The Manufactured Housing Institute (MHI) has shifted ground on its proposed “where required” sprinkler standard. But the new proposal continues to be flawed in its basic concept and would expose the industry — not only manufacturers, but more so retailers and communities that would have to deal with related logistical costs, such as inadequate water pressure — to an across-the-board sprinkler mandate that could also be used as a stalking-horse for civil liability.
During a June 15, 2011 conference call meeting of the Technical Structure and Design Subcommittee of the Manufactured Housing Consensus Committee (MHCC), MHI verbally unveiled a new proposal (not yet provided in writing) for a federal sprinkler standard that would: (1) state that sprinklers are federally preempted; and (2) set out a technical standard for sprinkler systems when a manufacturer “elects” to install such a system. According to MHI, this new proposal, which, unlike its original proposal, makes no reference to situations where a sprinkler system is “required” by a state or locality, is in response to a “change in circumstances” — specifically the refusal of most states and localities to adopt the sprinkler requirement of the 2009 International Residential Code (IRC), because of its cost, the housing crisis and the economic downturn … a positive development that MHI is needlessly turning into a negative for the HUD Code industry.
As MHARR stated during the call, however, this proposal continues to have major flaws that should make it unacceptable. First, HUD has already strongly indicated — at the October 2010 MHCC meeting — that the inclusion, in a final rule, of language stating that sprinklers “are preempted” would be a “problem” for the agency. Thus, unless HUD publicly states in writing that it agrees with and supports the federal preemption of sprinkler requirements, the first part of the proposal is, in reality, a trap, as it would likely be eliminated by HUD from any final rule.
This would, on its face, leave a federal standard for situations where a manufacturer “elects” to install a sprinkler system. MHI maintains that this would be a “voluntary” standard. But for reasons that MHARR has previously documented in detail, there is no such thing as a “voluntary” or “optional” federal construction and safety standard. Once any such standard went into effect, the Secretary would be obligated to enforce it across-the-board upon petition or request by sprinkler advocates or anyone else. And HUD officials, in response to a direct question from MHARR at a recent MHCC meeting, admitted as much, stating that it could not provide any assurance that such a standard would not ultimately be expanded to cover all HUD Code homes.
This would expose the entire industry to a crippling federal sprinkler standard with (MHI) estimated average costs of up to $6,000.00 per double-section home, for the sake of “protecting” a handful of manufacturers marketing homes to a few localities with sprinkler standards — almost exclusively in the West. And even if not enforced across-the-board by HUD, such a standard would inevitably be used by plaintiff’s lawyers in an effort to impose civil liability on manufacturers (as well as possibly retailers and communities, under certain circumstances) that do not offer or provide sprinkler systems.
For all of these reasons, that MHARR has detailed previously, this modified proposal continues to represent a costly and unnecessary risk for the industry and should be rejected.
Because of the importance of this issue, industry state associations might wish to fully inform the industry’s grassroots — particularly retailers and communities — of this change, as well as the fact that this proposal remains critically flawed and should be unacceptable.
Manufactured Housing Association for Regulatory Reform
1331 Pennsylvania Ave N.W., Suite 508
Washington, D.C. 20004