PART 4 -- THE AC PROCESS – DEFEATING THE PURPOSE AND ITENT OF THE MHCSS
Alternative Construction (AC) processes actually exist in most prescriptive building codes, and such processes actually serve in a prescriptive code to further a legitimate governmental interest, due to the requirement of positive inspection of the home through to its completion. However, the MHCSS is a performance code (emphasis added), and HUD’s use of this process lacks this assured compliance verification process, which stands in the way of furthering any legitimate governmental interest.
The reality is that if the Secretary has been provided or has creditable evidence/data that a manufactured home built using such new design(s) or technique(s), will perform at least equivalent to the performance-based MHCSS, then it does in fact comply with the MHCSS.
24 CFR 3280.1 – Scope - This standard seeks to the maximum extent possible to establish performance requirements.
24 CFR 3280.303(a) – General Requirements – The manufacturer or installer may exceed these standards provided such deviation does not result in any inferior installation or defeat the purpose and intent of this standard.
It goes without saying that meeting the minimum requirements of the standard(s) would also be acceptable. As discussed, performance based standards require objective review over time by Engineers and/or qualified Building Code Officials, to assure that the materials and/or methods of construction utilized by the designer to meet the minimum performance criteria, are performing over time as intended.
The Secretary predicates his approval for the manufacture of statutorily illegal manufactured homes on several conditions, most of which have no real bearing on this part of the discussion, with the exception of the two that follow:
24 CFR 3282.14(b)(3) – An explanation of how the design will result in homes that provide the same level of performance, quality, durability and safety as would be provided under the Standards
24 CFR 3282.14(b)(4) A copy of data adequate to support the request, including applicable test data, engineering calculations or certifications from nationally recognized laboratories
The Secretary presents the two conditions above separately, and states in the second condition shown above “to support the request.” This makes it less apparent to someone unfamiliar with a performance based building code that the two are mutually inclusive of one another. Restated:
“A copy of data…”including applicable test data, engineering calculations or certifications from nationally recognized laboratories”…adequate to support the” manufacturer’s “explanation of how the design will result in homes that provide the same level of performance...as would be provided under the Standards”.
As a performance standard, the MHCSS already provides for this without the need for the Secretary’s AC process:
24 CFR 3280.303(e) (1) – “Any new material or method of construction not provided for in this standard and any material or method of questioned suitability proposed for use in the manufacture of the structure shall nevertheless conform in performance to the requirements of this standard”.
24 CFR 3280.303(e) (2) – “Unless based on accepted engineering design for the use indicated, all new manufactured home materials, equipment, systems or methods of construction not provided for in this standard shall be subjected to the tests specified in paragraph (g) of this section”.
24 CFR 3280.303(g) – “In the absence of recognized testing procedures either in these standards or the applicable provisions of those standards incorporated by reference, the manufacturer electing this option shall develop or cause to be developed testing procedures to demonstrate the structural properties and significant characteristics of the material, assembly, subassembly component or member. Such testing procedures shall become part of the manufacturer's approved design.
The manufacturer is required under 24 CFR 3282.203(b) to submit all new manufactured home designs to the DAPIA (to be discussed later), “including applicable test data, engineering calculations or certifications from nationally recognized laboratories” for any new materials or methods of construction, for the purposes of determining if “the design will result in homes that provide the same level of performance” as required in the MHCSS. If such compliance is found, then approval is given by the DAPIA to the manufacturer, to manufacture such new manufactured homes.
In a performance based building code, such as the MHCSS, as stated above, if he in fact has the creditable evidence that he alleges to predicate his approval upon, then there is no legitimate reason or cause to issue an AC letter [1]. Simply stated, the Secretary’s use of his AC process is arbitrary and capricious where the manufacturer has provided “test data, engineering calculations or certifications from nationally recognized laboratories” [2], which show that the new design(s) or technique(s) “will result in homes that provide the same level of performance” (24 CFR 3282.14(b)(3))as required by the MHCSS.
Short of the explanation in footnote 6 above, the only other plausible explanation for the AC process, as the Secretary is using it, is the absence of data/evidence with the character described by the Secretary, upon which he alleges to predicate his approval. In either case, the Secretary’s AC process is being used as a means for the manufacturers to get by without complying with the 24 CFR 3280.303(e)(1) & (2), and (g) or to “defeat the purpose and intent of this standard”. In the first case, it is also being used defeat the purpose and intent of the United States Constitution (separation of powers; not just between branches, but between federal and state governments).
It should be noted that the personnel in the Secretary’s manufactured housing division spend the vast majority of each day, month, and year doing nothing but processing and approving the never-ending volumes of AC letters submitted by the manufacturers (emphasis added) for the manufacture of noncompliant manufactured homes. All of this takes place at the expense of more urgently needed actions, such as legitimate oversight of the compliance and remedial system.
1
It appears that the AC process, as
the Secretary is using it, is being used to allow the manufacturers
to construct under his jurisdiction, structures that by their nature
are not what Congress intended to regulate under their MOBILE home
legislation or the MHCSS Act. Note: The term ‘manufactured
home’ was substituted for the term ‘mobile home’
Pub. L. 96-399 – Rationale – When the reason for a law
ceases to exist, then so does the law. Hence, the change in
nomenclature from “mobile home” to “manufactured
home” had no affect on the mobile nature of the
manufacturers’ manufactured homes. Dressing the duck in a
goose suit does not make the duck a goose a different species of
fowl; hence, changing the skin or appearance of a mobile home does
not make the mobile home a different species of home. With this
industry, it is all about conveying the illusion of change in the
absence of quantitative change.