Grassroots industry concern over the erosion of federal preemption is wellfounded, as a combination of HUD regulators, industry enablers and research consultants continue to press yet another backroom “deal” — this time on fire sprinklers. This is another example of the type of ill-advised industry “compromise” on key issues – while most grassroots industry members are kept in the dark or provided misleading information – that has devastated the industry in Washington, D.C.
Supporters of an across-the-board residential fire sprinkler mandate, largely frustrated so far in their efforts to have the fire sprinkler requirement of the latest International Residential Code (IRC) adopted at the state and local level, who have long seen the HUD Code industry as easy prey due to its weakness in Washington, D.C., continue to target manufactured housing for a sprinkler standard that could be imposed nation-wide by HUD in one stroke of the pen and used, ultimately, as a foot in the door, to pressure states and local jurisdictions to mandate sprinklers for all housing.
HUD regulators have already done their part for this effort by letting it be known, without issuing a formal ruling, that state and local sprinkler standards would not be preempted by the current HUD fire safety standards, notwithstanding the enhanced preemption instituted by Congress as part of the Manufactured Housing Improvement Act of 2000. And now, the usual enablers within the industry are promoting a preemption “study” by industry consultants (whose work has previously been turned against the industry by special interests to advance costly new standards and requirements) and a federal manufactured home fire sprinkler standard that, supposedly, would only apply in jurisdictions where sprinklers are already mandated for all residential dwellings.
Concerning a “study,” no one in the industry is apparently asking “study what?” and “why?” The facts concerning preemption are quite clear. A “study,” at this point would only serve to complicate this issue, while increasing doubts and confusion within the industry and wasting limited industry resources and funds.
Even worse, a “defensive” federal standard would expose the industry to the worst of all worlds. As MHARR has written before, sprinkler mandates should be preempted under the 2000 reform law which requires HUD to “broadly and liberally” interpret and apply federal preemption. If, HUD, though, wrongly insists on taking the position that they are not, then HUD should stay out of the matter entirely, and the industry should work to keep it out. Instead, the industry should continue to work – as part of a broad coalition encompassing all other segments of the housing industry — to stop or modify this sweeping mandate on a state-by-state and jurisdiction-by-jurisdiction basis. Where the relevant authorities agree — as many thus far have — the matter is resolved. Where they insist on a sprinkler mandate for all dwellings, the NFPA 13D standard should be used to build such homes, as it specifically addresses the unique aspects of manufactured housing. This approach could ultimately protect the industry in most areas of the country without undermining preemption and without forcing manufacturers to install sprinklers in all homes regardless of their destination.
The rest of the industry, however, having accepted, without any push-back, HUD’s premise that there is no preemption, wants to conduct a “study” — on an issue that has a long, clear and extensive record – as a fig-leaf for a “compromise” that would saddle the industry with a “defensive” federal sprinkler standard. Such a standard, however, would invite chaos for the industry and its consumers, give HUD regulators control over this issue without any accountability, and leave the industry in a preemption “no-man’s land,” caught in limbo as disputes inevitably develop between the states, localities and HUD over exactly what is or is not preempted and who has authority over what, including enforcement and penalty authority. Moreover, this type of infighting, leaving the industry and its consumers caught in the middle, is completely predictable, because the same disputes have occurred — and continue — over on-sight completion, where HUD’s distinction (‘, the Department’s infamous “re-codification”) between construction and installation has muddied the scope of federal preemption.
Industry complicity in such a federal standard would validate HUD’s rejection of the enhanced preemption that the industry worked so hard to achieve in the 2000 reform law, and that would just be the start. It would undermine ongoing efforts to stop the IRC mandate at the state and local level, and hand proponents of that mandate a significant national victory. It would be subject to expansion and abuse by HUD regulators and contractors who consistently over-state, over-reach, over-extend and over-enforce every IHUD Code standard, regulation, policy, practice and “interpretation” on the books without regard to cost. It would open the door to expansion at the state and local level too, including efforts to require community owners to retro-fit existing homes en mass.
Further, inviting a such a “defensive” standard out of fear of something worse — and a lack of resolve — would open the door to yet more unreasonable demands by other similar special interests with an agenda to advance. This kind of “sky is falling” scare tactic has been used time and again by half of the industry in Washington, D.C. as an excuse for doing nothing — or worse – and has consistently backfired on the industry and its consumers. Besides, there would be no guarantee that a future HUD administration would not ultimately extend this “defensive” standard to all manufactured homes – new, lived-in, or both – everywhere.
To the extent that HUD says it does not preempt sprinklers, this (and any other) back-room deal would result in yet another crushing blow for the industry, both shortterm and long-term. Accordingly, the industry in Washington, D.C. and the state associations should reject a cave-in that sacrifices the industry’s position on preemption, and work to address this matter together with the other segments of the housing industry.
from MHARR Washington Update – January 27, 2010
MHARR is a Washington DC.-based national trade association representing the views and interests ofproducers of federally-regulated manufactured housing.