry Nolen noted that the statutory text has not changed for many years, and that although the progress report accurately reflected his comments at the February meeting, he is concerned about whether the Department is changing its interpretation of the statutory text on fire chief authority to administer and enforce Comm codes as it relates to fire hazard abatement, versus the duty to determine and correct fire hazards.  Terry noted the fire chief, as a deputy of the Department, is given authority to administer and enforce the requirements in the Wisconsin Commercial Building Code that relate to fire hazards or to prevention of fires.  The fire chief also has a duty, in public buildings and places of employment, to determine and cause to be eliminated any fire hazard or any violation of any law relating to fire hazards or to prevention of fires.  Bob DuPont commented that the Department’s corresponding rules, which fire chiefs have authority to enforce, have the effect of law.  Bob added that the Department would like to have a commercial building inspector, from either the public or private sector, available in all counties or municipal areas throughout the state.  Wherever a local jurisdiction is then unable to provide building inspection, the Department could contract with private inspection agencies, as is currently occurring with construction of one- and two-family dwellings.  Bob emphasized that under the Statutes, fire chiefs have a duty to cause to be eliminated any fire hazard at any public building or place of employment.  Dave Lind commented that under his local ordinance, both building inspectors and fire inspectors have concurrent authority to enforce requirements in both Comm 14 and the Commercial Building Code, and he indicated that the Department’s rules should also reflect that authority.

A motion was made by John Ashley, seconded by Marty King, and passed unanimously, to accept the February 1st progress report, in conjunction with the March 7th discussion.

Department updates
Local use of an alternate fire code
Bob reported the Secretary’s Office has decided that the public hearing draft for updating Comm 14 should retain the current local option to apply the International Fire Code in lieu of the NFPA fire prevention code.  Dave asked whether the Secretary’s Office intended to answer the IFC questions he previously posed.  Bob said he had no written answers to forward to the Council, and any possible future responses may be in reaction to public hearing comments.  Bob added that the date for the hearing was not established yet, but a date in May is desired.  Dave asked whether the decision would result in any substantive changes to the corresponding draft text that the Council has reviewed for proposed section Comm 14.001 (2).  Bob said it would not, because the draft text is consistent with the Department’s general movement toward less bureaucracy.  However, the procedures for implementing this IFC option have not been fully established yet.

State Fire Marshall’s Office
Bob reported that the Secretary’s position on whether any changes should be made to the State Fire Marshall’s Office is that the topic is not appropriate for the Department to address, and the question should be directed instead to the Governor’s Office and Legislature.  Marty King commented that adjacent states have more-robust State Fire Marshall Offices, and Tod Doebler said the fire service in those states typically report to that Office.   

Fire sprinklers in multifamily dwellings
According to Bob, the topic that is attracting the most attention in the current update of the Commercial Building Code is whether to change the threshold for requiring sprinklers, from the current level of more than 20 dwelling units, down to three or more dwelling units.  Bob noted the model building codes currently apply the lower threshold, and the Department generally is inclined to use requirements in model codes.  Department staff are compiling corresponding National Fire Incident Reporting System data, along with data from other states that relates to adoption and application of the lower threshold.  A total of 24 states have adopted the 2003 edition of the International Building Code, which contains the lower threshold, and 12 states have made no changes to it.  Staff are also analyzing the potential impacts on small businesses.  Some businesses would incur higher costs, and other businesses, such as sprinkler contractors,  would benefit.  About 1000 new apartment or condominium buildings in Wisconsin could be affected each year by the change.  Based on an estimated sprinkler cost of $1.50 to $2 per square foot of building area, the total annual cost of the change in Wisconsin could range from 18 to 24 million dollars, which could result in a 1- to 5-percent increase in the total cost of the buildings.  However, that cost increase would be diminished by the Building Code’s relaxation of other requirements, where sprinklers are provided.  Water supply concerns must also be addressed.

Terry asked whether the Department’s legal counsel has issued a written opinion on whether lowering the sprinkler threshold would conflict with the sprinkler thresholds for multifamily dwellings, as listed in chapter 101 of the Statutes.  Bob explained that the opinion is still in draft form, but the expected outcome is that the Department has authority to lower the threshold, and that lowering the threshold to match the model code requirements would comport with a statutory directive to be consistent with model code requirements for sprinklers in commercial buildings.  Terry asked whether the Department’s opinion would permit municipalities to establish local sprinkler ordinances to meet the lower thresholds, or affect those municipalities with pre-existing sprinkler ordinances.  Bob said the Department’s opinion would not affect either.

Fireworks
Staff distributed copies of proposed 2005 Assembly Bill 1083, which essentially would prohibit retail sale of all fireworks except to people who hold a fireworks display permit, as issued by a municipality after an applicant demonstrates compliance with several statutory requirements.

National Fire Incident Reporting System (NFIRS)
Bob explained that the Department is interested in coordinating a Wisconsin-based reply to a federal invitation for comments on improving NFIRS.  Bob explained his interest in simplifying the system and making the database more readily accessible, but not at the expense of compromising data that the fire service needs.   

Marty King said although the position of the Professional Fire Fighters of Wisconsin is that the system should be simpler and easier to use, the actual practice has been that the current level of detail, such as for firefighter deaths and injuries, is sometimes necessary for proving the needs of fire departments.  Marty, Dave and Todd Blaser explained that they also use alternate reporting systems that better suit their needs.  Further discussion focused on the system’s limited ability to accommodate quick queries for specific kinds of information; inability of a fire department to see information from other nearby local fire departments; inability for local fire departments to see information from other states; inability to show fire trends, such as for fire setters, church fires, or vacant or abandoned buildings; a possibility for designating local fire departments as assistant state program managers; and fire department concerns about NFIRS being overly burdensome for entering and working with data, time constraints, and high staff turnover rates from a training and education perspective.  Dave recommended that the Department solicit corresponding input from the Wisconsin State Fire Chiefs Association, and he indicated the Wisconsin Fire and EMS Coalition would support the results.

March 2nd updated draft rules for repealing and recreating Comm 14
Sam Rockweiler initiated discussion of the updated draft rules and corresponding summary for repealing and recreating Comm 14, which were e-mailed to the Council on March 2nd.  Bob noted that staff had not forwarded the draft rules yet to the Secretary’s Office for approval to advance to public Hearings, and when the draft is released for the Hearings, it will include proposed rules for updating the Commercial Building Code.

Tod Doebler asked what the Department would do if the accompanying changes in the Building Code become bogged down by resistance to lowering the sprinkler threshold for residential occupancies.  Bob indicated that the proposal to lower the threshold could be removed from the draft, and he noted the desired effective date for the draft rules remains at January 1, 2007.

In reference to the proposed text for section Comm 14.66 on page 21 of the draft rules, for flammable and combustible liquids, Dave noted concern that the text would turn off all of NFPA 1 Chapter 66, in Comm 14.  Sam explained that although the proposed text addresses a boundary between Comm 14 and Comm 10, and Comm 10 regulates storage, use and transportation of flammable and combustible liquids, the proposed text does not change the current local authority to enforce Comm 10.  Sam noted the Environmental and Regulatory Services Division, which administers Comm 10, is satisfied with the proposed text.  Dave commented that there are too few Comm 10 certified inspectors to cover the entire state, and he explained his preference to move all fire-safety related requirements from Comm 10 to Comm 14, and thereby have Comm 10 address only the environmental-protection related requirements for flammable and combustible liquids.

Terry questioned why a boundary is needed between Comm 10 and Comm 14, and yet none is needed between Comm 10 and the Commercial Building Code.  Terry noted that the Commercial Building Code also addresses design and construction requirements for storage and use of flammable and combustible liquids, and it informs readers to see Comm 10 for additional requirements for motor vehicle service stations and for storage, handling, processing and transporting of flammable and combustible liquids.  Terry asked why the Fire Code cannot handle it the same way.  Terry indicated the Comm 14 Council has been dealing with this issue for over two years, and the net effect is “nothing has changed.”  Bob explained that Comm 10 defers to the Building Code for design and construction of public buildings and structures, in lieu of the requirements in the NFPA standards which are adopted in Comm 10.  Bob added that the proposed text in Comm 14.66 would allow enforcing additional aspects of NFPA 1 Chapter 66, through Comm 14, when regulation of small containers (aboveground tanks smaller than 110 gallons, and underground tanks smaller than 60 gallons) is moved, as expected, from Comm 10 to Comm 14.

A motion was made by Dave Lind, seconded by Todd Blaser, and passed unanimously, to move all fire-prevention related topics for flammable and combustible liquids, from Comm 10 to Comm 14.

In reference to the deletion of previously proposed section Comm 14.69 on page 21 of the draft rules, for liquefied petroleum gases and liquefied natural gases, staff noted the result is that no modifications are proposed for NFPA 1 Chapter 69.

In discussing the proposed text for Comm 14.43 on page 20, for spraying, dipping and coating using flammable or combustible materials, as addressed in NFPA Chapter 43, the Council agreed to amend its motion for flammable and combustible liquids to include the topics addressed in NFPA Chapter 43; and to similarly include the related topics in NFPA Chapter 30, which address motor fuel dispensing facilities and repair garages, and the related topics in NFPA Chapter 42, which address refueling of automotive vehicles, marine vessels, and aircraft.

In discussing the informational Note under Comm 14.01 (2) (a) 4. c. on page 5, which refers to design and construction requirements in the Commercial Building Code, the Council agreed the Note should be moved to subdivision 2., where the design and construction requirements in NFPA 1 are deleted.  Dave suggested changing the Note to instead be a Comm 14 requirement.

In discussing the proposed revisions for Comm 14.01 (2) (b) 1. on page 6, which address any conflicts between the Department’s rules and other documents referenced therein, Dave commented that the topic illustrates how problems result from having outdated fire safety requirements in Comm 10. 

In discussing the NFPA 1 Chapter 1 requirements that would be excluded by Comm 14.01 (4) on page 7, Bob reported that the Secretary’s Office is moving toward allowing only Division Administrators or management designees thereof, rather than Department field staff, to issue stop-work or stop-use orders.  Consequently, the allowance in NFPA 1 Section 1.7.14 for local issuance of such orders may be excluded from Comm 14.  Dave and Marty commented that fire departments have statutory authority to order evacuation of buildings, whenever eminent danger occurs, and that any work which would be ordered to stop, under Section 1.7.14, would not be construction work because construction is not within the scope of Comm 14.  Bob agreed to pursue not excluding Section 1.7.14 from Comm 14, and he indicated that retaining this Section should not negatively impact small businesses, because the section would essentially provide further guidance for what is already occurring under current statutory authority.

Staff list of issues
Terry initiated discussion of a staff list of issues that remain to be addressed by the Council, which was emailed to the Council on February 28.  Bob noted that some of the issues are not code-change items. 

In discussing problems associated with definitions, Terry noted there is uncertainty about when electronic-based records should be accepted as written records.  The Council agreed that the informational Note under Comm 14.01 (10) (b) 7. on page 11 of the draft rules, which addresses electronic-based records, should be moved to the end of subsection (10) in order to provide guidance for the entire subsection, and the topic should be emphasized during training programs for fire departments.

For two-percent-dues audits, Terry said the corresponding timelines in Comm 14 do not all match the timelines in the Statutes.  Bob suggested changing Comm 14 to clarify that a Department audit of a fire department is different from a self-certification performed by a fire department.  The Council agreed to delete “audit” at every reference in Comm 14 to “self-certification,” and to delete “onsite” at every reference in Comm 14 to “audit.” 

Terry explained that under current Comm 14.47 (2) (b), which is repeated in Comm 14.01 (10) (b) 2. on page 9 of the draft rules, the fire chief is responsible for determining the number of public buildings and places of employment that are to be inspected, in each municipality for which the fire department has responsibility.  This code language requires a determination to be made and implies that a list should exist in either written or electronic format.  Terry commented that when conducting two-percent-dues audits, Fire Prevention Coordinators do not always get a list of the public buildings and places of employment that are to be inspected.

Marty recommended not requiring fire departments to generate a list of the buildings to be inspected.  The Council agreed to change the code text to refer to a fire chief determining “those” buildings that are to be inspected, rather than determining “the number of” buildings to be inspected.

Terry noted that neither Comm 14 nor the Statutes have definitions for different types of fire departments, but different types of fire department are referenced in the Statutes and in the Department’s training terminology, fire department database, and two-percent-dues process.  Dave said Comm 14.01 (11) (a) 1. b. on page 14, which addresses training programs for fire departments, could be expanded to include references to paid-on-call and volunteer type departments.  Bob said potential complexities with the Department of Workforce Development argue against codifying definitions for the different types, and Marty likewise noted preference for not codifying them.  Dave suggested revisiting the topic after public hearings are held on the draft rules, and recommended that Bob and the Fire Prevention Coordinators try to resolve the issue in the interim. 

Terry noted that the building occupancy classifications in Comm 14.01 (10) (b) 5. a. to s., on pages 10 and 11, for the occupancies that may be inspected once per year, do not all coincide with the current or upcoming classifications in the Commercial Building Code, NFPA 1, or NFIRS [NFPA 901].  In addition, the classifications in these Comm 14 sections apply retroactively.  Dave said fire inspectors typically have only NFPA 1 to refer to, so Comm 14 should use the NFPA 1 terminology.  Bob noted that these Comm 14 sections also refer to building heights which are based on the number of stories, which historically meant the number of stories above the surrounding grade, but the current Commercial Building Code definition of story includes floor levels down to the bottom of a basement.  Staff noted that unless Comm 14 modifies the NFPA 1 terminology, the NFPA 1 terminology applies.

Dave reported that the definition of a governing authority is being revised for the next edition of NFPA 1, so in the future the Council may want to discuss that definition along with definitions for an authority having jurisdiction and for fire protection and fire prevention services.

In addressing the most significant issues on the staff list, Terry said the scope of Comm 14 should be broadened to match the scope of the corresponding Statutes.  Under section 101.14 (1) (a), the Department “may make reasonable orders for the repair or removal of any building or other structure which for want of repair or by reason of age or dilapidated condition or for any other cause is especially liable to fire, and which is so situated as to endanger other buildings or property and for the repair or removal of any combustible or explosive material or inflammable conditions, dangerous to the safety of any building or premises or the occupants thereof or endangering or hindering fire fighters in case of fire.”

Terry said the International Mechanical Code has requirements for outdoor appliances, but section Comm 64.0001 in the Commercial Building Code deletes those requirements.  Bob said staff are considering several refinements of Comm 64.  Dave said the issue is another example of where NFPA 1 addresses a design and construction topic that is not addressed by the Commercial Building Code.  The Council agreed that the schematic guidance for outdoor storage, as shown on the last page of Terry’s list, should be added to the Comm 14 Appendix.

In discussing referrals and tracking of complaints, Dave suggested developing a process for anonymously filing complaints against commercial building inspectors, similar to the current process for filing complaints against inspectors of one- and two-family dwellings.  Terry asked whether Comm 14 should be revised to define fire inspection, in terms of quality, and initial versus follow-up inspections.  Marty responded that other organizations, including NFPA, do not. 

Due to the number of staff issues and concerns, the Council agreed to table the remaining issues, for discussion at future Council meetings.

Dave asked staff to send the hearing draft of the proposed rules to the Council members before public hearings are held. 

Next meeting: The Council agreed to postpone the next meeting to after public hearings are held on the draft rules. 

Wednesday, February 1, 2006, 9 a.m. to  2:30 p.m., Tommy G. Thompson Commerce Center, Room 3B, 201 West Washington Avenue, Madison, Wisconsin
Council member attendance: John Ashley Excused; Gregg Cleveland Chair P; Marty King P; Dave Lind P; John Periard Absent; Jim Stormer (Todd Blaser Alternate) P
Department of Commerce Staff:Bob DuPont, Joe Hertel, Terry Nolen, Sam Rockweiler      

Gregg Cleveland opened the meeting with a review of the draft progress report for the preceding, December 13th Council meeting.  In reference to the discussion on page four addressing 2 percent fire dues audits, Terry Nolen noted that the procedure for fire departments which are determined to be noncompliant is to add them to the onsite audit schedule for the following year, and this is a proposed procedure rather than a current procedure.  Terry added that under the Wisconsin Statutes [section 101.573 (3) (b)], the corresponding payments to a noncompliant municipality “shall” be reduced.  In reference to the discussion on page five addressing the NFPA summary of changes in the 2006 NFPA 1/Uniform Fire Code, Terry noted the discussion had also included recognition that the new requirements in NFPA 1 section 10.15.11, for crop mazes, would apply to crop mazes which are a place of employment.

A motion was made by Todd Blaser, seconded by Marty King, and passed unanimously, to accept the December 13th progress report, as amended through the February 1 discussion.

Department updates
January 12, 2006, Joint Meeting of the Commercial Building Code Council and Multifamily Dwelling Code Council
Bob DuPont reported that the joint meeting of the two Councils focused primarily on two topics:  fire department access roadways, and sprinklers in residential occupancies.  Bob described how the City of Madison presented its desire to continue having the roadway requirements in the Commercial Building Code, but having the requirements there is counter to the national model of having the requirements in a fire prevention code.  Bob said the Commercial Building Code Council had some concern that having the requirements in Wisconsin’s Fire Prevention Code would create a need for building designers to refer to another separate book.  However, designers likely will need to refer to the Fire Prevention Code for other purposes as well, and the requirements for the access roadways do not directly affect the design of a building.  Marty noted that building designers typically do not request required local approvals for departing from standard roadway requirements.  Bob reported the Multifamily Dwelling Code Council understood that moving the roadway criteria to the Fire Prevention Code would allow local departure from the uniformity which is otherwise statutorily mandated for the Commercial Building Code’s requirements for multifamily dwellings.  Bob said the two Councils asked that the Comm 14 Council further address the roadway topic.

A motion was made by Dave Lind, seconded by Marty King, and passed unanimously to (1) formally recognize the adequacy of the requirements in NFPA 1/UFC for fire department access roadways, and (2) to include the requirements in Comm 14 rather than in the Commercial Building Code.

Bob reported that staff presented the two Councils with cost data for complying with a new requirement in the International Building Code to provide fire sprinklers in all new R-2 occupancies which are below the current thresholds for providing sprinklers.  The data showed that the cost increase for a typical apartment building would range from 1.1 percent (where a municipal water supply is available) to 11 percent (where a private water supply would be needed).  However, those cost increases would diminish where designers utilize the tradeoffs that are available in the Building Code, when providing sprinklers.  Bob reported that the two Councils considered a motion to advance rule changes to the public Hearing stage that do not include the new IBC sprinkler requirement.  The CBCC voting on the motion tied, and the MFDCC voting failed to pass the motion as well. 

Bob reported that the Wisconsin Legislature introduced a bill on January 31 that would make the Commercial Building Code uniform statewide.  Dave asked that the Council receive a copy of the bill, and he noted concern that the bill could increase efforts to use the International Fire Code instead of NFPA 1/UFC.  Staff distributed copies of the bill – 2005 AB 956 – and Bob said he is recommending that the Department neither support nor oppose the proposed bill.
 
Dave asked for the Department’s position on the new IBC sprinkler requirement, and Bob said the position is not established yet.  He added that he agrees with the new requirement, and the construction industry may support the new requirement in order to achieve passage of the legislation for making the Commercial Building Code uniform statewide.  Dave asked whether adjacent states have a statewide-uniform Commercial Building Code, and Bob said they likely do not.  Bob noted that the rationale within the construction industry to use the same model building code in each state applies within and throughout each state as well.  Marty commented that builders typically are no longer arguing that sprinklers are too expensive, and he said that exempting the new requirement in rural areas which do not have municipal water supplies would conflict with sprinklers being needed more there because fire department response times are longer there.  Bob reported the Department’s legal counsel may advise that the Department not only has the authority but also has a duty to propose the new IBC sprinkler requirement, because of a corresponding statutory mandate to be consistent with contemporary model building codes.  Bob added that Wisconsin’s Small Business Regulatory Review Board could review any proposal to adopt the new requirement.  

Bob reported the Department is developing emergency rules for implementing 2005 Wisconsin Act 78, as enacted in the preceding month, which requires sprinklers in specified, privately owned, residential buildings for students at institutions of higher education.  The analysis for the rules will likely reference the new IBC sprinkler requirement for R-2 occupancies. 

Replies From the Secretary
Gregg noted the Council had not yet received, and still desires, a reply from the Secretary’s Office, for the questions Dave Lind submitted by email on October 19, 2005, relating to local use of the IFC in lieu of NFPA 1.  According to Gregg, the Council likewise has not received the Secretary’s position on establishing a “true” State Fire Marshall, as requested six months previously.

January 23rd updated draft rules for repealing and recreating Comm 14
Sam Rockweiler led discussion of the updated draft rules and corresponding summary for repealing and recreating Comm 14, which were emailed to the Council on January 23rd. 

- In reference to the text on page two of the draft, for local use of an alternate model fire code, Gregg noted the Council has not retreated from its motion to delete all references to any alternate model fire code.

- In reference to the text on page one of the draft, for an informational note in section Comm 61.41 (1) for inspections, Dave asked why the text differed from the corresponding note that previously occurred in chapter Comm 50.  Bob explained that the Commercial Building Code, chapters Comm 61 to 65, does not require inspections, and the proposed text references statutory requirements for fire departments to periodically inspect public buildings and places of employment.  Dave and Marty indicated concern that the proposed text would be inadequate for dispelling perceptions that fire inspectors do not have authority to enforce the Commercial Building Code.  There was agreement to expand the note to include the criteria in sections 101.14 (1) and (2) of the Statutes that (1) recognize fire chiefs as deputies of the Department and (2) establish the authority of Department deputies to determine and cause to be eliminated any fire hazard or any violation of any law or order, such as the orders in the Commercial Building Code, relating to fire hazards or to the prevention of fires.  Terry noted that there are three main talking points to this issue: (1) the relationship to the Comm 5 credential for building inspectors, and the lack of recognition of the Wisconsin Technical College certification issued to fire inspectors; (2) the authority of the fire chief as a deputy of the Department to enforce the Comm 61 to 65 requirements relating to fire hazards or to the prevention of fires, along with the duty of fire chiefs, in public buildings and places of employment, to determine and cause to be eliminated any fire hazard or any violation of any law relating to fire hazards or to the prevention of fires; and (3) the lack of local access to the International Code Council model codes, as adopted in Comm 61 to 65, for use by deputies and inspectors in the exercise of their authority or the fulfillment of their duties.  The department has a statutory duty under, section 101.14 (3), to annually conduct training sessions and to provide manuals and other materials and services to assist deputies and inspectors in the fulfillment of their duties.  Bob commented that the IBC includes an “F” designation for content which most directly relates to fire officials, and which is maintained or proposed by the IFC Development Committee. 

Dave asked who is inspecting buildings wherever local ordinances do not require inspections.  Bob explained that inspection of some building components may occur there, such as by the Department’s elevator or boiler inspectors, but the Department’s delivery of the Commercial Building Code in those areas is not as good as the delivery of the one- and two-family dwelling code, which has mandatory inspections statewide.  Bob agreed that inspection of public buildings is inadequate and needs to grow; and he explained that the Department is proposing to conduct a survey of municipalities to see who is currently performing Comm 61 to 65 building inspections.  Dave indicated the lack of inspection conflicts with movement toward uniform codes, and is not offset by construction oversight from registered, supervising professionals.  Bob agreed, and explained that the Department plans to pursue an update and upgrade of the implementation of the Commercial Building Code immediately after completing the current cycle for updating the Commercial Building and Fire Prevention Codes.  Dave noted particular concern for the lack of inspections for the Building Code tradeoffs that are authorized in the IBC.  Bob suggested inspection requirements could be added to the proposed bill that would make the Commercial Building Code uniform statewide.  Terry suggested any future training for all groups associated with Comm 61 to 65 could (1) emphasize and reinforce that fire inspectors have authority to inspect buildings for compliance with the Commercial Building Code and (2) emphasize and reinforce where that authority comes from.  Bob suggested delivering the message of improving inspections to others besides the fire service, such as the League of Wisconsin Municipalities.

-In reference to Comm 14.001 (2) on page two of the draft, for local use of an alternate model fire code, Bob said he recommended to the Secretary to repeal this IFC option, but the Secretary wants to leave the option in.  There are 15 out of 1851 municipalities that support the IFC option. Where the IFC is adopted by a local ordinance, local resources will support it.  The Department will not provide any resources or assistance to support the IFC.  Gregg said the descriptive text for this rule section should include reference to the Council’s motion opposing continuation of the alternate-code option, and he commented that this is the only Commerce code where the Department allows for an alternative option to be used in place of the State’s minimum requirements.  Dave recommended deleting the option from the public hearing draft and then seeing what reasons are advanced by any advocates for continuing the option.  Sam emphasized that the redrafted text for the option discontinues the current special Department order and predetermination of equivalence, for using the alternate code.  Under the redrafted text, the local municipality would review and determine equivalence, but that determination could be reviewed some time later by the Department, such as in response to a complaint or an appeal.

- In reference to deleted text for Comm 14.01 (2) (c) 6. on page three of the draft, which would repeal text that exempts small, community-based residential facilities from Comm 14, concern was noted for the retroactive application to the former 3-8 CBRF classifications.  There was interest in having the corresponding statutory references [101.01 (11) and 101.11].

- In reference to the informational note on page five, describing the scope of NFPA 1 as being broader than Comm 14, Sam explained that staff would revise the note when upcoming rule changes in Comm 10 transfer regulation of small containers and storage tanks for flammable and combustible liquids to Comm 14.  Concerns were noted about the authority and relationship between the Comm 10 “authorized agent” and the fire inspector with regards to determinations of fire safety compliance under Comm 10.  As at previous Council meetings, Dave recommended expanding the scope of Comm 14 to include any design and construction requirements in NFPA 1 and 101 that are not addressed in the Commercial Building Code.  Bob responded that those requirements should be discussed for inclusion in the Commercial Building Code rather than in Comm 14.  Bob noted that Dave could address that discussion in his role as a member of the Commercial Building Code Council.

- In reference to the draft text in Comm 14.01 (10) (b) 8. on page 12, for fire safety inspections, the Council agreed that the text should refer to authorized deputies of the Department and to authorized representatives of local fire departments, which could include private inspection agencies.

- In reference to the draft text in Comm 14.01 (10) (c) on page 12, for fire incident reports, Terry noted that administration of section 101.141 of the Statutes was transferred to the Department from the Department of Justice in 1975.  The law requires the Department to maintain records of all fires occurring in Wisconsin and to make the records available to public inspection.  The law does not require fire departments to submit the reports.  Bob noted he believes the Department has sufficient authority to require the reports to be submitted under administrative rule.  Terry said he understood Bob’s comments.  Terry thought the agency’s rule-making authority is limited by chapter 227 of the Statutes, if the rule is in conflict with the intent of the law.

- In reference to the draft text in Comm 14.01 (10) (b) 5. s. on page 11, for inspecting seasonal or periodic occupancies, Sam noted the dictionary definition for these terms would apply.  Terry questioned whether the criteria should also apply to temporary occupancies, or to buildings in transition, such as temporarily unoccupied buildings.  The Council agreed to expand the criteria on page 10 for vacant buildings, to also apply to temporarily unoccupied buildings.  No inspection-frequency decision was reached for the temporary uses of a building or portion of a building that are addressed in Comm 14.01 (2) (f).  Terry commented that some of the occupancy classifications under Comm 14.01 (10) (b) 5. on pages 10 and 11 differ somewhat from the occupancy classifications in the IBC.  Some of the occupancy classifications were different before Wisconsin’s adoption of the IBC became effective on July 1, 2002.  According to Terry, the retroactive application of Comm 14 for this topic causes confusion because the classification categories do not line up.

- In reference to the draft text in Comm 14.01 (10) (b) 9. on page 12, for inspection authority, the Council agreed that the text should reference section 101.14 (2) of the Statutes, which recognizes fire chiefs as authorized deputies of the Department.

- In reference to the draft text in Comm 14.01 (10) (b) 5. (intro.) on page 10, for inspection frequency exceptions for other municipalities, Terry questioned the Council for clarification of their intent that the interval between those inspections should not exceed 15 months.  The Council reaffirmed their position that the proposed language is needed, to prohibit having nearly two years lapse between inspections.  Currently, a fire department can perform an inspection on January 1 in one calendar year and not have to perform the next inspection until December 31 in the next calendar year.

- In response to a question on where the adopted codes and referenced standards and publications are addressed in the proposed draft, Sam explained that Comm 14.01 (2) (a) 3. on page five specifies the application of the adopted codes and referenced standards.

- In reference to the draft text in Comm 14.01 (11) (f) 3. on page 16, for the timing of a fire dues audit appeal, the Council agreed that the text should not include references to Fire Prevention Coordinators or their supervisor.

- The Council agreed to retain the signage requirements in NFPA 1 section 10.12, as use requirements for premises, shaftways and stairways.  The Council concluded that the requirements would not conflict with the Commercial Building Code.

- The Council recommended repealing the general prohibitions currently in Comm 14.03 (1), relating to interference with firefighting and firefighting equipment, because NFPA 1/UFC adequately includes them.  The Council also recommended moving the current reprint of corresponding statutory references and penalties to the Appendix.

- The Council agreed to accept the draft text on page 19 for cross-connection control devices.

- In discussing the draft text in Comm 14.11 for allowing portable, fuel-fired, unvented heating appliances, Dave reported his department has transported people sickened from corresponding lack of ventilation.  Other comments referred to a lack of adequate air changes and carbon monoxide detection with using the appliances at construction sites, a lack of proper maintenance of carbon monoxide detection equipment, and problems with carbon atmosphere interference.  The Council recommended revising the draft text, to require adequate ventilation when using the appliances.

- The Council recommended deleting the draft text on page 20 for exhibition of motor vehicles, because NFPA 1/UFC has adequate corresponding requirements.

- In discussing the draft text in Comm 14.30 for the intersection between Comm 14 and Comm 10, the Council recommended (1) not modifying the requirements for motor fuel dispensing facilities and repair garages in NFPA 1 chapter 30, and (2) referring to Comm 10, in an informational note, for additional requirements.  The Council similarly recommended addressing any requirements for refueling in Comm 14.42 (1), and any requirements for flammable and combustible liquids in Comm 14.66, in the same manner.  The Council recommended deleting the draft text for defueling, in Comm 14.42 (2), because NFPA 1/UFC has adequate corresponding requirements

- In discussing the draft text in Comm 14.53 for the intersection between Comm 14 and Comm 45, the Council recommended (1) not modifying the requirements for mechanical refrigeration in NFPA 1 chapter 53, and (2) referring to Comm 45 for additional requirements, but only in the multiple-code informational note on page 7. 

- In discussing the draft text in Comm 14.69 for the intersection between Comm 14 and Comm 40, the Council recommended (1) not modifying the requirements for liquefied petroleum gases and liquefied natural gases in NFPA 1 chapter 69, and (2) referring to Comm 40 for additional requirements, but only in the multiple-code informational note on page 7.

- Based on the recommendation to not have informational notes in Comm 14.53 and 14.69 for referring to Comm 45 and 40, the Council recommended likewise referring to Comm 10 only in the multiple-code informational note on page 7, rather than also in informational notes in Comm 14.30, Comm 14.42, and Comm 14.66.  Terry suggested addressing Comm 10 in a similar manner in the Commercial Building Code.

- A motion was made by Dave Lind, seconded by Marty King, and passed unanimously, to (1) continue recognizing the Council’s objection to allowing local use of an alternate model fire code, and (2) to proceed to the public hearing stage with the draft rules for repealing and recreating Comm 14, after amending them to reflect the meeting’s discussions.

The Council asked staff to email the amended draft rules to the Council members for affirmation, with a request for each member to use a reply-all response, before transmitting the rules to the Secretary for acceptance in the public hearing draft.  Staff distributed a timeline for the remaining steps in the rulemaking process, which projected a hearing date between April 10 and 15.

Next meeting: The Council agreed to meet again prior to the public hearing, to discuss unresolved issues and a distributed, staff list of unaddressed issues.  The next meeting date was tentatively scheduled for March 7, at the same location and for the same time period.

Tuesday, December 13, 2005, 9 a.m. - 2:30 p.m.,  Thompson Commerce Center, Room 3B, 201 West Washington Avenue, Madison, Wisconsin

Council Member Attendance: John Ashley-Present; Gregg Cleveland, Chair-P; Marty King (Tod Doebler, Alternate)-P; Dave Lind-P; John Periard-Absent; Jim Stormer (Todd Blaser, Alternate)-P

Guests:Ed Erickson-Marshfield Fire Department

Department of Commerce Staff: Bob DuPont, Joe Hertel, Terry Nolen, Sam Rockweiler

Gregg Cleveland opened the meeting with a review of the draft progress report for the preceding, November 15th Council meeting.  In reference to his recommendation on page 7 to apply any NFPA 1 design and construction requirements that are not addressed in Wisconsin’s Commercial Building Code, and in reference to the corresponding discussion on page 8 for the Note proposed in Comm 14.10, Dave Lind noted his recommendation had also included applying any NFPA 101 design and construction requirements which are not addressed in the WCBC.  Dave explained that his statement on page 4 about the number of references in the International Building Code to the International Fire Code was based on a count produced by NFPA staff. Terry Nolen commented that (1) the first sentence in the last paragraph on page 2, relating to AHJ duties and responsibilities, should also have included reference to the authority having jurisdiction and the governing authority; and (2) the second paragraph on page 3 relating to doing a full comparison of the two model code suites should have included reference to the Proposal C, the 2001 agreement between the Department of Commerce and the Wisconsin Fire Service.
A motion was made by Dave Lind, seconded by John Ashley, and passed unanimously, to accept the October 18th progress report, as appended through the December 13th discussion.

Department updates
Natural Christmas trees: There was agreement that the Department’s informational notice for natural-cut Christmas trees should be revised to refer to removing 1 inch from the bottom of the trunk, for water absorption, to be consistent with that dimension in Comm 14, rather than the ½-inch dimension in NFPA 1.  Terry welcomed any further comments for improving the notice.  There was recognition that NFPA interprets section 10.14.2 in the 2006 NFPA 1 as not providing for AHJ discretion on the use of natural cut Christmas trees, and this issue may need to be revisited.

Alternate use of the IFC: Bob Dupont reported the Department is considering whether to discontinue the current option in Comm 14 that allows municipalities to adopt IFC requirements in lieu of NFPA 1.  Gregg emphasized that the Council remains opposed to continuing the option.

Mandating fire sprinklers in student housing: Proposed Assembly Bill 544, which would expand the range of new and existing student housing that must be protected with fire sprinklers, was reported as being passed by the Wisconsin Senate, with an eight-year period to achieve compliance in existing buildings.

Fire sprinklers in all new R-2 occupancies: Bob reported that the Department’s Building Code Fire Protection Systems Advisory Council has recommended not modifying the 2006 IBC requirement to provide fire sprinklers in all new R-2 occupancies.  Bob explained that the Wisconsin Builders Association has responded with a written opinion from their legal counsel stating that the Department is prevented from adopting that requirement because that requirement would be more restrictive than the thresholds in the Wisconsin Statutes for providing sprinklers in multifamily dwellings.  According to Bob, the Department disagrees with that opinion, and plans to discuss the topic further with its Commercial Building Code Council and Multifamily Dwelling Code Council at a January 2006 meeting.  Corresponding cost data and insurance rate comparisons are being compiled for that discussion.  Bob said the Statutes do not prohibit the Department from adopting more restrictive sprinkler thresholds.  He added that the Department has previously relied on its general authority to make buildings safe, through administrative codes, in adopting requirements for safety glazing and for smoke detection equipment that also are more restrictive than corresponding statutory criteria.  Terry suggested that if a corresponding Department legal opinion is generated, it should also address preexisting local sprinkler ordinances which are more restrictive than the State-level statutory thresholds.

December 9th updated draft rules for repealing and recreating Comm 14:Sam Rockweiler led discussion of the updated draft rules and corresponding summary for repealing and recreating Comm 14, which were e-mailed to the Council on December 9th.
Gregg questioned whether the draft rules adequately convey that Comm 14 applies the design and construction requirements in NFPA 1/Uniform Fire Code for fire apparatus access roads.  There was interest in clarifying this application further in proposed section Comm 14.01 (2) (a), and in adding a corresponding informational note in the Commercial Building Code, Comm 61 to 65.  Bob emphasized that if the IBC does not include design and construction requirements, for buildings, that are included in NFPA 1 or 101, those requirements should be considered for including in Comm 61 to 65 rather than in Comm 14.
Gregg recommended that any Department code interpretations which are issued under Comm 14.01 (2) (c) should be formally written.  Bob noted that in preceding Council meetings, there was discussion that Department interpretations which are posted in a question and answer format on a Department Web site could be accompanied with a notice that each Q&A is the official position of the Department.  Terry emphasized the importance of archiving all official interpretations and positions in order to determine the code of the day and its application.  There was interest in posting archives on a Commerce Web site for a minimum of fifteen months, and to develop a method for copying the information to local agents of the Department.  Gregg emphasized that local officials prefer to have written interpretations from the Department in advance of enforcement actions, rather than have those actions interrupted by a subsequent, contravening Department interpretation.

John asked whether Department interpretations are issued by different Department staff than the staff that provide routine explanations.  Bob responded that explanations typically come from plan reviewers and inspectors, and issuance of formal interpretations has ranged from the bureau-director level, to the Division Administrator, to the Department Secretary.  Dave recommended narrowly focusing each building or fire code Q&A, or other written interpretation, on a specific topic or subcategory, and posting that information together in one location on a Commerce Web site, with a corresponding link on each of the Web sites for individual programs in the Safety and Buildings Division.

Terry agreed with deleting the reference in Comm 14.01 (2) (b) 4. to having Comm 61 to 65 prevail over any differences in Comm 14.  However, difficulty still remains in determining which NFPA requirements are considered as addressing design and construction, and which are considered as addressing use, operation and maintenance.

John questioned whether building owners should consider hiring private-sector inspectors to audit buildings in order to address the building owners’ responsibility to maintain their building and premises in compliance with Comm 14.  There was recognition that this compliance does not relieve the owner from complying with the other administrative rules established by the Department or other state agencies.  Dave generally agreed that such audits can be helpful, and he recommended that they focus on risk analysis.  According to Dave, some fire departments are performing home inspections upon request, and are then making suggestions rather than looking for and citing code violations.

Dave recommended expanding the list of occupancies in Comm 14.01 (10) (b) 5. that are eligible for a once-per-calendar-year inspection frequency, to address seasonal occupancies, and to require inspection of those occupancies during an occupancy period.  There was recognition that the purpose of a fire prevention inspection has been established, but the terms fire prevention inspection, fire inspection or inspection have not been defined for purposes of applying the inspection-frequency language.  Bob noted the inspection frequency in subdivision 5 should also apply to first-class cities in subdivision 4, and where the local ordinances for annual inspection in subdivision 6 are adopted.  Dave noted that the proposed frequency in subdivision 6 would allow nearly 2 years between inspections, and there was agreement that no more than 12 months should occur between those inspections.  There also was agreement that the frequency in subdivision 6 should be recognized in subdivision 3 as being an exception to the inspection frequency required in subdivision 3.
Gregg asked whether a quorum should be required in Comm 14.01 (11) (f) for meetings of the proposed appeals board for two-percent-dues audits.  There was agreement to expand the draft rule to require a majority vote of the board for conducting business.  Joe Hertel questioned whether the hearing locations authorized under 14.01 (11) (f) 8. should be limited to Madison, and there was agreement to limit the locations to those that are agreed to by the Department.  Bob asked whether the appeals process should be available to jurisdictions that self-certify noncompliance.  Gregg explained that the process was intended to be avail