The MHCC Should Reject the HUD-MHI Proposed Fire Sprinkler Standard for Manufactured Housing

The MHCC should reject the federal fire sprinkler standard for manufactured housing (and related enforcement) as proposed by HUD and expanded and embellished by the Manufactured Housing Institute (MHI). The rationalizations that have been offered for such an unnecessary and costly standard are deceptive, misleading and, ultimately, wrong.

Even though directed by the 2000 law to apply preemption "broadly and liberally," HUD contends that its existing fire safety standards do not preempt state or local sprinkler laws. While MHARR strongly disagrees, HUD should have stopped there, allowing the industry, together with other segments of the housing industry, to oppose such standards on a jurisdiction-by-jurisdiction basis. Such efforts, to date, have been largely successful, particularly given the high cost of sprinkler mandates and a weak economy that has devastated the housing industry. However, urged by certain manufacturers with higher production in Western states, where local adoption of sprinkler standards has been more of an issue, HUD, now joined by MHI, is proposing a highly prescriptive federal sprinkler standard – even though there are other, better approaches to address the concerns of such Western manufacturers.

It was claimed at the HUD-COSAA meeting that such a HUD standard is "favored" by the industry. This is misleading, however, because any response depends on how the question is asked. MHARR's own experience is that once the relevant facts are explained to manufacturers few, if any, support such a drastic and costly approach. Those facts include, but are not limited to the following:

Claim: Sprinklers are necessary to ensure reasonable fire safety for manufactured home occupants.
Fact: The evidence is that HUD's existing standards work, as shown by a 1985 fire loss study by Foremost Insurance Company, showing the incidence of fires in manufactured homes at 50% of other types of residential structures – a figure that would likely be even better today. Indeed, HUD has never argued that its current fire safety standards are somehow inadequate or do not "ensure reasonable fire safety" for the occupants of manufactured homes.

Claim: A "federal" fire sprinkler standard is "necessary" for federal preemption.
Facts: This is misinformation. Even before federal preemption was strengthened in the 2000 law, HUD itself ruled that its "fire safety" standards – which have never required fire sprinklers – preempt state and local sprinkler laws. In a July 27, 1989 letter to the Oklahoma City Fire Chief (copy attached), HUD stated: "If your municipal requirements include automatic fire sprinkler systems, they address the same aspect of performance as HUD's standards, i.e., fire safety. Therefore, HUD's standards preempt."

HUD later reversed this position, but "broadly and liberally" construed, as required by the enhanced preemption of the 2000 law, both the current HUD fire safety standards and state/local sprinkler standards address the "same aspect of performance." The purpose of the HUD fire safety regulations, as spelled out in the regulations, is to "ensure reasonable fire safety to the occupants" of manufactured homes, and sprinkler standards are designed to achieve the same safety result, as shown by the NFPA 13D Standard for the Installation of Sprinkler Systems in One and Two-Family Dwellings and Manufactured Homes, which states that its requirements are designed to "provid[e] a reasonable degree of fire safety." Both thus address the same aspect of performance – fire safety – although they do so by different means.

Even if HUD and MHI were correct though about "same aspect of performance" –which they are not – federal preemption is not limited to standards covering the "same aspect of performance." The Supreme Court, construing federal preemption under the National Traffic and Motor Vehicle Safety Act of 1966 – the statute that the preemption language of our original 1974 law was modeled on – ruled in 2000, that if a state rule or requirement conflicts with the objectives of federal law, it is preempted, even if it does not meet the "same aspect of performance" test under the same law.

Claim: Enforcement of the proposed HUD-MHI standard will be limited to voluntary sprinkler installations or those where sprinklers are required by state or local law.
Fact: There is no guarantee that such a standard, once adopted, will not be extended to all manufactured homes, based on a mere request by an interested party, subsequent HUD "interpretation," or by court ruling. In fact, the history of ever-expanding regulation under the program shows that such an expansion is likely – all at the same time that other segments of the housing industry are successfully resisting the imposition of such state and local mandates. A federal standard would also extend Subpart I notice and correction to all homes ultimately covered by the federal standard.

Claim: The proposed HUD-MHI federal sprinkler standard will ensure the federal preemption of state/local sprinkler requirements.
Fact: Wrong. Significant portions of the HUD-MHI proposed federal standard would fall under the federal installation standards that HUD itself says are not preemptive, due to the re-codification of installation. Thus, states and localities would not be barred from imposing additional costly – or even exclusionary – installation and testing requirements.

MHARR is a Washington D.C.-based national trade association representing the views and interests of producers of federally-regulated manufactured housing.