2. Serve upon the Governor of that state without further delay an unconditional demand that the state immediately approve CI No-Hub and the CI Compression Gasket as a necessary precondition of any Kentucky community receiving further financial assistance through HUD.

We are in the process of collecting information on other local communities having Workable Programs certified by HUD where plastic pipe has been approved for DWV application, but not CI No-Hub and the CI Compression Gasket. As these situations come to our attention and the facts are verified we shall bring them to the attention of Members of Congress having a concern in each case.

Whenever an administrative agency exceeds the authority conferred upon it by Congress, how often we find, in the grey area outside the law, additional wrongs in the form of arbitrary and capricious behavior on the part of federal agents and unequal treatment of citizens, all flowing from the original transgression. One injustice leads to others. The fundamental reason, I believe, is that when Congress really authorizes an administrative agency to decide among competing economic interests and the stakes are high, Congress takes care to lay down certain ground rules to guide the agency behavoir, whether under the Administrative Procedures Act or otherwise. To turn over to a Federal agency such as HUD a power of dictating the contents of state and local building and plumbing and similar codes would involve a major decision on the part of Congress, a decision possible only after lengthy debate and much opposition. If Congress really intended to do what HUD claims it has already done, it would circumscribe the administrative discretion with some limits at least. It is just unthinkable that Congress would knowingly authorize any agency official to promote a particular material, such as plastic pipe, to the disadvantage of competing and even superior materials. And yet these are the further inequities that inevitably follow when HUD arrogates to itself an authority to force whatever changes it wants in local codes, depending really on its bargaining power at the moment and the resistance put up by the state or local party to the bargaining session.

The simple explanation why HUD officials behave as they do in breaking down local codes is that they have no hard and fast ground rules to go by, and the reason for this in turn is that Congress has set no limit to agency discretion in doing this job because, to be perfectly blunt about it, Congress did not give HUD this job to do in the first place. And so due process of law goes out the window, and so does equal protection under the laws, and so does any thing resembling lawful delegation of legislative authority.

HUD VICTIMIZES THE CONSUMER

A second major contention is that the HUD code reform program fails to protect the consumer-that home buyer or home owner, especially the one of limited means.

The primary reason for this is HUD dependence on the system of model codes, a second pillar of the code campaign as the Workable Program requirement is the first.

The subject is not new, having been studied by Subcommittee No. 5 of this House Small Business Committee during the previous Congress. The Subcommittee report, issued with approval of the full Committee, contained five salutary recommendations."

Recommendation No. 1 called for introduction of a bill requiring Federal approval of any voluntary industrial standard to be used in interstate commerce. Such a bill has been introduced by Representative Dingell of Michigan in this 91st Congress. It is H.R. 10123, and we strongly recommend its passage if HUD is to become the code maker for the nation.

Recommendation No. 5 calling on HUD to more or less supervise the procedures of model code publishing bodies has been ignored. We are curious as to whether the department has furnished your committee the report requested in the final sentence of that recommendation."

To our knowledge, neither HUD in its Workable Program activities nor FHA has developed procedures affording equitable participation to parties affected by decisions concerning materials, as called for in Recommendation No. 3 of that report.

"The Effect Upon Small Business of Voluntary Industrial Standards," A Report of Subcommittee No. 5 to Select Committee on Small Business, House of Representatives, H. Rept. 1981, 90th Cong., 2nd Sess, pp. 79-81. See also Conclusions, pp. 73-78.

6 Ibid., p. 81.

7 Ibid., p. 80.

The report did not go so far as to recommend that HUD be divested of all authority, whether legislative or assumed, to coerce changes in local building and related codes. We will go that far and recommend that this power be taken away from HUD, because that agency has demonstrated many times over that it cannot exercise the power responsibly in the public interest, to say nothing of the fact that it pays not the least attention to the recommendations of this Committee of the Congress.

As regards building and plumbing and similar codes, HUD requires each community having a Workable Program to adopt one of the nationally recognized model codes or else tailor its own code into a substantial equivalent of one of the approved models in the judgment of HUD, whose decision is final. Local exceptions are permitted for reasons deemed sufficient by HUD. The four model building codes and their publishers are:

1. National Building Code, American Insurance Association (AIA).

2. Basic Building Code, Building Officials and Code Administrators International (BOCA).

3. Uniform Building Code, International Conference of Building Officials (ІСВО).

4. Southern Standard Building Code, Southern Building Code Congress (SBCC).

There are three model plumbing codes acceptable to HUD, two of them published by building code bodies and the third by a fifth organization, as follows: 1. Uniform Plumbing Code, International Association of Plumbing and Mechanical Officials (IAPMO).

2. Southern Standard Plumbing Code, SBCC.

3. Basic Plumbing Code, BOCA.

It is with respect to these five organizations, plus others in the case of other codes, that HUD applies the complimentary term "nationally recognized model codes." Likewise the code publishers apply it to themselves, though with some inconsistency as will be noted below.

The phrase is a completely unfounded bit of public relations puffing, since in the case of building and plumbing alike, none of the models comes close to being "nationally recognized." The most glaring example is the BOCA Basic Plumbing Code which, at least as recently as three months ago and so far as we could determine, has been adopted as the plumbing code of only one, perhaps two, local jurisdictions after two years on the market. The code was always opposed by the National Association of Plumbing-Heating-Cooling Contractors which adopted a resolution opposing it on June 24 of this year, and which you, Mr. Chairman, caused to be entered in the Congressional Record.

The other two plumbing codes, those published by IAPMO and SBCC, have over the years gained a certain acceptance in fairly well defined regions of the country. IAPMŌ began back in the mid-1930s as the Western Plumbing Officials Association, and despite the change of name from "Western" to "International" some three years ago, its membership and its influence are still largely confined to some 13 Western states, and by no means all jurisdictions in those states. SBCC is, as its name denotes, a southern regional body.

In the case of BOCA, even its Basic Building Code and other codes have flourished mainly in those areas from which BOCA derives its membership. A survey of the voting membership list of that organization reveals what may be called strong representation from certain states and little or none from others. ICBO, IAPMO and BOCA have a few Canadian members and hence the term "International" in their names.

The code bodies are private, nonprofit corporations. Except for AIA, they are membership associations of building and similar officials. They therefore have the dual character of a professional association or union of public officials and also a corporate publishing and sales organization for model codes, standards, product approvals, code interpretations and similar materials for use in the building industry. They are non-profit in the sense that no one derives personal gain from the activities, though a full-time association staff does in each case depend for its livelihood upon the organizational income, which is derived from dues, the sale of model codes and other publications, and fees for testing and certification of building materials.

• Congressional Record, daily edition, August 5, 1970, Extension of Remarks of Hon. John C. Kluczynski.

Non-voting memberships are made available to private industry associations such as the Cast Iron Soil Pipe Institute and individual business firms. The nonvoting members are given voice but not vote, and typically pay dues in amounts several times the dues paid by voting members.

Participation by non-voting members such as our Institute is very necessary since the model code bodies are actually legislative bodies as to matters which vitally affect our economic welfare. This would be the case and actually was the case even in the absence of HUD or other federal agency enforcement of the model codes, since the building official members take the enactments of their respective groups back home where they have more or less influence in having them adopted as the ordinances of the jurisdiction. In addition, although code uniformity among adjacent jurisdictions cannot honestly be called an overriding passion for anybody-everyone is for uniformity when the code is right, but not when the code is wrong-the desire for code uniformity is one factor which tends to sell model codes.

The lobbying by commercial interests has become much more intense and much more real, so to speak, since HUD instituted its policy of forcing communities to accept one of the models as a condition of getting or keeping a Workable Program certification. The lobbying takes the forms described at length in the Hearings of Subcommittee No. 5.o

HUD, therefore, as dispenser and withholder of the federal largesse, is in a position to keep the building official organizations in business or put them out of business as publishers of model codes. If HUD approves the code for Workable Program purposes, the book will sell; if HUD denies approval, the book will not sell. Nobody these days is interested in a model code which will not open the horn of Federal plenty.

The extent and method of HUD influence on the code bodies is not within our knowledge, sitting as we do in the non-voting seats. At times there are definite signs that the cooperation between the code publishers and HUD is very close indeed. When BOCA first announced publication of its Basic Plumbing Code in 1968, it was able to say that the model had been approved by HUD's influence has been more directly publicized in the case of the multi-organizational efforts such as the Residential Rehabilitation Code and the One-and-Two-Family Dwelling Code.

The situation therefore is that HUD, unable to obtain a Federal building code or Federal plumbing code from the Congress, has turned to these five private corporations and elevated their publications into legislative enactments in the alternative for jurisdictions having Workable Programs. HUD has given them a recognition and a dignity which they never had before and to which they are not entitled. Perhaps for that very reason they are more attractive to the bureaucratic ambitions of the HUD code experts, since without HUD they would be but a shadow of their present selves.

It has been our observation that HUD has exploited these groups to build the foundations of its own control over the building industry and even into the fields of all zoning and planning and land use. Significantly, BOCA changed its name this year from "Building Officials Conference of America" to "Building Officials and Code Administrators International," signifying pointedly that the scope of its interest is not confined to building regulation.

Law-making and rule-making in this very significant portion of American life is being rapidly delegated to the private code bodies which are not geared to protect the public interest or afford an acceptable measure of due process to all parties affected by their decisions.

Subcommittee No. 5 during the 90th Congress looked at the model plumbing code activities of three code bodies: American National Standards Institute (ANSI), BOCA and IAPMO. ANSI's project to revise the 1955 National Plumbing Code is now dormant, so a detailed account of recent ANSI procedural changes will not be attempted here.

It may be noted that the National Commission on Product Safety criticized standards bodies such as ANSI and the American Society of Testing and Materials (ASTM) as developers of safety standards suitable for adoption without amendment as public safety regulations.10

"The Effect Upon Small Business of Voluntary Industrial Standards," Hearings before the Subcommittee on Activities of Regulatory Agencies of the Select Committee on Small Business, House of Representatives, 90th Congress, Vols. 1 and 2. passim.

10 National Commission on Product Safety, Final Report Presented to the President and Congress, June, 1970, pp. 51-56.

In our opinion, the code publishing bodies present a much clearer case of being unsuited to serve as private repositories of a public trust.

BOCA is the organization which first comes to mind when we refer to concentration of power at the top. BOCA has a rather detailed set of procedures for convention action on model codes already in existence, but insists upon the legal right to publish new codes by decision of the executive board only and without submission to membership vote.

Thus, when BOCA published the first edition of its Basic Plumbing Code in 1968, it was by order of the executive board. BOCA has subsequently published rules for the adoption of new model codes. The new procedures were adopted by the executive board and they vest the final decision to approve or reject any proposed new code in the executive board. No membership approval of this procedure was sought and none was obtained. Sometime later this year or early next year, BOCA will come out with its Basic Mechanical Code by decision of its executive board.

BOCA is also a party, along with AIA, ICBO and SBCC, to the drafting of the One and Two Family Dwelling Code, undertaken at the instance of the National Association of Home Builders and with support and encouragement from HUD. The drafts we have seen include plumbing chapters prepared by the other code body, IAPMO, and so it is, among other things, a plumbing code. The project was undertaken by a decision of the ruling board or committee of the four model code bodies and without consideration at a membership meeting or conference of any of the four. Although our Institute is a dues-paying member of three of these four groups, we have been unable to obtain from them any information as to the plan of action for publishing the code-whether by information of a new corporation, or joint trust, or multiparty contract, or whatever.

IAPMO also figured in the Hearings referred to above." This group has made some very real efforts to rectify its errors of the past. While we do not yet consider it grade A on the score of due process, the rank and file is more willing now to engage in back talk and decisions cannot be so easily finessed from the top down.

We see IAPMO at this point as more sinned against than sinning, and so badly used by HUD and the model building code bodies that it has been relegated to second class status as a model code agency.

IAPMO's role in the One and Two Family Dwelling Code has been to develop the chapters on plumbing under contract to the four building code bodies. It appears to have been left out of any participation at all in the Residential Rehabilitation Code Contract.1 It does not participate in the Model Codes Standardization Council which entity represents itself as having in its membership all the nationally recognized model code bodies. Additionally, the certification of factory-built houses and components for compliance with IAPMO's Uniform Plumbing Code is now being carried out by ICBO.

The essential reason for the eclipse of IAPMO is found in the built-in tension between the viewpoint of the building inspector and that of the plumbing inspector. Both are found in the IAPMO membership, and many of the plumbing inspector members are subordinates of building inspector members in their respective city governments. There remains, however, too much plumber-mindedness and too much care about quality plumbing in that organization to make it acceptable to the four building code bodies, to homebuilder associations or to HUD itself.

HUD'S ANTI-CONSUMER CODE PHILOSOPHY

A recent letter from Secretary Romney to a United States Senator sheds much light on the philosophy which guides HUD's code reform efforts. A copy of the letter was forwarded to an officer of our Institute and we request that the body of the letter be made a part of the record.1

We are fundamentally at odds with the policy described in the second sentence of the third last paragraph of the Secretary's letter, namely, "Our policy regarding local codes is based on the premise that all materials, irrespective of nature

11 See fn. 9 supra, esp. Vol. 2, pp. 515-742.

12 See attached exhibit, from Building Official, June 1970, "Report of the Executive Director".

13 See attached exhibit, "Building Code Progress," News from Building Officials Conference of America, July 20, 1970.

See attached exhibit, letter dated August 5, 1970, from Hon. George Romney. Secretary of Housing and Urban Development, to a United States Senator.

or origin, which has been produced under nationally recognized and accepted standards. . . should have a place in the building codes of each community, without limitation or restriction" except in certain circumstances.

The nationally recognized standards he refers to are product standards, not health or safety standards, and not the end product of testing against performance criteria. Such standards for plastic pipe describe the weight, size, chemical composition, etc. of the product, but involve no testing for stress corrosion, flammability, noise, susceptibility to rodent damage and other properties relating to the acceptability of this material for plumbing installations in a given community. There has been no such testing in HUD or any other federal agency we know of. This is the lack of testing we deplored. Secretary Romney plainly admits that his agency does not engage in such testing because of budgetary limitations, though his agency obviously does have the budgetary capacity to devote hundreds of man-hours of tax-paid time to promoting piastic pipe acceptance. It would afford far greater protection to the American home buyer if an appropriate federal agency would devote the same tax money to the kind of testing aimed to protect the consumer, and let the plastic pipe industry sell its own product.

The Secretary mentions four examples of other public and private agencies whose findings HUD depends on.

As to the National Bureau of Standards, it has never tested plastic pipe.15 Underwriters Laboratories has not approved plastic pipe, according to our information.

The National Sanitation Foundation has long been closely identified with the plastics industry, and cannot be assumed to represent the consumer interest in its testing of that product.18

The American Society for Testing and Materials does publish product standards of the type referred to above, but these standards do not involve testing of anticipated performance of said products in plumbing and drainage systems. The policy of HUD as stated in the Secretary's letter is exactly what we had assumed it to be from our observation of the HUD code-busting machine in action. The premise is that, so long as an industry can come up with a product standard published by an organization such as ASTM, it is entitled to have that standard accepted in any and every building code for any use to which the product may be put, unless the local authority can demonstrate to HUD's satisfaction a sufficient reason for allowing a local exception. The underlying philosophy is that any product which can be manufactured and properly labeled is entitled to its chance in the marketplace.

The reason why building codes have been written into our statute and ordinance books is exactly the opposite. It is that production is for the sake of consumption; and that consumers collectively, by utilizing the police power inherent in state and local government, have a right to protect themselves against the hazards of defective and untested materials prior to purchase, and prior to "guinea pig" testing at their own expense.

The Secretary observes that HUD's policy "does not impair the right of individual choice on the part of builders, developers, designers or homeowners in the use of any material, provided such material conforms to the accepted industry standards."

He is right on the score of builders, developers and designers.

He is also correct as to that home owner who designs his own house and personally contracts for its construction, and is sufficiently knowledgeable about building materials to make an informed choice. Home owners fitting that description are possibly one half of one percent of all home owners, and certainly do not include the purchasers of low and moderately priced homes whom the HUD policy supposedly aims to protect. These home owners have no choice, or at best a very limited choice (and they also have small chance) when volume developers of new housing select the cheapest materials in circumstances where little or none of the developer's or builder's cost saving is passed on to the home buyer. Naturally large scale developers want the freedom to install plastic drainage systems. What else? And why else should they or HUD be so excited about

15 See fn. 3 supra, Part 1, p. 647, letter dated June 11, 1970, from M. W. Jensen to James E. Wolfe.

16 Ibid., p. 681, wherein Rom Rhome, President of the ABS Institute, Inc. states that the National Sanitation Foundation publishes the authoritative directory of the plastic pipe industry. See also fn. 9, Vol. 2, pp. 779-780, wherein Charles A. Farish, Executive Director of the National Sanitation Foundation, testified that one-third of that organization's testing income is derived from the plastics industry.