Attachment A to NGA report

Enhancing Public Safety and The States’ Role in the Global Economy Through

Under the Tenth Amendment to the Constitution, states and their localities retain the authority to adopt and enforce laws that regulate the design and construction and use of buildings. As laboratories of democracy, no two states have chosen to regulate the built environment in exactly the same way. For example, while 43 states adopt codes and standards for state-owned construction, 25 states have chosen to adopt and enforce such regulations for all construction on a statewide basis; 49 states enforce only energy conservation requirements for buildings statewide, and 36 states regulate factory-built structures at the state level. The remainder of the states leave such structures to be covered by local laws, if at all.¹ In total, over 40,000 political jurisdictions in this nation either adopt or enforce the modern building codes and standards that provide for the public’s safety.

Ninety percent of all Americans live and work in jurisdictions where their health and life safety are protected by buildings constructed or renovated based upon model building codes and standards. Diverse sets of codes and standards, covering such areas as structural, electrical, mechanical, plumbing, energy conservation, accessibility, and life safety are developed for states and localities to adopt by not-for-profit private sector associations using voluntary labor from the building, fire services, trade union, and construction community.

These codes and standards affect not only the health and life safety of the citizens of the communities that adopt and enforce them, but have technical and recommended administrative provisions that also affect the affordability of construction, the level of insurance premiums paid by the public, and the assistance that a state receives from the Federal Emergency Management Agency (FEMA) in reconstructing homes, businesses, and other structures after a man-made or natural disaster.

Throughout most of the twentieth century,. such codes and standards lacked cohesiveness and technical uniformity. Multiple private sector groups produced diverse and often conflicting codes, leaving the states to blend the best provisions from these documents into a patchwork of construction codes. In the 1990’s, the nation’s model building and fire code writing bodies came together to write and publish (for state and local adoption) a uniform, cohesive, single set of codes and standards covering all of the above technical areas.

Initially, that effort showed great promise. This past summer, however, that cooperative effort fell apart. Instead of producing a single family of cohesive codes and standards, the parties separated into two deeply divided groups, each producing a distinctive and diverse family of construction codes and standards and committed to aggressively lobbying states and localities to adopt their own codes and standards.

These two groups — one representing the nation’s building officials, the International Code Council (ICC)² and the other the nation’s fire community, the National Fire Protection Association (NFPA), with their partners the International Association of Plumbing and Mechanical Officials (IAPMO) — have historically produced strong technical documents in their respective fields of expertise. Both parties have competent professional staffs and are supported by voting members from the building and fire services who believe strongly in the quality and accuracy of the codes and standards they produce and the support services that they provide the jurisdictions that adopt them. Both the ICC and the NFPA have publicly expressed the view that the public’s interest would best be served if each state adopted and enforced their respective collection of codes and standards.

In the wake of the disintegration of their earlier cooperative efforts, both the ICC and the NFPA and their partners began to aggressively lobby governors’ offices, mayors, state legislators, and city councils to set aside the codes developed by the other party and adopt instead their family of codes and standards. Joining the ICC and NFPA in this competition are a wide range of interest groups that are important to the political and economic scene in your state. These include: builders and contractors; licensed construction trades; unions; architects; engineers; and building and fire code personnel, including your state building codes personnel and state fire marshals.

As the current code dilemma runs its course, elected officials at all levels of government, in all 50 states and several territories, are finding it necessary to expend both taxpayer money and their own political capital

trying to sort out, with minimum disruption, which group’s set of codes and standards are best for their community. The stakes involved here are more than just the sale of codes. They include the subsequent marketing to the state of ICC or NFPA products and services, including technical training on the codes themselves and the sale and use in the state of building products and materials allowed by these codes.

1 For a listing of states with statewide codes, please see page D 5-10.

2 The ICC is comprised of a 3 model building code organizations, Building Officials and Code Administrators International (BOCA), International conference of Building Officials (ICBO), and Southern Building Code Congress International (SBCCI)

Helping Your State Make Its Decision - The Options That Are Available

In this atmosphere of growing competition between the ICC and NFPA and their supporters, how does a governor and his/her state’s legislators go about choosing which codes to adopt without being swept up in the politics of competing interest groups? How do you determine in a thoughtful and fact-finding way which codes will work best for your citizens, businesses, and construction communities?

As the governors’ national building code and public safety organization, NCSBCS believes that there are at least four possible code adoption options available to each state. These are:

Anyone of the above options will create problems for the states and localities involved, unless the process used to make these determinations is able to keep at arms length — and out of the political process, as much as possible — the multitude of construction organizations and associations who have lined up to support the two different model code-writing bodies.

These options also will require each state, under its existing administrative procedures acts, to extensively review and analyze its existing statewide codes (most of which already are a blend of NFPA and ICC codes) and the provisions of the new family of codes being offered by the ICC and NFPA. That comparison will also require an analysis and consideration of what amendments, to one or the other family of codes, will be needed to ensure their compatibility with other recognized standards mandated by the state or by federal programs (example Federal Energy Act, the HUD Fair Housing Program, etc.).

In undertaking this analysis, each state may well find that it reaches a totally different conclusion from its neighbors. Each state will have different views and levels of pressure from its stakeholders regarding building, fire, electrical, mechanical, plumbing, residential, energy conservation, and accessibility issues. Also important will be factors such as what kind of services the ICC and the NFPA will offer to states and localities who adopt their codes. These services may include education, training, and technical assistance.

Whichever of the above options a state chooses, the intent of each state should be to implement a full set of compatible, coordinated codes that will not conflict with the regulations established by other state and federal programs. Such a set should meet the needs of both the public and private sectors, including the state construction industry.

Understanding the ICC and NFPA Family of Codes and Successful Administrative Processes Being Used By States to Make Their Code Decisions

In Attachment A, we have briefly described the current code dilemma facing the states and highlighted four possible options that states might want to consider taking to resolve that dilemma.

These questions are addressed in the next three attachments, which comprise the remainder of our report.

Attachment B provides you transmittal letters and four-page reports that NCSBCS solicited from both the ICC and the NFPA. In these reports, these groups describe in their own words why they believe their codes and code development process will best, fit your state’s needs.

Attachment C draws from the experience of three states as possible guides for minimizing the politics surrounding the process of deciding which codes and what technical and/or administrative amendments are right for a state. One of these states accomplishes that by appointing special code review committees for each technical code (building, fire, plumbing etc.). These committees are comprised of the diverse group of stakeholders themselves and require them to come to a consensus regarding which of the ICC or NFPA codes — or blend of those families — should be adopted in the state and with what technical amendments. The other two states rely upon the state code adoption agency itself to make that judgment in consultation with a single stakeholders advisory body already set by state statute.

Attachment D provides basic information regarding the safety and economic benefits of having such a program for states without a statewide building code.

In addition to the processes noted in this report, some states are considering pooling their resources to compare technical provisions of the ICC and NFPA codes to the codes and standards already in place in their state.

NCSBCS would be pleased to provide your office or state building regulatory agency with other background information about the Conference or the importance of statewide building codes and standards.

Among the other support materials available from the Conference is a publication called "Introduction to Building Codes, 2000 - A Guide to Understanding the Codes and How They Work". (A copy of that publication has been provided to each of the governors along with this report.)