Volume 42, Issue 1 - January 2007


Speaking Out
Wrong About a Congressional Mandate? So What?
by Kim D. Mann

The National Fenestration Rating Council (NFRC) strives to justify its latest mission, creating an energy rating program for commercial fenestration, by claiming it is under Congressional mandate to develop this program. NFRC is wrong on both counts: it neither possesses a Congressional mandate nor needs one in order to develop a commercial fenestration energy rating system.

An Alleged Mandate
Standing before the Code Change Development Committee of the International Energy Conservation Code (IECC) on September 26, 2006, an NFRC spokesperson, also a member of the NFRC board of directors, cited this alleged Congressional mandate to support his argument that the IECC should not be amended to authorize the fenestration industry to comply with the American Architectural Manufacturers Association (AAMA) standard, AAMA 507-03, Standard Practice for Determining the Thermal Performance of Fenestration Systems Installed in Commercial Buildings, as an alternative path for rating energy performance of commercial fenestration. The NFRC spokesperson was urging the IECC Committee to reject the code-change proposal of the Glass Association of North America (GANA) (co-sponsored by the Aluminum Extruders Council and energy consultant Craig Conner). The proposal sought to revise IECC Section 102 to permit compliance with AAMA 507-03 as an option to complying with the NFRC procedures applicable to sitebuilt construction, already written into Section 102. He argued that Congress, by enacting the 1992 amendments to the Energy Policy and Conservation Act, had mandated that NFRC be recognized as sole developer of any and all energy rating systems for commercial as well as residential construction. 

The NFRC spokesperson was wrong about this asserted Congressional mandate as the applicable federal law on the books readily attests. All general and permanent laws of the United States (i.e. Congressional enactments) are published in the United States Code, a publication of the Office of the Law Revision Counsel of the U.S. House of Representatives. The Energy Policy and Conservation Act of 1975 was codified in Title 42 of the U.S. Code. 

The so-called NFRC Congressional mandate on which NFRC wishes to rely was part of the 1992 amendments to this Act, subsequently codified in Section 6292 of Chapter 77, Part A, titled Energy Conservation Program For Consumer Products Other Than Automobiles, of Title 42. And “was” is the operative word as that “mandate” language no longer exists—by 1998 Congress had removed it from Section 6292. NFRC can no longer claim any legitimacy or “mandate” by referring to these 1992 amendments.

Consumer Products Only
Moreover, the NFRC “mandate” has never existed for commercial fenestration products. The original Congressional mandate appearing in the 1992 amendments to Section 6292 of Title 42 recognized NFRC as the exclusive source of an energy rating program for residential window systems only. While Congress never used the word “residential” in Section 6292, it did not have to in order to restrict its so-called mandate to residential windows. Instead, in that section, it limited the products for which NFRC was to develop a national energy rating and labeling system and for which it directed the U.S. Department of Energy (DOE) to provide oversight and financial assistance to “consumer products.” Congress, in the 1992 amendments that became part of Section 6292, went on to direct the DOE to step in to develop its own energy rating and labeling system for “new covered products,” defined as “consumer products,” in the event NFRC’s efforts to develop an acceptable program fell short. Section 6292 listed the covered “consumer products.” They included standard appliances and products found in and around the home such as TV sets, dishwashers, refrigerators, etc., as well as any other “consumer product” DOE elected to classify as such. There was no mention of any “commercial” products on this list, much less commercial fenestration. Residential windows fit neatly within this definition of covered “consumer products;” commercial windows, storefronts and office-building glass cladding do not. 

Energy Ratings for Commercial Products
Despite the teachings of the legislative history of the Energy Policy and Conservation Act, NFRC may still lawfully develop a voluntary industry energy rating system for commercial fenestration, although Congress does not preclude other organizations from developing competing systems, such as AAMA 507-03. Just like ASTM, ANSI, SAE, UL, or any of the other private standards-setting organizations, NFRC may hold itself out to develop voluntary industry standards and, using whatever consensus-building process it chooses, may create and publish a voluntary energy rating system for commercial fenestration. This is precisely what NFRC is doing and AAMA has done. Its commercial fenestration system will gain traction only to the extent it either has credibility in the marketplace, proving itself accurate, scientifically sound, economical and efficient to apply, or is picked up and made mandatory by one or more state or local governments in their energy or building codes. 
NFRC needs no Congressional mandate to achieve public acceptance and widespread use on either the voluntary or the mandatory local levels. GANA is actively involved in the NFRC development process precisely to ensure NFRC’s Component Modeling Program evolves into an energy rating system for commercial fenestration the industry can and will embrace. 

Kim D. Mann, who is with the Washington, D.C. office of the Indianapolis-based law firm, Scopelitis, Garvin, Light & Hanson, is the general counsel for GANA.

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