# ICC Merchandizing (again)



## CodeWarrior (Jul 30, 2021)

For those of you using the ICC Ecodes, you may have seen the ES symbol in the chapter heading. Clicking on it brings up a list of ES reports. Apparently, the manaufacturers pay ICC to add this to the codes. Another "pay to play" scheme. 

I think this offering inputs bias within ICCES, as those who pay extra probably get favorable treatment in getting the reports out and an evaluation review that will not be as rigorous as a competitor who just wants to have their report out there. ICC is merchandizing certain reports over others, instead of equitably providing the evaluation reports and let the user or regulator decide from what is available? 

If ICC is going to be in the merchandising game, they should open it up to other listing agencies like UL, CSA, IAPMO, Intertek, etc. 

What will stop ICC from inserting after the section in IBC Chapter 17 about approved agency -- "we are an approved agency, trust us"?

This makes the ecodes available for advertisements, essentially. The pdfs and hard copies of the codes may end up with ads interspersed within the chapters.

Not sure if the other code writers have done this yet, like IAPMO and NFPA, and standards writers like ASTM and ANSI. Hopefully not.


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## jpranch (Aug 2, 2021)

I wish I had your knowledge of every aspect of ICC's intent, finances, pay to play schemes and all things ICC. It's clear that you do not like the Code Council and that's okay. I was once the same myself but making baseless claims without facts and concrete evidence is hardly compelling.


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## CodeWarrior (Aug 6, 2021)

jpranch said:


> I wish I had your knowledge of every aspect of ICC's intent, finances, pay to play schemes and all things ICC. It's clear that you do not like the Code Council and that's okay. I was once the same myself but making baseless claims without facts and concrete evidence is hardly compelling.


I understand you serve on the ICC Board, so perhaps can shed some light here.

The ICC-ES Rules of Procedure include the following statement: 
"An evaluation report is not to be construed as representing a judgment about aesthetics or any other attributes not specifically addressed in the report, nor as an endorsement or recommendation for use of the subject of the report."

So, wouldn't the reference to certain ESRs and not others in the E-codes be looked upon as an endorsement or recommendation?


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## tmurray (Aug 9, 2021)

ICC being a private corporation can do whatever they please. Or more specifically, whatever the market and their share holders (members in this case) will allow. Corporations are amoral entities. 

That's capitalism baby!


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## Glenn (Aug 9, 2021)

CodeWarrior said:


> What will stop ICC from inserting after the section in IBC Chapter 17 about approved agency -- "we are an approved agency, trust us"?


I appreciate you sharing the information about this link to ES reports, simply because I like to stay aware of what's happening in the code business.

My only reply to what I quoted above is that ICC does not insert anything into the I-codes.  ICC manages the process.  If someone were to propose that change in the IBC it would be discussed openly and transparently and probably would not get very much support.  I don't know if you have ever been involved with the ICC code development process, but if not, you may find it very interesting.  Going to my first hearing a decade ago, changed so much of my perspective of codes.


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## CodeWarrior (Aug 11, 2021)

Glenn said:


> I appreciate you sharing the information about this link to ES reports, simply because I like to stay aware of what's happening in the code business.
> 
> My only reply to what I quoted above is that ICC does not insert anything into the I-codes.  ICC manages the process.  If someone were to propose that change in the IBC it would be discussed openly and transparently and probably would not get very much support.  I don't know if you have ever been involved with the ICC code development process, but if not, you may find it very interesting.  Going to my first hearing a decade ago, changed so much of my perspective of codes.


Well, ICC ES does tout themselves as meeting the requirements for an approved agency but I have not found this item in the e codes, but in their advertising.

You bring up a valid observation about what content should occur in final document. Should the codes only contain what is approved via the code development process, or would ads or other materials be permitted? Perhaps including ES reports in the ecodes subsidizes making free version available like certain apps for cell phones. 

Sure, I have attended the code hearings and watch the webcasts on occasion. I wonder if someone put the question of whether or not to allow additions to the the codes up for public discussion, would ICC convene this.


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## jpranch (Aug 11, 2021)

Ya know, everything is on the table and open for discussion but one may not get the answer they are looking for. This is not unique to the code council or any other organization. It's just life. As with any organization there is a procedure that must be followed that will greatly assist a person or group of people to ensure that their voices are heard. Dose that mean you can't think out of the box and break a few rules? Hell no! I love the gray world and live in it as well as occasionally cross over to the dark side. But what the hell do I know... I drank the cool aid a long time ago...


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## Glenn (Aug 11, 2021)

CodeWarrior said:


> I wonder if someone put the question of whether or not to allow additions to the the codes up for public discussion, would ICC convene this.


I collect vintage code books, with over 800 now dating back to 1857.  The old codes are full of paid advertisements.  It is indeed a past method of funding their development and publication.

Regarding the quote above, I don't understand.  The code development process is public.  Anyone can suggest an addition or change.  It takes a village...

The preface of the 1927 UBC is poetry and is the basis of the design for my company marketing shwag.  I'll have a box of these "voting guides" to give away at the hearings this September to remind the members of why we trust them to vote.


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## mtlogcabin (Aug 11, 2021)

The code development committees evaluate and make recommendations regarding proposed changes to the codes. Their recommendations are then subject to public comment and council-wide votes. *The ICC’s governmental members—public safety officials who have no financial or business interest in the outcome—cast the final votes on proposed changes.*


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## CodeWarrior (Aug 11, 2021)

Glenn said:


> I collect vintage code books, with over 800 now dating back to 1857.  The old codes are full of paid advertisements.  It is indeed a past method of funding their development and publication.
> 
> Regarding the quote above, I don't understand.  The code development process is public.  Anyone can suggest an addition or change.  It takes a village...
> 
> ...


I will try to clarify. By additions, I meant something like the ads, or ES reports, which are not, of course, decided in the public development process. Should this continue to be at the discretion of the publisher? For references, like interp guides, I can see this happening, but for model codes, too?


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## Mark K (Aug 11, 2021)

The statement that "ICC being a private corporation can do whatever they please." is misleading  they are also subject to other restraints on their actions even if nobody is currently holding them accountable.  For example the antitrust laws that apply to monopolies should be giving ICC great concern when they use there market power to compel manufacturers of products to obtain evaluation reports.

In addition we need to be more sensitive to those provisions in the model codes that are in conflict with statutes adopted by the legislature.  For example the state licenses architects and engineers.  So why does the IBC try to regulate what design professionals can do.

I find it interesting that building officials blindly accept the evaluation reports thus allowing ICC-ES to effectively, and illegally, modify the building code in favor of these manufacturers.  There is a difference between a one time invoking of Section 104.11 and automatically accepting the product on all projects.

The evaluation report process is interesting in that the manufacturer pays ICC-ES to produce the report.  Thus they are obligated to the manufacturer not the building departments.

ICC-ES does not perform any independent testing but rather obtains the test results from the manufacturer.  This could allow the manufacturer to be selective in the information provided, but we can know since there is no independent check.  My understanding is that the manufacturer's experts prepare the first draft of the evaluation report thus allowing them to bias, possibly unintentionally,  the conclusions.  In addition ICC-ES does not allow building departments access to the original test data.  In one case that I am aware of the manufacturers tests did not reflect the actual conditions thus resulting in unconservative results.  ICC-ES did not identify this problem and issued the evaluation report and pocketed the fee paid by the manufacturer.  The manufacturer was not happy with the lower values when this was discovered.

Then one might ask why we  should defer to ICC-ES.  Are their engineering experts  knowledgeable  about each of the products addressed in evaluation reports?  Looking at the number of engineers employed by ICC-ES it does not seem credible that these relatively few engineers can have the expertise regarding such a wide variety of projects.  So how can they provide a check on the manufacturers and the manufacturers experts?

So why should building departments blindly defer to ICC-ES reports?


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## tmurray (Aug 12, 2021)

Mark K said:


> The statement that "ICC being a private corporation can do whatever they please." is misleading  they are also subject to other restraints on their actions even if nobody is currently holding them accountable.  For example the antitrust laws that apply to monopolies should be giving ICC great concern when they use there market power to compel manufacturers of products to obtain evaluation reports.


I understand why you would say that, but like any individual, a corporation can do what ever they please, even break laws. In fact, since they are amoral entities, if they generate more revenue by breaking the laws, they have a fiduciary responsibility to their stock holders to do so. It is the government's responsibility to ensure the penalties for breaking the laws are more severe than the benefits. 

While some might find that they cannot break laws for moral reasons and personify corporations by attempting to apply the same morality to them, this is more of a socialist mentality (expecting companies to act for the common good) than capitalism (expecting companies to extract as much wealth as possible).

I'm not trying to comment on the way it "should" be, just what is.


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## Mark K (Aug 12, 2021)

But should a public entity, such as a building department be an accessory to the illegal activity?


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## tmurray (Aug 12, 2021)

Mark K said:


> But should a public entity, such as a building department be an accessory to the illegal activity?


An interesting question. I would hope that most government officials would not willfully engage in illegal activity. I mean, what are we politicians? LOL.

But seriously. To be considered an accessory, one has to have knowledge that what the person did was illegal. If we set aside the argument as to if what the ICC is doing is a violation of anti-trust laws, we need to answer the question as to whether a reasonable person would be aware that a company is violating anti-trust laws. 

I would opine, and assume you would agree, that the average building official does not have the necessary understanding of anti-trust legislation to recognize that a company is violating them. I know I certainly don't.


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## Mark K (Aug 12, 2021)

Ignorance of the law is no excuse.

But on a broader topic most building department personnel as well as engineers think the only law that governs is the building code.  But if you look at the state laws you may find conflicts between state statutes and the  building code.


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## jpranch (Aug 12, 2021)

Very, very true Mark K. Here we stay in close contact with the various state departments as well as co-locating our ICC Chapter events with them in an effort to avoid such things. Do we get it right 100% of the time. No, but we are very, very close.


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## tmurray (Aug 13, 2021)

Mark K said:


> Ignorance of the law is no excuse.
> 
> But on a broader topic most building department personnel as well as engineers think the only law that governs is the building code.  But if you look at the state laws you may find conflicts between state statutes and the  building code.


Ignorance is an excuse against being considered an accessory. Think about it logically. A friend calls you to pick them up and take them home. Later you get arrested for an accessory to murder. You had no idea they just killed someone. Should you go to jail? Courts say no.

I agree with you on your second point. Some other inspectors and I had a discussion recently about property entry. Similar to you, entry onto private property is protected here in Canada. In talking with them, they felt that their currently property entry policy (assumed consent unless someone told them they cannot enter) was acceptable. When I asked them how they justify their policy in light of the Charter and received a deer in the headlights look from them.


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## steveray (Aug 13, 2021)

Our code gets vetted by State legal, so hopefully no big issues...

(Amd) 104.6 Right of entry. Pursuant to subsection (d) of section 29-261 of the Connecticut
General Statutes, the building official or his assistant shall have the right of entry to such buildings
or structures, except single-family residences, for the proper performance of his duties between
the hours of nine a.m. and five p.m., except that in the case of an emergency, he shall have the
right of entry at any time, if such entry is necessary in the interest of public safety. Pursuant to
section 29-393 of the Connecticut General Statutes, on receipt of information from the local fire
marshal or from any other authentic source that any building in his jurisdiction, due to lack of exit
facilities, fire, deterioration, catastrophe or other cause, is in such condition as to be a hazard to
any person or persons, the building official or his assistant shall immediately make an inspection.


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