Mark K said:
Individuals have used IBC Section 104.11 to justify the use of these products based on claims of equivalency and intent. Section 104.11 was intended to deal with unusual situations the problem is that building officials and manufacturers are using this section to justify de facto code changes to the adopted codes allowing the use of these products on a regular basis. This is illegal.
The ICC publication “Legal Aspects of Code Administration” makes the point that provisions intended to deal with unusual situations cannot be used to modify the building code. This is because of the need for due process as required by the US Constitution. Thus for products that are not addressed in the code this longer code cycle will mean that it will take longer for many new products to become code compliant.
Righter11 stated “I think that new products can easily be approved under AMM, so a 5 year vs 3 year cycle doesn't matter. If a new product comes out the day after the codes are published, we can consider and approve it under AMM regardless of when the next cycle is.”
This reflects a common misconception. When a building official develops a policy to automatically approve a product that is not addressed in the approved building code he is effectively modifying the building code. The building official does not and cannot have that authority for the reason stated above. Because the requirement for due process comes from the US Constitution neither the state or the local governments can change this fact.
Just because a provision is in the building code does not make it legal.
Related to this is the belief that ICC-ES Evaluation Reports make the product code legal. ICC-ES is a private entity and has no authority to make changes to the locally adopted building codes. This must be done by the legislative body that adopted the building code. For the reasons noted above building officials who automatically allow products with evaluation reports are acting illegally.
If you want to shorten the time for adoption of new products you need to shorten the code development process, shorten the code adoption process, and for the model codes to have a preference for performance criteria as opposed to prescriptive provisions. States, and cities and counties where the codes are adopted locally, can be part of the solution if they are willing to adopt interim amendments.
I have to respectfully disagree.
IBC SECTION 104
DUTIES AND POWERS OF BUILDING OFFICIAL
[A] 104.1 General. The building official is hereby authorized
and directed to enforce the provisions of this code. The building
official shall have the authority to render interpretations
of this code and to adopt policies and procedures in order to
clarify the application of its provisions. Such interpretations,
policies and procedures shall be in compliance with the intent
and purpose of this code. Such policies and procedures shall
not have the effect of waiving requirements specifically provided
for in this code.
Nothing illegal about rendering interpretations.
I don't see my actions as rewriting the code.
You also state "he is effectively modifying the building code. The building official does not and cannot have that authority...."
Again I disagree. 104.10 gives exactly that authority.
I believe the "it takes too long to recognize emerging technologies with a longer code cycle" arguement is flawed and invalid. Errata, emergency rule making, AMM, modification, interpreation by BO and policy are all tools that can be used to address this arguement.
Thanks for the discussion though.
like i said before. Give me a 5 year code cycle and charge me 30-40 % more for the books. Keep my per year book cost the same. My expense and headache is on the indirect side.