Update on AGA/American Public Gas Association (APGA) Appeals of International Code Council (ICC) Pro-Electrification Energy Code Proposals.
As previously reported in End Use Codes and Standards Updates, AGA and APGA filed  joint appeals addressing four code actions that presented two major issues, which AGA and APGA contend should have been prevented to be published by the ICC staff during the Group B Code Development process.  They are:
·                Potential violations of federal pre-emption of minimum efficiency standards for appliances and equipment (RE107 and RE126), and
·                Setting of code requirements that are outside the boundaries of the “Intent” sections of the IECC (RE147-19 and CE217-19, Parts I and II).
The AGA and APGA appeals are seeking removal of specific proposed code provisions in the next edition (2021) of the International Energy  Conservation Code (IECC) that are detrimental to natural gas applications and essentially promote “electrification”.  Conducted virtually via Webex Event,  the AGA and APGA joint appeals on alleged violations of federal pre-emption has also been appealed by AHRI and National Association of Home Builders (NAHB). That appeal was heard on August 31st. On September 4th, the Appeals Board issued its decision  on the federal pre-emption provisions and they “found that the appellants did not provide ample information of a violation of any written process or procedure.” However, the Appeals Board “ further recommended that the ICC Code Council Board of Directors consider whether the code change in question is consistent with the spirit, intent and the mission of the Code Council, its codes and standards. The ICC Board of Directors heard the Appeals Board decision on Wednesday September 16  along with testimony from AGA/APGA, AHRI, NAHB and Leading Builders of America  and we are pleased that while the Code Council Board found no procedural violations on the two code proposals and denied the appeal, they did however “determine that, upon review, including potentially preempted provisions in the I-Codes is inconsistent with the spirit, intent and mission of the Code Council.”  They also found that “the codes explicitly state that they do not nullify any provisions of local, state or federal law.” Accordingly, the Board determined that the approved language from RE107-19 and RE126-19 will not be included in the 2021 International Residential Code (IRC) or International Energy Conservation Code (IECC).
On September 3rd, the Appeals Panel held a hearing on the appeals of RE147-19 and CE217-19, Parts I and II.  AGA/APGA, NAHB and LBA provided testimony in support of the appeals.  On September 24, 2020, the  Appeals Panel issued its recommendations on both proposals and the following is the recommendation on these two proposed revisions:
  • Recommendations on RE147-19: The Appeals Board recommends sustaining the appeals and recommends that the Code Council Board of Directors find the following: ƒ In accordance with the provisions noted in Section 1.3 of CP 28, the proposed code change in question is not within the current “general purpose and scope” of the IECC and Chapter 11 of the IRC. The language should be excluded from the 2021 I-Codes. ƒ The issue of scoping should be reviewed for future editions of the I-Codes.
  • Recommendation on CE217-19, Parts I and II: The Appeals Board recommends sustaining the appeals and recommends that the Code Council Board of Directors find the following: ƒ In accordance with the provisions noted in Section 1.3 of CP 28, the proposed code changes in question are not within the current “general purpose and scope” of the IECC and Chapter 11 of the IRC. The language should be excluded from the 2021 I-Codes. ƒ The issue of scoping should be reviewed for future editions of the I-Codes
The ICC Board of Directors will hear the Appeals Panel’s recommendations at it Board of Directors meeting on October 5, 2020 and make a decision on those recommendations. AGA/APGA, NAHB and LBA will testify in support of the Appeals Panel’s recommendations and hopefully these provisions will also excluded from the 2021 ICC Energy Codes.  We will provide their decision as soon as it is issued.
DOE Issues Yet Another Request for Comments on Its Proposed “Interpretive Rule” on Product Classes and Consumer Utility.
Yesterday, DOE’s Office of Energy Efficiency and Renewable Energy (EERE) issued a “Supplemental Proposed Interpretive Rule”requesting comments on its July 11, 2019 “Notice of Interpretive Rule” in which it granted a gas industry petition provision requesting an interpretive rule on whether venting systems for various product categories of gas-fired appliance represent consumer “features” and unique product utility.  The petition, discussed in a November 1, 2018 notice of the petition, was authored by American Public Gas Association, Spire, Inc., the Natural Gas Supply Association, AGA, and the National Propane Gas Association, sought the DOE interpretation on whether loss of such features would constitute a loss of consumer features and utility, which would be unlawful under the Energy Policy and Conservation Act, Sections 6295 and 6313.  The November 1, 2018 requested public comments, which DOE receive from a wide variety of stakeholders as did the July 11, 2019 Notice.  Yesterday’s Supplemental Notice again requested comments, providing only additional background and discussion of comments DOE received and considerations effecting how DOE might pursue rulemaking on gas furnaces and water heaters.  In the notice, DOE suggested pursuing a broader approach to addressing venting “alternatives” across combustion appliances and equipment in light of its interpretative rulemaking, but it provided no proposals for specific appliances and equipment or for how venting systems would be addressed.  As a consequence, little tangible progress has been suggested by the DOE action with respect to product class definition based on venting system type.
Reaction to yesterday’s notice has been subdued.  One energy efficiency organization, while accusing  DOE of moving “one step closer … to blocking a future administration from cutting the amount of natural gas wasted by furnaces and water heaters,” also characterized the supplemental notice as “refining the idea [of recognizing venting systems as a basis for product classes] and even making it slightly worse [emphasis added].  One legal expert who worked on development of the gas industry petition commented, “…I it [sic] did get the sense that DOE’s summary of its response to our petition sounded a little better than its original response to our petition.  I’m not sure any of the points are new, but there seemed to be a little more clarity and a little less equivocation.” Comments on the SNOPR are due October 26, 2020.
BECS Committee members and staff has suggested that the DOE notice effectively “kicks the can down the road” on rulemaking that could implement a two-product class approach for specific appliances based upon venting systems.  Doing so might expose DOE to having to produce a final rule for these products based upon its current Supplemental Notice of Proposed Rulemaking, which has been on the docket since 2016 and is based upon a flawed “small furnace” product class differentiation, which is incompatible to current statutory requirements for product classes based upon size and is contradictory to the gas industry proposal.  DOE could be forced into promulgating Supplemental Notice proposal in final standards as a result from threatened lawsuits by energy efficiency organizations challenging DOE for delaying rulemaking in conflict with its statutory timelines.  BECS staff also notes that the interpretive rule activity is under a different docket than the furnace rule docket, suggesting that it is a step removed from an outcome that might affect the furnace rulemaking.
State Codes Activity Update
[This is a weekly feature of the “Friday Update” covering state code calendar activities as presented by the online utility “Fiscal Note,” which is sponsored by APGA and AGA Code and Standards.]
Recent Activity Alerts
A rule currently in development would amend Part 1203 of Title 19 of the New York Codes, Rules and Regulations. The Department of State invites public participation in the rule development process.
Recent Code Body Meetings
State Building Code Council (SBCC) Meeting
NY State Fire Prevention and Building Code Council
Bills with Recent Activity
Bill #
Bill Title
Primary Sponsor(s)
Last Action
Last Action Date
Building Codes
Joe Jefferson (D) Russell Ott (D) Josiah Magnuson (R) Bill Chumley (R) Mike Burns (R)
In Senate; Read third time and returned to House with amendments
Summary: This bill adds Section 6-9-67. Structures without a commercial kitchen used in agritourism activity as defined by Section 46-53-10 shall fall under the group A-3 classification as defined in the 2015 International Building Code. Such structures may accommodate up to three hundred guests without installing a sprinkler system.
An Act amending the act of March 4, 1971 (P.L.6, No.2), known as the Tax Reform Code of 1971, providing for mechanical insulation installation tax credit.
Karen Boback (R) Tom Caltagirone (D) Mike Driscoll (D) Frank Farry (R) Josh Kail (R) Aaron Kaufer (R) Jim Marshall (R) Tom Mehaffie (R) Natalie Mihalek (R) Jack Rader (R) Hank Readshaw (D) Mike Reese (R) Jared Solomon (D) Todd Stephens (R) Martina White (R) K.C. Tomlinson (R) Wendi Thomas (R) Todd Polinchock (R) Meghan Schroeder (R) Craig Staats (R) Jeanne McNeill (D)
In House; Referred to FINANCE
Summary: Providing for tax credits in certain cases; conferring powers and imposing duties upon the Department of Revenue, certain employers, fiduciaries, individuals, persons, corporations, and other entities; prescribing crimes, offenses, and penalties,” providing for mechanical insulation installation tax credit.