Title of Regulation: 13VAC5-95. Virginia Manufactured Home Safety Regulations (amending 13VAC5-95-10 through 13VAC5-95-60, 13VAC5-95-80 through 13VAC5-95-100; repealing 13VAC5-95-70).

Statutory Authority: § 36-85.7 of the Code of Virginia.

Public Hearing Information:

March 28, 2011 - 10 a.m. - Virginia Housing Center, 4224 Cox Road, Richmond, VA

Public Comment Deadline: March 31, 2011.

Agency Contact: Stephen W. Calhoun, Regulatory Coordinator, Department of Housing and Community Development, Main Street Center, 600 East Main Street, Suite 300, Richmond, VA 23219, telephone (804) 371-7000, FAX (804) 371-7090, TTY (804) 371-7089, or email steve.calhoun@dhcd.virginia.gov.

Basis: Section 36-85.7 of the Code of Virginia requires the Board of Housing and Community Development to keep the Manufactured Housing Safety Regulations (MHSR) up to date and in compliance with federal law and regulation.

Purpose: The proposed regulatory action is essential to protect the health, safety, and welfare of citizens of the Commonwealth by providing the most up-to-date installation standards available and mandated. The current installation standards are outdated and no longer available as a viable resource upon request by clients, building officials, and installers; also the U.S. Department of Housing and Urban Development's (HUD) new Manufactured Home Installation Standards are enforced as a mandatory installation standard under federal regulation. The proposed regulation will delineate the mandatory installation standard per HUD that is fundamental to the protection of the health, safety, and welfare of citizens and is readily available for clients, building officials, and installers.

Substance: The proposed MHSR will be updated to include all references to the Federal Installation Standards (24 CFR Part 3285). The proposed regulation will contain minor changes to the provisions of the regulations that have been vetted through the client groups affected by the MHSR and have met no opposition. A more up-to-date standard is required to provide assistance to building officials and local building inspections departments, installers, and home owners regarding installation and inspections procedures and all processes related to the installation of manufactured homes within the Commonwealth.

Issues: The advantage for the public, building officials, installers, and private citizens is the revision removing the outdated and unattainable NCSBCS/ANSI A225.1 standard 1994 edition and specifying the new mandated HUD installation regulation in the MHSR. The HUD installation standards provide minimum requirements for the initial installation of new manufactured homes and each new home installation designs and instructions have been approved by the Secretary of HUD or Design Approval Primary Inspection Agency (DAPIA). The Federal Construction Standards are enforcement provisions for the design, construction, distribution, and the installation of manufactured homes. A more up to date standard is required to provide assistance to building officials and local building inspections departments, installers, and home owners regarding installation and inspection procedures and all processes related to the installation of manufactured homes within the Commonwealth. The building official is responsible for, but not limited to the aspects of, the installation and set up of a new manufactured home for footings, foundation systems, anchoring of the home, exterior and interior close-up, additions and alterations, and system connections done during initial installation. Such aspects are subject to and must comply with the installation instructions provided by the manufacturer of the home; when the manufacturer's installation instructions are not available, such aspects are subject to and must comply with 24 CFR Part 3285 Model Manufactured Home Installation Standards. Where the installation or erection of a manufactured home utilizes components that are to be concealed, the installer must notify the building official that an inspection is necessary and assure that an inspection is performed and approved prior to concealment of such components, unless the building official has agreed to an alternative method of verification.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The Board of Housing and Community Development (Board) proposes to amend its Manufactured Housing Safety Regulations to reword some sections with currently preferred terms, move the regulations that define the role of local building inspectors in inspecting new manufactured housing and delineate the statutory punishment for violation of these regulations.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. Current regulations use the terms "local code inspector and distributer" through the regulatory text; the Board proposes to replace these terms with "local building inspector" and "broker." As these new terms refer to the same groups of people, no regulated entity is likely to incur any additional costs on account of these proposed changes.

Currently, the regulations that specify the code enforcement role of local building officials are in 13VAC5-95-30 (Effect of label). The Board proposes to move these regulations into 13VAC5-95-20 (Application and enforcement). Nothing new will be required of local building inspectors under the proposed regulations; local building inspectors and other interested parties will, however, be able to more easily locate these requirements as the new section title makes it a much more intuitively obvious place in which to look.

Current regulations delineate procedures for handling violations of manufactured housing safety rules. The Board proposes to add notice of the statutory language that governs punishment of any violations. Because affected entities must already adhere to both the relevant statutes and regulations, and so would already be subject to any listed fines and other punishments, no regulated entity is likely to incur any additional costs on account of this proposed change. To the extent that the addition of the statutory language makes the rules less opaque, this change will provide the benefit of clarity.

Businesses and Entities Affected. The Department of Housing and Community Development (DHCD) reports that up to 42 manufacturers, 238 dealers, 3 brokers, 699 salespeople and 570 installers are governed by these regulations. All of these entities will be affected by these proposed changes.

Localities Particularly Affected. No locality will be particularly affected by this proposed regulatory action.

Projected Impact on Employment. This regulatory action will likely have no impact on employment in the Commonwealth.

Effects on the Use and Value of Private Property. This regulatory action will likely have no effect on the use or value of private property in the Commonwealth.

Small Businesses: Costs and Other Effects. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Small Businesses: Alternative Method that Minimizes Adverse Impact. Small businesses in the Commonwealth are unlikely to incur any costs on account of this regulatory action.

Real Estate Development Costs. This regulatory action will likely have no effect on real estate development costs in the Commonwealth.

Legal Mandate. The Department of Planning and Budget (DPB) has analyzed the economic impact of this proposed regulation in accordance with § 2.2-4007.04 of the Administrative Process Act and Executive Order Number 36 (06). Section 2.2-4007.04 requires that such economic impact analyses include, but need not be limited to, the projected number of businesses or other entities to whom the regulation would apply, the identity of any localities and types of businesses or other entities particularly affected, the projected number of persons and employment positions to be affected, the projected costs to affected businesses or entities to implement or comply with the regulation, and the impact on the use and value of private property. Further, if the proposed regulation has adverse effect on small businesses, § 2.2-4007.04 requires that such economic impact analyses include (i) an identification and estimate of the number of small businesses subject to the regulation; (ii) the projected reporting, recordkeeping, and other administrative costs required for small businesses to comply with the regulation, including the type of professional skills necessary for preparing required reports and other documents; (iii) a statement of the probable effect of the regulation on affected small businesses; and (iv) a description of any less intrusive or less costly alternative methods of achieving the purpose of the regulation. The analysis presented above represents DPB's best estimate of these economic impacts.

Agency's Response to the Department of Planning and Budget's Economic Impact Analysis: The Department of Housing and Community Development concurs with the economic impact analysis provided by the Department of Planning and Budget.

Summary:

The Board of Housing and Community Development proposes to amend the Manufactured Housing Safety Regulations to (i) reword certain sections with currently preferred terms, (ii) move the regulations defining the role of local building inspectors in inspecting new manufactured housing from 13VAC5-95-30 to 13VAC5-95-20, (iii) delineate the punishment for violation of the regulations, (iv) incorporate by reference the recent changes and additions to the Federal Construction Standards of the U.S. Department of Housing and Urban Development (HUD), and (v) adopt Installation Standards of HUD Part 3285 as the most current installation standard available to replace current outdated standards no longer in print and not readily available to clients and constituents of the State Building Code Administrative Office.

13VAC5-95-10. Definitions.

A. The following words and terms when used in this chapter shall have the following meanings unless the context clearly indicates otherwise:

"Act" or "the Act" means the National Manufactured Housing Construction and Safety Standards Act of 1974, Title VI of the Housing and Community Development Act of 1974 (42 USC § 5401 et seq.).

"Administrator" means the Director of DHCD or his designee.

"DHCD" means the Virginia Department of Housing and Community Development.

"Dealer" means any person engaged in the sale, lease, or distribution of manufactured homes primarily to persons who in good faith purchase or lease a manufactured home for purposes other than resale.

"Defect" means a failure to comply with an applicable federal manufactured home construction and safety standard that renders the manufactured home or any part of the home unfit for the ordinary use of which it was intended, but does not result in an imminent risk of death or severe personal injury to occupants of the affected home.

"Design Approval Primary Inspection Agency" or "DAPIA" means a state agency or private organization that has been accepted by the secretary, in accordance with the federal regulation, to evaluate and either approve or disapprove manufactured home designs and quality control procedures.

"Distributor" means any person engaged in the sale and distribution of manufactured homes for resale.

"Federal installation standards" means the federal Model Manufactured Home Installation Standards (24 CFR Part 3285) or any set of state standards that the secretary has determined provide protection to the residents of manufactured homes that equals or exceeds the protection provided by the installation standards.

"Federal regulation" means the federal Manufactured Home Procedural and Enforcement Regulations, enacted May 13, 1976, under authority granted by § 625 of the Act, and designated as Part 3282, Chapter XX, Title 24 of HUD's regulations (24 CFR Part 3282). (Part 3282 consists of subparts A through L, with sections numbered 3282.1 through 3282.554, and has an effective date of June 15, 1976.)

"HUD" means the United States Department of Housing and Urban Development.

"Imminent safety hazard" means a hazard that presents an imminent and unreasonable risk of death or severe personal injury that may or may not be related to failure to comply with an applicable federal manufactured home construction or safety standard.

"Installation" means completion of work to include but not be limited to stabilize, support, anchor, and close up a manufactured home and to join sections of a multi-section manufactured home, when any such work is governed by the federal installation standards or by state installation standards that are certified as part of a qualifying installation program.

"Installer" means the person or entity who is retained to engage in, or who engages in, the business of directing, supervising, controlling, or correcting the initial installation of a manufactured home.

"Label" or "certification label" means the approved form of certification by the manufacturer that, under 24 CFR 3282.362(c)(2)(i) § 3280.11 of the Manufactured Home Procedural and Enforcement Regulations federal standards, is permanently affixed to each transportable section of each manufactured home manufactured for sale to a purchaser in the United States.

"Local code building official" means the officer or other designated authority charged with the administration and enforcement of USBC, or duly authorized representative.

"Manufactured home" means a structure subject to federal regulation, which is transportable in one or more sections; is eight body feet or more in width and 40 body feet or more in length in the traveling mode, or is 320 or more square feet when erected on site; is built on a permanent chassis; is designed to be used as a single-family dwelling, with or without a permanent foundation, when connected to the required utilities; and includes the plumbing, heating, air conditioning, and electrical systems contained in the structure.

"Manufacturer" means any person engaged in manufacturing or assembling manufactured homes, including any person engaged in importing manufactured homes.

"Manufacturer's installation instructions" means DAPIA-approved instructions provided by the home manufacturer that accompany each new manufactured home and detail the home manufacturer requirements for support and anchoring systems and other work completed at the installation site to comply with the federal installation standards and the federal standards.

"Noncompliance" means a failure of a manufactured home to comply with a federal manufactured home construction or safety standard that does not constitute a defect, serious defect, or imminent safety hazard.

"Purchaser" means the first person purchasing a manufactured home in good faith for purposes other than resale.

"Recreational vehicles" means vehicles that meet all of the following criteria:

1. Built on a single chassis.

2. Four hundred square feet or less when measured at the largest horizontal projections.

3. Self-propelled or permanently towable by a light duty truck.

4. Designed primarily not for use as a permanent dwelling but as temporary living quarters for recreational, camping, travel, or seasonal use.

"Secretary" means the Secretary of HUD.

"Serious defect" means any failure to comply with an applicable federal manufactured home construction and safety standard that renders the manufactured home or any part thereof not fit for the ordinary use for which it was intended and which results in an unreasonable risk of injury or death to occupants of the affected manufactured home.

"Standards" or "federal standards" means the federal Manufactured Home Construction and Safety Standards (24 CFR Part 3280) adopted by HUD, in accordance with authority in the Act. The standards were enacted December 18, 1975, and amended May 11, 1976, to become effective June 15, 1976.

"State administrative agency" or "SAA" means DHCD which is responsible for the administration and enforcement of Chapter 4.1 (§ 36-85.2 et seq.) of Title 36 of the Code of Virginia throughout Virginia and of the plan authorized by § 36-85.5 of the Code of Virginia.

"USBC" means the Virginia Uniform Statewide Building Code (13VAC 5-63).

B. Terms defined within the federal regulations and standards shall have the same meanings in this chapter.

13VAC5-95-20. Application and enforcement.

A. This chapter shall apply to manufactured homes as defined in 13VAC5-95-10 and 13VAC5-95-20.

B. Enforcement of this chapter shall be in accordance with the federal regulation.

C. Manufactured homes produced on or after June 15, 1976, shall conform to all the requirements of the federal standards, as amended.

D. DHCD is delegated all lawful authority for the enforcement of the federal standards pertaining to manufactured homes by the administrator according to § 36-85.5 of the Code of Virginia. The Division of Building and Fire Regulation of DHCD is designated as a state administrative agency in the HUD enforcement program, and shall act as an agent of HUD. The administrator is authorized to perform the activities required of an SAA by the HUD enforcement plan including, but not limited to, investigation, inspections, citation of violations, handling of complaints, conducting hearings, supervising remedial actions, monitoring, and making such reports as may be required.

E. All local code building officials are authorized by § 36-85.11 of the Code of Virginia to enforce the provisions of this chapter within the limits of their jurisdiction. Such local code officials shall enforce this chapter, subject to the general oversight of the Division of Building and Fire Regulation and shall not permit the use of any manufactured home containing a serious defect or imminent safety hazard within their jurisdiction. and shall be responsible for and authorized to do the following:

1. Verify through inspection that a manufactured home displays the required HUD label.

2. Determine whether the manufactured home has been damaged in transit to a degree that may make it unsafe. If the manufactured home has been damaged, then the local building official is authorized to require tests for tightness of plumbing systems and gas piping and an operational test to ensure that all luminaries and receptacles are operable.

3. Prevent the use or occupancy of a manufactured home that in the opinion of the local building official contains a serious defect or imminent safety hazard and notify the administrator immediately.

4. Notify the administrator of any apparent violations of this chapter to include defects and noncompliance.

F. Mounting and anchoring In accordance with § 36-99 of the Code of Virginia, all site work associated with the installation of manufactured homes shall be in accordance with the applicable requirements of is subject to the USBC. Also, as set out by the USBC, all administrative requirements for permits, inspections, and certificate of occupancy are applicable.

G. Recreational vehicles are not subject to this chapter.

13VAC5-95-30. Effect of label.

A. In accordance with § 36-85.11 of the Code of Virginia, manufactured homes displaying the certification label as prescribed in the federal standards shall be accepted in all localities as meeting the requirements of the Manufactured Housing Construction and Safety Standards Law (Chapter 4.1 (§ 36-85.2 et seq.) of Title 36 of the Code of Virginia), which shall supersede the building codes of the counties, municipalities and state agencies. In addition, as a requirement of this chapter, local code officials shall carry out the following functions with respect to manufactured homes displaying the HUD label, provided such functions do not involve disassembly of the homes or parts of the homes, change of design, or result in the imposition of more stringent conditions than those required by the federal regulations.

1. Verify through inspection that the manufactured home has not been damaged in transit to a degree that would render it unsafe. If the manufactured home has been damaged, then the local code official is authorized to require tests for tightness of plumbing systems and gas piping, and electrical short circuits at meter connections.

2. Verify through inspection that (i) supplemental components required by the manufacturer's installation instructions or this chapter are properly provided, (ii) manufacturer's installation or erection instructions are followed, and (iii) any special conditions or limitations of use stipulated by the manufacturer's installation instructions or the label in accordance with the standards or this chapter are followed.

B. Local code officials are required by the USBC to enforce applicable requirements of the USBC for utility connections, site preparation, foundations, stoops, decks, porches, alterations and additions to existing manufactured homes, building permits, skirting, certificates of use and occupancy, and all other applicable requirements, except those governing the design and construction of the labeled units. In addition, local code officials shall verify that a manufactured home displays the required HUD label.

13VAC5-95-40. Report to DHCD.

Whenever any manufactured home is moved from a local jurisdiction before a noted violation has been corrected, the local code building official shall make a prompt report of the circumstances to the administrator. The report shall include a list of uncorrected violations, all information pertinent to identification and manufacture of the home contained on the label and the data plate, the destination of the home if known, and the name of the party responsible for moving it.

13VAC5-95-50. Alterations.

A. No distributor installer, broker, or dealer shall perform or cause to be performed on a new manufactured home any alteration affecting one or more requirements set forth in the federal standards, except those alterations approved by the administrator.

B. In handling and approving dealer requests for alterations on a new manufactured home, the administrator may be assisted by local code building officials. The local code building official shall report violations of subsection A of this section and failures to conform to the terms of their approval to the administrator.

C. In accordance with § 36-99 of the Code of Virginia and in accordance with the USBC, alterations, additions, and repairs associated with used manufactured homes are regulated by the USBC and not this chapter. The USBC provides for administrative requirements for permits, inspections, and certificates of occupancy and allows the use of Appendix E of the International Residential Code, entitled, "Manufactured Housing Used As Dwellings" as an acceptable alternative to the general requirements of the USBC for construction work associated with additions, alterations, and repairs to used manufactured homes.

13VAC5-95-60. Installations.

Distributors or Broker's, dealers installing, or installers setting up a new manufactured home shall perform such installation in accordance with the manufacturer's installation instructions or other support and anchoring system approved by the local code official in accordance with the USBC.

13VAC5-95-70. Prohibited resale. (Repealed.)

No distributor or dealer shall offer for resale any manufactured home possessing a serious defect or imminent safety hazard.

13VAC5-95-80. Lot inspections.

At any time during regular business hours when a manufactured home is located on a dealer's or distributor's broker's lot and offered for sale, the administrator shall have authority to inspect such home for transit damages, seal tampering, violations of the federal standards and the dealer's or distributor's broker's compliance with applicable state and federal laws and regulations. The administrator shall give written notice to the dealer or distributor broker when any home inspected does not comply with the federal standards.

13VAC5-95-90. Consumer complaints; on-site inspections.

A. The administrator shall receive all consumer complaints on new manufactured homes reported to DHCD by owners, dealers, distributors brokers, code local building officials, and other state or federal agencies. The administrator may request such reports to be submitted by letter or on a report form supplied by DHCD or in other format acceptable by the administrator.

B. The administrator may conduct, or cause to be conducted, an on-site inspection of a manufactured home at the request of the owner reporting a complaint with the home or under the following conditions with the permission of the owner of the home:

1. The dealer, distributor broker, or manufacturer requests an on-site inspection;

2. The reported complaint indicates extensive and serious noncompliances;

3. Consumer complaints lead the administrator to suspect that a class of homes may be similarly affected; or

4. Review of manufacturer's records, corrective action, and consumer complaint records leads the administrator to suspect secondary or associated noncompliances may also exist in a class of homes.

C. When conducting an on-site inspection of a home involving a consumer complaint, the administrator may request the dealer, distributor installer, broker, and manufacturer of the home to have a representative present to coordinate the inspection and investigation of the consumer complaint.

D. After reviewing the complaint report or the on-site inspection of the home involved, the administrator shall, where possible, indicate the cause of any nonconformance and, where possible, indicate the responsibility of the manufacturer, dealer, distributor installer, broker, or owner for the noncompliance and any corrective action necessary.

E. The administrator shall refer to the manufacturer of the home, in writing, any consumer complaint concerning that home reported to the administrator. The administrator may refer any such reported complaint to HUD, to the SAA in the state where the manufacturer is located and to the inspection agency involved with certifying the home.

F. The administrator shall assist the owner, dealer, distributor installer, broker, and manufacturer in resolving consumer complaints. The administrator shall monitor the manufacturer's performance to assure compliance with Subpart I of the federal regulations for consumer complaint handling and shall take such actions as are necessary to assure compliance of all involved parties with applicable state and federal regulations.

13VAC5-95-100. Violation; appeal; penalty.

A. Where the administrator finds any violation of the provisions of this chapter, a notice of violation shall be issued. This notice of violation shall order the party responsible to bring the unit into compliance, within a reasonable time. In accordance with § 36-85.12 of the Code of Virginia, it shall be unlawful for any person, firm, or corporation, to violate any provisions of this law, the rules and regulations enacted under authority of this law, or the federal law and regulations. Any person, firm, or corporation violating any provision of said laws, rules, and regulations, or any final order issued there under, shall be liable for civil penalty not to exceed $1,000 for each violation. Each violation shall constitute a separate violation with respect to each manufactured home or with respect to each failure or refusal to allow or to perform an act required by the legislation or regulations. The maximum civil penalty may not exceed one million dollars for any related series of violations occurring within one year from the date of the first violation. An individual or a director, officer, or agent of a corporation who knowingly and willfully violates Section 610 of the National Manufactured Housing Construction and Safety Standards Act in a manner that threatens the health or safety of any purchaser shall be deemed guilty of a Class 1 misdemeanor and upon conviction fined not more than $1,000 or imprisoned not more than one year, or both.

B. Parties aggrieved by the findings of the notice of violation may appeal to In accordance with § 36-114 of the Code of Virginia, the State Building Code Technical Review Board, which shall act on the appeal in accordance with the provisions of the USBC. The aggrieved party shall file the appeal within 10 days of the receipt of the notice of violation. Unless the notice of violation is revoked by the review board, the aggrieved party must comply with the stipulations of the notice of violation have the power and duty to hear all appeals from decisions arising under the application of this chapter. Appeals concerning application of the federal regulations or federal standards by the administrator shall be in accordance with the federal regulations.

C. Any person, firm or corporation violating any provisions of this chapter shall, upon conviction, be considered guilty of a misdemeanor in accordance with § 36-85.12 of the Code of Virginia.