STATE OF WISCONSIN
DEPARTMENT OF SAFETY AND PROFESSIONAL SERVICES
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IN THE MATTER OF RULEMAKING : PROPOSED ORDER OF THE
PROCEEDINGS BEFORE THE : DEPARTMENT OF SAFETY AND
DEPARTMENT OF SAFETY AND : PROFESSIONAL SERVICES
PROFESSIONAL SERVICES : ADOPTING RULES
: (CLEARINGHOUSE RULE )
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PROPOSED ORDER
An order of the Department of Safety and Professional services to repeal SPS 361.02 (4), 361.03 (15) (b), 361.31 (2) (b) 2. b., (2) (c), 362.0202 (2) (h), 362.0504, 362.0506, 362.0603, 362.0705, 362.0713, 362.0902, 362.0903 (4) (a) 2., (b), (5) (cm), (7) (b), (12), (16) and (17), 362.0904 (3), 362.0915, 362.1004, 362.1010, 362.1013, 362.1029, 362.1206, 362.1210 (2m), 362.1506, 362.1507, 362.1607, 362.1613, 362.1700, 362.1807, 362.1808, 362.1908, 362.2503, 363.0401 (5), 363.0403 (5), (6), (8), (9), (10), and (11),363.0406, 363.0407, 363.0408, 363.0502, 363.0503 (1), (2), (3), and (4), 363.5402, 363.5502, 363.5503, 364.0300 (1) (Note), 364.0506 (2) (c), 364.0507 (2), 364.0802, 364.1500 (1m), (2m), and (Note), 366.0605, 366.0902 (2), 366.0903, 366.0904, 366.1204, and 366.1301 (2); to renumber SPS 362.0202 (1) (a), 362.0202 (2) (f), 362.0202 (2) (i), 362.1405, 362.3307, 366.0603, 366.0909, and 366.0908; to renumber and amend SPS 362.1101, 362.1107, 362.1111, 362.1203, 362.1204, 362.1503, 366.0400, 366.0600, 366.0606, 366.0609, 366.0804, 366.0809, 366.0810, 366.1010, 366.1011, 366.1012, 366.1205, and 366.1401; To amend SPS 361.03 (12) (intro), (12) (a), (13) (b), (14) (intro), (a), (b), (c), (d), and (Note), 361.03 (15) (g), 361.04 (12), (13), (13g), and (14), 361.05 (1), (2), (3), (4), and (5), 361.30 (1) (b) 1., 361.31 (2) (b) 1., (3) (a), (3) (Note 1), (4) (a) 1., 361.32 (1) and (2), 361.36 (1) (a), (b), (c), (d), (e), (f), and (g), 361 Subchapter V (title), 361.45 (title), 361.46 (title), (1), (2) (intro), (b), (f), (g), and (3), 361.47 (1) (a), (b), (2) (title), (a), (b), (3) (a) 1., 3., (b) 3., (5), (6) (a), (c), (d) 1., (e), and (f), 361.48 (intro.), 361.485 (1) and (2), 361.51 (8) (b), 361.60 (5) (c) 3., 362.0308, 362.0310, 362.0412 (1) and (2), 362.0415 (1), 362.0423, 362.0903 (1), (2), (3), (4) (a) (intro.), (5) (a), (b) 1., (Note 1), (9), (10) (a), and (14), 362.0907 (3), (5) (a), and (b), 362.1006 (1) (intro.) and (b), 362.1015, 362.1020 (intro) and (2), 362.1603 (1) and (3), 362.1802, 362.1806, 362.1810 (8), 362.2211, 362.2510, 362.2902 (1) (a) 2., (d), (e), and (2) (a), 362.3001 (1) and (2), 362.3002 (1) (a) 2. b., 362.3500 (3), 362.3600 (1), 363.0101, 363.0302, 363.0303 (1) (Note), (2) (a) 1., 2., 3., and 4., 363.0401 (1) (b), (2), and (3), 363.0403 (1), (2), (3) (intro.), (b), (4), and (7) (intro.), 363.0600 (1), (2), (3), and (4), 363.5101, 363.5302, 363.5303 (1) (Note), (2) (a) 1., 2., 3., and 4., 363.5403 (2), 363.5405, 363.5600 (1), (2), (3), and (4), 364.0202 (1) (f), 364.0300 (1), 364.0309 (1) (table) a., 364.0401 (2) (b), 364.0402 (table), 364.0403 (5) d. 1., 364.0403 (table) c., and m., 364.0501 (3) (intro.) and (6), 364.0505, 364.0606 (1) and (2), 364.0701, 364.1500 (3), 365.0800, 365.0900, 366.0101 (4) (b) and (c), 366.0701, 366.0702 (1) and (2), 366.0902 (1), 366.1201 (1) and (2), 366.1301 (3) and (4), and 382.40 (5) (b); to repeal and recreate 361.31 (1) (b) 2. (Note 2), 361.36 (2), 362.0202 (2) (c), 362.0706, 362.0903 (18) (b) and (c), 362.1009, 362.1011, 362.2902 (4), 363.0402, 363.0404, 364.0300 (2), and 364.0403 (table); to create SPS 361.02 (2) (Note), (3) (i), and (Note), 361.03 (15) (g) (Note), 361.04 (13w), 361.45 (Note), 362.0202 (1) (d), 362.0420, 362.0717 (3), 362.0903 (4) (a) 1m., 362.0903 (5) (c) and (d), 362.0903 (18) (am), 362.0903 (19), (20), (21), (22), and (23), 362.0907 (6), 362.0912, 362.0913, 362.1006 (6), 362.1016, 362.1020 (4), 362.1030, 362.1209 , 362.1210 (3m), 362.1603 (7), 362.2902 (1) (a) 6., (d) (Note), (2) (c), and (7), 363.0403 (12), (13), 364.0402 (table) (Note), 364.0403 (5) (c) 6., 364.1500 (4), 365.0501 (4), 366.0303, 366.0306, 366.1201 (1) (a), (b), and (c), and SPS 382.40 (bm), relating to Commercial Building Code and affecting small business.
Analysis prepared by the Department of Safety and Professional Services.
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ANALYSIS
Statutes interpreted: Sections 101.02 (15)(j), 101.023, 101.025, 101.027 (2), 101.12, and 101.13, Stats., which relate to standards for the approval, construction, alteration, addition to, repair, maintenance, and inspection of public buildings and places of employment and components.
Explanation of agency authority:
Section 101.02 (1), Stats. – The department shall adopt reasonable and proper rules and regulations relative to the exercise of its powers and authorities and proper rules to govern its proceedings and to regulate the mode and manner of all investigations and hearings…” Section 101.02 (15) (j), Stats. – “The department shall ascertain, fix and order such reasonable standards or rules for constructing, altering, adding to, repairing, and maintaining public buildings and places of employment in order to render them safe.” Section 101.025, Stats. – Establishes requirements for standards for ventilation in public buildings and places of employment. Section 101.027 (2), Stats. – “The department shall review the energy conservation code and shall promulgate rules that change the requirements of the energy conservation code to improve energy conservation. No rule may be promulgated that has not taken into account the cost of the energy conservation code requirement, as changed by the rule, in relationship to the benefits derived from that requirement, including the reasonably foreseeable economic and environmental benefits to the state from any reduction in the use of imported fossil fuel. The proposed rules changing the energy conservation code shall be submitted to the legislature in the manner provided under s. 227.19. In conducting a review under this subsection, the department shall consider incorporating, into the energy conservation code, design requirements from the most current national energy efficiency design standards, including the International Energy Conservation Code or an energy efficiency code other than the International Energy Conservation Code if that energy efficiency code is used to prescribe design requirements for the purpose of conserving energy in buildings and is generally accepted and used by engineers and the construction industry.” Section 101.128 (2) (b), Stats. – “The department shall promulgate rules that establish standards that the owner of a facility where the public congregates shall meet to achieve the equal speed of access required under par. (a).” Section 101.13 (1m) (a), Stats. – “Except as provided in par. (b), the department shall by rule provide minimum requirements to facilitate the use of public buildings and places of employment by physically disabled persons where traffic might reasonably be expected by such persons.” Sections 101.132 (2) (c) 1. and (e) 1., Stats. – “The department shall promulgate rules that specify the materials to be included in the submittal, the procedures to be followed upon receipt of a submittal, reasonable time limitations for reviewing submittals and issuing or denying permits and qualifications for authorized representatives.” “The department shall promulgate rules establishing minimum accessibility requirements for the design and construction of covered multifamily housing and the remodeling of housing that are consistent with this subsection, that incorporate the applicable standards under ANSI A117.1 and that set forth permit and variance procedures for purposes of par. (c).”
Section 101.14 (4) (a), Stats. – “The department shall make rules, pursuant to ch. 227, requiring owners of places of employment and public buildings to install such fire detection, prevention or suppression devices as will protect the health, welfare and safety of all employers, employees and frequenters of places of employment and public buildings.” Related statute or rules:
Chapter SPS 318, Elevators, Escalators, and Lift Devices. Chapter SPS 328, Smoke Detectors and Carbon Monoxide Detectors. Plain language analysis:
The primary objective of this rulemaking project is to evaluate and update the Wisconsin Commercial Building Code, chapters SPS 361-366. This rulemaking update intends to keep this Code consistent with dynamic, contemporary regional and national construction and fire prevention practices and standards, and with legislation enacted since the previous update of this Code. The update is also needed in order to meet the content and timeliness requirements for the energy conservation provisions of this Code as established in sections 101.027 (2) and (3) of the Wisconsin Statutes.
In addition, the project evaluated other administrative code chapters that may be affected by this update of the Wisconsin Commercial Building Code including, at least, chapters SPS 303, 305, 314, 316, 318, 340, 343, and 345, relating to administrative procedures; licenses, certifications and registrations; fire prevention; electrical; elevators, escalators, and lift devices; gas systems; boilers and pressure vessels; anhydrous ammonia; mechanical refrigeration; rental unit energy efficiency; solar energy systems; cleaning methods for historic buildings; buildings constructed prior to 1914; and plumbing; respectively.
This evaluation identified a need to move the authority for certain plumbing requirements out of ch. SPS 362 of the Commercial Building Code and into ch. 382 of the Wisconsin Plumbing Code. That change is incorporated into this rule project to ensure that the removal from the Commercial Building Code and insertion in the Plumbing Code happen simultaneously to avoid either a gap or overlap in regulation. Summary of, and comparison with, existing or proposed federal regulation:
Energy Conservation Requirements - Section 304 (a) of the Energy Conservation and Production Act (ECPA) (Pub. L. No. 94-385), as amended, requires the US Department of Energy (DOE) to establish energy conservation standards and encourage states and local governments to adopt and enforce those standards through their building codes and other construction control mechanisms.
42 U.S.C. 6833 requires the DOE secretary to review any new revision of the International Energy Conservation Code (IECC) and American Society of Heating, Refrigerating, and Air-Conditioning Engineers (ANSI/ASHRAE/IESNA) Standard 90.1 within 12 months after the publication date to determine whether the revision will improve energy efficiency in commercial buildings. If the DOE Secretary determines that the standard will achieve energy savings, each state is required to review the standards no later than 2 years after publication and certify that the state has reviewed and updated provisions of the state’s commercial building code to incorporate provisions of the revised standards to the extent that the code will meet or exceed the revised standard. DOE issued a determination on February 27, 2018, that ASHRAE Standard 90.1-2016, as compared to ASHRAE Standard 90.1-2013, would achieve greater energy efficiency in buildings subject to the code. DOE estimates national savings in commercial buildings of approximately 8.3% energy cost savings, 7.9% source energy savings, 6.8% site energy savings, and 4.2% carbon emissions savings.
DOE issued a determination on July 2, 2021, that ASHRAE Standard 90.1-2019, as compared to ASHRAE Standard 90.1-2016, would achieve greater energy efficiency in buildings subject to the code. DOE estimates national savings in commercial buildings of approximately 4.3% energy cost savings, 4.3% source energy savings, 4.7% site energy savings, and 4.2% carbon emissions savings.
On December 10, 2019, DOE issued a determination that the 2018 IECC, as compared to then 2015 IECC would achieve greater energy efficiency in buildings subject to the code as compared to the 2018 IECC. DOE estimates national savings in residential buildings of approximately 1.97% energy cost savings, 1.91% source energy savings, 1.68% site energy savings.
On July 19, 2021, DOE issued a determination that the 2021 IECC, as compared to the 2018 IECC, would achieve greater energy efficiency in buildings subject to the code as compared to the 2018 IECC. DOE estimates national savings in residential buildings of approximately 8.66% energy cost savings, 8.79% source energy savings, 9.38% site energy savings.
Similar to federal requirements, s. 101.027 (2), Wis. Stats., requires the department to review the energy conservation code and promulgate rules to improve energy conservation. The department is required to consider any cost of the required compared to any reasonable economic and environmental benefit of the requirement. The review process used to evaluate the IECC and ASHRAE Standard 90.1 as part of this rule revision meets both federal and state requirements for reviewing energy conservation standards for use in commercial buildings. Wisconsin modifications to the IECC and ASHRAE Standard 90.1 are found in ch. SPS 363. Accessibility Requirements -In addition to energy conservation requirements, commercial buildings are also required to meet federal requirements for accessibility for the disabled. These regulations include the following:
28 CFR 35 – Nondiscrimination on the Basis of Disability in State and Local Government Services. 28 CFR 36 – Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities. 24 CFR 40 – Accessibility Standards for Design, Construction, and Alteration of Publicly Owned Residential Structures. 24 CFR 41 – Policies and Procedures for the Enforcement of Standards and Requirements for Accessibility by the Physically Handicapped. 24 CFR 100 – Discriminatory Conduct Under the Fair Housing Act.
