Florida Manufactured Housing Ass'n v. Cisneros

United States Court of Appeals,

Eleventh Circuit.

No. 94-2307.

FLORIDA MANUFACTURED HOUSING ASSOCIATION, INC., Homes of Merit,
Inc., Jacobsen Manufacturing, Inc., and Nobility Homes, Inc.,
Petitioners,

v.

Henry G. CISNEROS, Secretary of the United States Department of
Housing and Urban Development, Respondent.

June 12, 1995.

Petition for Review of an Order of the U.S. Department of Housing
and Urban Development.

Before ANDERSON and CARNES, Circuit Judges, and RONEY, Senior
Circuit Judge.

CARNES, Circuit Judge:

This case involves regulations promulgated under the National

Manufactured Housing Construction and Safety Standards Act of 1974,

42 U.S.C. §§ 5401-5426 ("the Manufactured Housing Act" or "the

Act"). After the tremendous damage caused by Hurricane Andrew in

1992, the Department of Housing and Urban Development ("HUD"),

pursuant to the Act, revised its wind resistance standards for

manufactured homes. The Florida Manufactured Housing Association,

Inc. and the other petitioners in this case (referred to

collectively as "the manufacturers") challenge several aspects of

that rulemaking. They contend (1) that the agency did not

adequately consult with its Advisory Council as required by the

Act; (2) that the agency misinterpreted the meaning of "cost" as

used in the statutory criteria; and (3) that the new wind

standards are arbitrary and capricious for four different reasons.

We hold that the manufacturers' arguments are without merit and
deny their request that we set aside the regulations and that we

remand to the agency for further proceedings.
I. BACKGROUND

A. STATUTORY FRAMEWORK

As declared by Congress, the purposes of the Manufactured

Housing Act are to "reduce the number of personal injuries and

deaths and the amount of insurance costs and property damage

resulting from manufactured home accidents and to improve the

quality and durability of manufactured homes." 42 U.S.C.A. § 5401

(1983). In order to achieve these objectives, the Act authorizes

the Secretary of HUD to "establish by order appropriate Federal

manufactured home construction and safety standards. Each such

Federal manufactured home standard shall be reasonable and shall

meet the highest standards of protection, taking into account

existing State and local laws relating to manufactured home safety

and construction." 42 U.S.C.A. § 5403(a) (1983). The construction

and safety standards issued under the Act supersede state and local

standards for manufactured homes. 42 U.S.C.A. § 5403(d) (1983);

Scurlock v. City of Lynn Haven, Fla., 858 F.2d 1521, 1524-25 (11th

Cir.1988). The regulations are issued under the rulemaking

procedures mandated by the Administrative Procedure Act, 5 U.S.C.

§ 553. See 42 U.S.C.A. § 5403(b) (1983).

When promulgating manufactured housing standards, the Act

directs the Secretary of HUD to:

(1) consider relevant available manufactured home
construction and safety data, including the results of the
research, development, testing, and evaluation activities
conducted pursuant to this chapter, and those activities
conducted by private organizations and other governmental
agencies to determine how to best protect the public;
 (2) consult with such State or interstate agencies
(including legislative committees) as he deems appropriate;

(3) consider whether any such proposed standard is
reasonable for the particular type of manufactured home or for
the geographic region for which it is prescribed;

(4) consider the probable effect of such standard on the
cost of the manufactured home to the public; and

(5) consider the extent to which any such standard will
contribute to carrying out the purposes of this chapter.

42 U.S.C.A. § 5403(f) (1983). Pursuant to this statutory

authority, HUD has promulgated standards covering "all equipment

and installations in the design, construction, transportation, fire

safety, plumbing, heat-producing and electrical systems of

manufactured homes which are designed to be used as dwelling

units." 24 C.F.R. § 3280.1 (1994).

B. THE RULEMAKING PROCESS

Before HUD issued the regulations challenged in this appeal,

the agency's wind resistance standards for manufactured homes

divided the United States into two wind zones: a "standard" wind

zone and a "hurricane-resistive" wind zone. Under those

regulations, manufactured homes in the hurricane-resistive zone

were required to withstand winds of approximately 80 miles per

hour. The devastation caused by Hurricane Andrew in August of 1992

convinced HUD that the existing standards were inadequate.

According to HUD, 97% of all manufactured homes in Dade County were

destroyed, compared with 11% of single-family, non-manufactured

homes. In Florida and Louisiana, 11,213 manufactured houses were

destroyed and 3,016 suffered major damage. Approximately 36% of

all housing units destroyed by Hurricane Andrew were manufactured

homes. Moreover, the wind turned parts of some manufactured homes
into flying missiles, causing additional damage to other

structures. Manufactured Home Construction and Safety Standards on

Wind Standards, 59 Fed.Reg. 2456, 2457 (1994) ("Final Rule").

Damage to manufactured homes from high winds is "primarily in the

form of roof failure, loss of roof diaphragm material, connection

failures, and tiedown/foundation failures." Id.

After Hurricane Andrew, HUD initiated field investigations in

Florida as part of a general review of manufactured home standards.

The investigations revealed various deficiencies in manufactured

homes' resistance to wind storms, such as inadequate connections

between roofs, walls, and floors, and between exterior roof and

wall coverings and supporting sheathing or framing. Those

deficiencies led to other problems, including water damage, damage

from increased internal pressures, and missile damage to other

structures.

In addition to HUD's investigations, the National Institute of

Standards and Technology issued a report ("National Standards

Report") comparing the wind protection provisions of selected codes

and standards. In assessing the impact of Hurricane Andrew on

manufactured housing, the National Standards Report found that:

Damage to manufactured homes ranged from loss of roofing to
total destruction.... Commonly observed failures include loss
of roof membranes and blow-off of roof sheathing, failure of
uplift straps at truss-to-wall connections where staple crowns
pulled through the strap material, loss of cladding on
endwalls and near corners where large negative (suction)
pressures develop, loss of add-ons with resulting missile
damage and damage to the parent unit at points of attachment,
complete separation of superstructure from floor and
underframe, and loss of the complete unit due to failure of
tiedown straps or withdrawal of soil anchors.

The National Standards Report recommended that HUD use the wind
load requirements of the American Society of Civil Engineers' model

standard, ASCE 7-88, as the basis for the new rules.

On April 14, 1993, HUD published a Notice of Proposed

Rulemaking, proposing that the manufactured home standards be

amended to conform with the ASCE 7-88 standard, 58 Fed.Reg. 19,536

(1993) ("Notice of Rulemaking"), which is what the National

Standards Report had recommended. The stated goal of the proposed

standards was to "increase the safety of manufactured homes in

areas where wind-induced damage is a special hazard." Id. at

19,536. In order to have the new standards in place by the 1993

hurricane season, the Notice of Rulemaking indicated that HUD would

use an abbreviated thirty-day public comment period for the

proposed rules. However, after that deadline passed, HUD

subsequently extended the comment period for another thirty days,

because the agency decided that the new standards could not be

implemented in time for the 1993 hurricane season. HUD received

over one thousand comments from the public, although most were

duplicative or identical form letters. Comments submitted by the

manufacturers, as well as others, raised a number of objections to

the proposed standards, including criticisms of the increased costs

and predictions of deleterious effects on the industry and on

low-income families.

The Manufactured Housing Act also requires that HUD, before

establishing, amending, or revoking any manufactured housing

standard, must consult "to the extent feasible" with the National

Manufactured Home Advisory Council ("Advisory Council"). 42

U.S.C.A. § 5404(b) (1983). At first, HUD determined that it was
not feasible to consult with the Advisory Council because of the

agency's expedited schedule; however, after it extended the

comment period, HUD did consult with the Advisory Council, which it

convened for a two-day session in July of 1993. At that meeting,

the Advisory Council adopted a resolution calling for more studies,

and more public input, and recommending that the Council "be

reconvened to review the public comments and the analysis and

studies by HUD" that the Council called for. HUD did not reconsult

the Advisory Council before the Final Rule was published.

C. THE FINAL RULE

The Final Rule was published in the Federal Register on

January 14, 1994. Under the Final Rule regulations, the United

States is divided into three zones, classified according to their

susceptibility to hurricanes and high winds. Wind Zone III

includes parts of the coast in Alaska, southern Florida, Louisiana,

and North Carolina; all of Hawaii; and various United States

territories. Wind Zone II covers selected areas in Alabama,

Florida, Georgia, Louisiana, Maine, Massachusetts, Mississippi,

North Carolina, South Carolina, Texas, and Virginia. Wind Zone I

is all parts of the country not in Wind Zones II or III. Final

Rule, 59 Fed.Reg. at 2470-72. In general terms, manufactured homes

in Wind Zone III must withstand a "design wind speed" of 110 miles

per hour, and Wind Zone II manufactured homes must withstand a

design wind speed of 100 miles per hour. HUD decided not to change

the standards for Wind Zone I; thus, manufactured homes designated

for parts of the country located in that zone are only required to

comply with the previous wind standards governing those parts of
the country. In addition, the regulations set forth specific

technical requirements manufactured homes must meet in order to

comply with the ASCE 7-88 criteria.

The Final Rule stated that, in formulating the new wind

standards, HUD had balanced the competing goals of improving safety

and retaining manufactured homes as a viable source of low-cost

housing. HUD acknowledged that the costs to consumers in Wind

Zones II and III would rise, but found that the price increases

were justified because of reductions in future losses to consumers

and the public, as well as reductions in the "inestimable costs of

devastation to people's lives and emotional health and to the

communities" in hurricane-prone areas. Final Rule, 59 Fed.Reg. at

2457-58. HUD also stated that some of the benefits and costs (such

as deaths, injuries, and uninsured costs) were difficult to

quantify and that "its statutory mandate to reduce the number of

personal injuries and deaths and the amount of insurance costs and

property damage resulting from manufactured home accidents, and to

improve the quality and durability of manufactured homes, requires

that the Department look beyond affordability issues. In promoting

homeownership opportunities for lower-income persons, the

Department strongly believes that such housing must also be safe."

Id. at 2461-62.

HUD also explained in the Final Rule that the agency had

considered the comments of the Advisory Council, and did not

consider it necessary to reconvene the council. Id. at 2456, 2461.

According to HUD, it modified several aspects of the proposed

regulations in response to Advisory Council recommendations. HUD
decided not to impose any new requirements in Wind Zone I, and it

reduced the size of Wind Zone II by changing the high wind speed

boundary between Wind Zone I and Wind Zone II from 80 miles per

hour to 90 miles per hour, as well as making several other changes.

Additional modifications HUD made in response to the Advisory

Council's recommendations are discussed on page 20, below.

D. PROCEDURAL HISTORY

On March 14, 1994, the manufacturers, who were still

dissatisfied with the scope of the new wind standards, filed a

petition for review with this Court, as they are entitled to do

under the Act. See 42 U.S.C. § 5405(a)(1). At the same time, the

manufacturers submitted to HUD an Application for Stay of Effective

Date of Rule Amendments Pending Judicial Review ("Application for

Stay"). The Secretary of HUD denied the Application for Stay on

April 1, 1994, and the manufacturers subsequently filed in this

Court a motion to stay the new regulations pending judicial review.

That motion was denied on April 28, 1994.
II. STANDARD OF REVIEW

The manufacturers' challenges implicate both HUD's

interpretation of the Act and the procedural propriety of the

agency's rulemaking. The different issues involve different

standards of review:

A. STATUTORY INTERPRETATION

The standard of review for an agency's interpretation of a

statute is governed by the two-prong test outlined in Chevron,

U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S.

837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). First, the Court must
determine whether Congress has directly and unambiguously spoken to

the issue at hand. If so, that is the end of our inquiry and we

must give effect to the expressed intent of the legislature. Id.

at 842-43, 104 S.Ct. at 2781.

However, if Congress has not directly addressed the issue, we

then proceed to the second prong of Chevron. At this stage, "the

court does not simply impose its own construction on the statute,

as would be necessary in the absence of an administrative

interpretation." Id. at 843, 104 S.Ct. at 2782 (footnote omitted).

As the Supreme Court and this Court have recognized, " "the

resolution of ambiguity in a statutory text is often more a

question of policy than of law.' " Georgia., Dep't of Medical

Assistance v. Shalala, 8 F.3d 1565, 1568 (11th Cir.1993) (quoting

Pauley v. Bethenergy Mines, Inc., 501 U.S. 680, 696, 111 S.Ct.

2524, 2534, 115 L.Ed.2d 604 (1991) (citations omitted)). For that

reason, "[t]he court need not conclude that the agency construction

was the only one it permissibly could have adopted to uphold the

construction, or even the reading the court would have reached if

the question initially had arisen in a judicial proceeding."

Chevron, 467 U.S. at 843 n. 11, 104 S.Ct. at 2782 n. 11; see

Jaramillo v. INS, 1 F.3d 1149, 1152-53 (11th Cir.1993); Lipscomb

v. United States, 906 F.2d 545, 548 (11th Cir.1990). Instead, the

Court must defer to the agency's construction if it is reasonable.

The agency's construction is reasonable if it is not "arbitrary,

capricious, or manifestly contrary to the statute." Chevron, 467

U.S. at 844-45, 104 S.Ct. at 2782-83; see Alabama Power Co. v.

Federal Energy Regulatory Comm'n, 22 F.3d 270, 272 (11th Cir.1994).
 B. AGENCY RULEMAKING

Under the Manufactured Housing Act, HUD issues its

regulations through the informal rulemaking procedures of § 553 of

the Administrative Procedure Act ("APA"), and a court reviews HUD's

orders in accordance with §§ 701-706 of the APA. See 42 U.S.C.A.

§§ 5403(b), 5405(a)(3) (1983). The APA provides that an agency

action promulgated under the informal rulemaking procedures may be

set aside if it is "arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law." 5 U.S.C.A. § 706(2)(A)

(1977). This standard of review is "highly deferential," Hussion

v. Madigan, 950 F.2d 1546, 1553 (11th Cir.1992) (citation and

internal quotation marks omitted), and "presumes the validity of

the agency action," Charter Fed. Sav. and Loan Ass'n, West Point,

Ga. v. Office of Thrift Supervision, 912 F.2d 1569, 1580 (11th

Cir.1990) (citations and internal quotation marks omitted). The

Supreme Court has set forth the factors relevant to this review:

Normally, an agency rule would be arbitrary and capricious if
the agency has relied on factors which Congress has not
intended it to consider, entirely failed to consider an
important aspect of the problem, offered an explanation for
its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to
a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass'n of the United States, Inc. v. State Farm

Mutual Auto Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2867, 77

L.Ed.2d 443 (1983).

"Along the standard of review continuum, the arbitrary and

capricious standard gives an appellate court the least latitude in

finding grounds for reversal." North Buckhead Civic Ass'n v.

Skinner, 903 F.2d 1533, 1538-39 (11th Cir.1990) (footnote omitted).
We are limited to "a determination of whether the agency has

considered the relevant factors and articulated a rational

connection between the facts found and the choices made." Charter

Fed. Sav. and Loan Ass'n, 912 F.2d at 1580 (citation and internal

quotation marks omitted). When the agency is confronted with

opposing views among specialists, it must be given the discretion

to rely on the reasonable opinions of its own experts, even if a

court finds other views more persuasive. Marsh v. Oregon Natural

Resources Council, 490 U.S. 360, 378, 109 S.Ct. 1851, 1861, 104

L.Ed.2d 377 (1989); Hussion, 950 F.2d at 1554. Thus, "

"[a]dministrative decisions should be set aside in this context ...

only for substantial procedural or substantive reasons as mandated

by statute ... not simply because the court is unhappy with the

result reached.' " North Buckhead Civic Ass'n, 903 F.2d at 1539

(quoting Vermont Yankee Nuclear Power Corp. v. Natural Resources

Defense Council, Inc., 435 U.S. 519, 558, 98 S.Ct. 1197, 1219, 55

L.Ed.2d 460 (1978)).

In addition to arguing that the new standards are arbitrary

and capricious, the manufacturers contend alternatively that the

closer scrutiny "substantial evidence" test should be applied in

this case. They point out that the statutory provision for

judicial review in the Manufactured Housing Act is derived from the

National Traffic and Motor Vehicle Safety Act of 1966, 15 U.S.C. §

1381 et seq. In reviewing the Motor Vehicle Safety Act, the

Supreme Court in State Farm seemed to suggest that the substantial

evidence test, as well as the arbitrary and capricious standard,

might be applicable to the review of agency findings. State Farm,
463 U.S. at 43-44, 103 S.Ct. at 2867.

We are unpersuaded by the manufacturers' argument. The

Supreme Court in State Farm referred to the substantial evidence

standard only after citing legislative history from the Motor

Vehicle Safety Act that explicitly stated Congress's intent that

that standard of review be used. Id. The Court has repeatedly

held that unless an agency's organic statute contains a specific

provision to the contrary, the substantial evidence standard is

used only to review formal "on the record" agency actions, not

those resulting from the informal rulemaking procedures of § 553 of

the APA which are incorporated into the Manufactured Housing Act.

See American Paper Inst., Inc. v. American Elec. Power Serv. Corp.,

461 U.S. 402, 412 n. 7, 103 S.Ct. 1921, 1927 n. 7, 76 L.Ed.2d 22

(1983); FCC v. National Citizens Comm. For Broadcasting, 436 U.S.

775, 802-03, 98 S.Ct. 2096, 2116, 56 L.Ed.2d 697 (1978); see also

5 U.S.C. § 706(2)(E); Phillips Petroleum Co. v. Federal Energy

Regulatory Comm'n, 786 F.2d 370, 373-74 (10th Cir.), cert. denied,

479 U.S. 823, 107 S.Ct. 92, 93 L.Ed.2d 449 (1986); Western Union

Tel. Co. v. FCC, 665 F.2d 1126, 1148 n. 45 (D.C.Cir.1981); cf.

Aqua Slide "N' Dive Corp. v. Consumer Prod. Safety Comm'n, 569 F.2d

831, 837 (5th Cir.1978) (applying substantial evidence review to

informal rulemaking because it was required by the agency's

statute). Therefore, we will use the arbitrary and capricious

standard set forth in § 706 of the APA in our review of HUD's

rulemaking in this case.
III. JURISDICTION

Under the Act, a petition for judicial review must be filed
"prior to the sixtieth day after such order is issued." 42

U.S.C.A. § 5405(a)(1) (emphasis added) (1983). The Final Rule was

published in the Federal Register on January 14, 1994; however,

the last page of the Final Rule indicated that the document itself

was "dated" January 4, 1994. The petition for judicial review was

filed with this Court on March 14, 1994. Thus, the petition was

timely filed if the date the regulations were "issued" is the date

of publication in the Federal Register, but not if it is the date

placed on the Final Rule itself.

HUD argues that the rule was issued when the rulemaking

decision was dated, not when it was published. The agency cites

the Federal Register Act to support its contention that there is a

distinction between the date of publication and issuance. See 44

U.S.C.A. § 1503 (1991) (discussing special provision for filing

with the Office of the Federal Register "[w]hen the original is

issued, prescribed, or promulgated outside the District of

Columbia"). HUD also points to other statutory schemes to

demonstrate that when Congress wants to provide that the date of

publication initiates a filing period, it has expressly done so;

since Congress did not do so here, HUD argues that the date of

publication is not the date the Final Rule was "issued."

HUD's argument, however, is contradicted both by its own prior

interpretations of the statutory term "issued" and by the plain

meaning of that term. The Act authorizes a range of dates for the

time an order amending a standard can take effect. The effective

date "shall not be sooner than one hundred and eighty days or later

than one year from the date the order is issued," unless the
Secretary publishes his finding that a departure is in the public

interest. 42 U.S.C.A. § 5403(e) (West Supp.1995) (emphasis added).

In its Notice of Rulemaking in this very case, HUD equated the

issuance date, which starts the one-year period running, with the

publication date, stating: "Under ... [42 U.S.C. § 5403],

standards are to become effective not sooner than 180 days

following publication of a final rule in the Federal Register." 58

Fed.Reg. at 19,536 (emphasis added). Moreover, the Final Rule

provides that some standards are to become effective on July 13,

1994 and others on January 17, 1995. 59 Fed.Reg. at 2456. These

dates correspond to 180 days and one year, respectively, after the

date of publication, not the date placed on the Final Rule.1 As

the manufacturers note, the latter effective date would be

prohibited by the Act (without publication of a finding of good

cause) if HUD's argument on appeal were adopted, because it would

be "later than one year" after the date on the Final Rule.

Even assuming that we otherwise would give deference to an

agency's interpretation of a statute concerning the jurisdiction of

federal courts, 2 we will not do so in this case. We do not defer

1
January 17 is treated as falling within a year of January
14 because January 14 and 15 are weekend days and January 16 is a
federal holiday.
2
Federal court jurisdiction is not a matter within HUD's
specialized knowledge. This Court previously has refused to
defer to an agency's interpretation that did not involve that
agency's area of expertise. See Johnson v. United States R.R.
Retirement Bd., 925 F.2d 1374, 1378 (11th Cir.1991). Other
circuits have reached the same conclusion. See, e.g., Monieson
v. Commodity Futures Trading Comm'n, 996 F.2d 852, 858 (7th
Cir.1993); Morris v. Commodity Futures Trading Comm'n, 980 F.2d
1289, 1293 (9th Cir.1992); Brewster v. Sullivan, 972 F.2d 898,
901 (8th Cir.1992); Colorado Pub. Util. Comm'n v. Harmon, 951
F.2d 1571, 1579 (10th Cir.1991); Lynch v. Lyng, 872 F.2d 718,
to an agency's post hoc "convenient litigating position" that is

wholly unsupported by prior regulations, interpretations, rulings,

or administrative practices. Bowen v. Georgetown Univ. Hosp., 488

U.S. 204, 212-13, 109 S.Ct. 468, 473-74, 102 L.Ed.2d 493 (1988);

accord Alabama Power Co., 22 F.3d at 273; USX Corp. v. Director,

Office of Workers' Compensation Programs, 978 F.2d 656, 658 (11th

Cir.1992); McKee v. Sullivan, 903 F.2d 1436, 1438-39 n. 3 (11th

Cir.1990). In addition, although an agency's interpretation may

receive some deference even if it has changed over time, the

consistency of its interpretation is an important factor in

determining the amount of deference owed. See Thomas Jefferson

Univ. v. Shalala, --- U.S. ----, ---- - ----, 114 S.Ct. 2381, 2388-

89, 129 L.Ed.2d 405 (1994); Good Samaritan Hosp. v. Shalala, ---

U.S. ----, ----, 113 S.Ct. 2151, 2161, 124 L.Ed.2d 368 (1993); INS

v. Cardoza-Fonseca, 480 U.S. 421, 446 n. 30, 107 S.Ct. 1207, 1221

n. 30, 94 L.Ed.2d 434 (1987); Georgia., Dep't of Medical

Assistance, 8 F.3d at 1568. Therefore, even if we would otherwise

give deference to HUD's interpretation of the term "issued" in the

statutory provision that determines this Court's jurisdiction, the

agency's change of position within the same rulemaking process,

seemingly for the sole purpose of triggering a jurisdictional

challenge, convinces us to give the agency's latest interpretation

no deference.

Moreover, HUD's latest interpretation contravenes the plain

meaning of the term "issued." The verb "issue" clearly refers to

724 (6th Cir.1989); Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910,
914-15 (3d Cir.1981).
an act of public announcement and not to the act of arriving at a

private decision within the agency. See Random House Unabridged

Dictionary 1015 (2d ed. 1993) (defining the transitive verb form of

this term in the first two entries as "to put out"; "deliver for

use, sale"; "put into circulation"; and "to mint, print, or

publish for sale or distribution"). Giving the term its plain

meaning also comports with common sense and avoids a result that

Congress could not have intended. Under the interpretation of

"issued" now urged by HUD, an agency would have the power to

manipulate the jurisdiction of the federal courts. In this case,

there was only a ten-day delay between the date of the internal

decision (January 4), and the date the Final Rule was published

(January 14). However, if HUD's interpretation were adopted, the

agency conceivably could release its final rule to the public

thirty, forty, fifty, or more days after the stated date of

decision and thereby impede or prevent any judicial review. As a

matter of fairness, the sixty-day filing period should not begin to

run until the public has notice of the final rule's content. Cf.

Northwest Tissue Ctr. v. Shalala, 1 F.3d 522, 530 n. 8 (7th

Cir.1993) ("Before any litigant reasonably can be expected to

present a petition for review of an agency rule, he first must be

put on fair notice that the rule in question is applicable to

him."); RCA Global Communications, Inc. v. FCC, 758 F.2d 722, 730

(D.C.Cir.1985) ("Although statutory time limitations on judicial

review of agency action are jurisdictional, self-evidently the

calendar does not run until the agency has decided a question in a

manner that reasonably puts aggrieved parties on notice of the
rule's content." (citation omitted)). For all these reasons, we

hold that the petition for review was timely filed so that this

Court does have jurisdiction under the Act to decide it.
IV. DISCUSSION

A. CONSULTATION WITH THE ADVISORY COUNCIL

The Manufactured Housing Act requires that HUD consult with

the Advisory Council "to the extent feasible" when amending
3
manufactured home standards. 42 U.S.C.A. § 5404(b) (1983). In

anticipation of having the rules in effect before the next

hurricane season, HUD initially took the position that it was not

"feasible" for it to meet with the Advisory Council; however,

after the expedited schedule was relaxed, the agency convened the

Advisory Council for a two-day session in July 1993. The Advisory

Council adopted a resolution, recommending among other things that

further studies be conducted, and that the Advisory Council be

reconvened in the future to review public comments about HUD's

analysis of the further studies the Council had recommended. HUD

published the Final Rule in January 1994 without reconvening the

Advisory Council. HUD explained that it had "considered the

conclusions and recommendations of the Advisory Council" and did

"not believe there is any significant advantage in, or that the

public interest would be served by, reconvening the Advisory

Council." Final Rule, 59 Fed.Reg. at 2456.

The manufacturers claim that HUD erred in interpreting the

provision for consultation "to the extent feasible" to permit it to

3
The 24-member Advisory Council consists of eight
representatives from each of three groups: consumers, industry,
and government agencies. 42 U.S.C.A. § 5404(a) (1983).
refuse to convene the Advisory Council for a second time,

particularly since six months had elapsed between the consultation

in July 1993 and the January 1994 publication of the Final Rule.

The manufacturers argue that the failure to reconvene the Council

denied it an opportunity to comment on the modified final standards

and on the data on which those standards were based. Under these

circumstances, they contend, HUD's failure to request further

consultation was an error of law. HUD responds that it complied

with the Act by convening the Advisory Council once and by

carefully considering its comments. Although it disagreed with

many of the Advisory Council's recommendations, the agency did make

some modifications in its proposed standards based in part on the

Council's recommendations. In addition to withdrawing the proposed

regulations for Wind Zone I and expanding the size of that zone,

the following five requirements that had been included in the

proposed rules were left out of the final standards:

(1) Maximum dimension of 12O for roof overhangs;

(2) Lower load duration factor than provided in the 1991
National Design Specification for Wood Construction (NDS);

(3) Requirement for a 1.5 safety factor to calculate a
resistance of anchoring and foundation systems to higher
design forces in Wind Zones II and III;

(4) Manufacturer's design and details for a permanent
foundations system (certified by a registered professional
engineer or architect) applicable to each manufactured home
design; and

(5) Shortened period for implementation of the standards after
publication.

Final Rule, 59 Fed.Reg. at 2457. In view of the changes it made,

HUD asserts that the manufacturers "have confused a requirement of

consultation with one of 100% adoption."
 Congress did not indicate exactly what it meant when it

required HUD to consult with the Advisory Council "to the extent

feasible." Thus, we cannot decide this statutory interpretation

question under the first prong of Chevron. Instead, we move on to

the second prong, which requires us to determine whether HUD's

single consultation with the Advisory Council under the

circumstances of this rulemaking process comported with a

reasonable interpretation of the requirements of 42 U.S.C. §

5404(b). We hold that it did.

As we have discussed, based upon its consultation with the

Advisory Council, HUD did make some modifications to the proposed

standards, with the result that they became less stringent. The

Advisory Council wanted more modifications, more studies, and more

consultation, but HUD is the decisionmaker and the process must end

sometime. If we were to require reconsultation whenever the

Advisory Council demanded it, the process might never end. Further

delay in this instance would have resulted in the continuation of

standards that even the manufacturers concede were inadequate and

needed revision. The manufacturers' brief states that they "have

never disputed the need for some strengthening of manufactured home

standards to conform with those generally accepted for site-built

housing ..." Although HUD abandoned its goal of having the rules

in place by the 1993 hurricane season, there was still a vital

interest in not postponing the effective date of the amended rules

too far into the future. Public safety was involved, and it is no

exaggeration to say that too much delay could have resulted in the

loss of life. We hold that it was reasonable for the agency to
interpret the feasibility language in § 5404(b) as not requiring it

to reconvene the Advisory Council under these circumstances.

The manufacturers rely on National Constructors Ass'n v.

Marshal, 581 F.2d 960 (D.C.Cir.1978), but that case is

distinguishable. In it, an order by the Secretary of Labor was

remanded, because the department had issued its rule without

adequately consulting with an advisory committee as required by

statute and regulation. Id. at 971-72. However, in that case the

operative language directed that the agency "shall consult,"

without limiting that duty "to the extent feasible," id. at 964 n.

4, 967, which is a significant qualifying phrase in the statutory

language before us. Moreover, in Marshal, the advisory committee

was consulted on one proposed standard, but was not consulted at

all about a subsequently developed standard that was "fundamentally

differ[ent]" from the first. Id. at 970 n. 27. Because the second

standard was not a "logical outgrowth" of the proposal originally

presented to the committee, the Marshal court held that the

mandatory consultation requirement had not been met. Id. at 970-71

& n. 27. In this case, we do not believe that the final standards

were so substantively different that they cannot be considered a

"logical outgrowth" of the proposed standards upon which the

Advisory Committee was consulted.4 This conclusion is bolstered by

4
The "logical outgrowth" test is normally used by courts to
determine whether an agency's final standards are sufficiently
different from the proposed standards so as to require a new
notice and comment period under the APA. See, e.g., Association
of American R.R.s v. Department of Transp., 38 F.3d 582, 588
(D.C.Cir.1994); Northwest Tissue Ctr., 1 F.3d at 528 & n. 7;
Chemical Mfers. Ass'n v. EPA, 870 F.2d 177, 200-03 (5th
Cir.1989), cert. denied, 495 U.S. 910, 110 S.Ct. 1936, 109
L.Ed.2d 299 (1990). This case presents a question involving a
the fact that the final rules were less, not more, rigorous than

the proposed rules. The statutory requirements and rulemaking

history in this case are simply not analogous to those involved in

the Marshal decision.

The statute requires HUD to "consult" with the Advisory

Council, and the agency did so. Even if HUD could have reconvened

the Advisory Council in the six months between the Council's only

meeting and publication of the Final Rule, under the facts of this

case, it was reasonable not to do so. We therefore conclude that

the agency's determination of non-feasibility under the facts of

this case was not "arbitrary, capricious, or manifestly contrary to

the statute." Chevron, 467 U.S. at 844, 104 S.Ct. at 2782.

B. THE MEANING OF "COST"

As discussed on p. 3 above, the Manufactured Housing Act, 42

U.S.C. § 5403(f), sets out five specific requirements for HUD to

follow when establishing manufactured housing standards. The

fourth such criterion directs HUD to "consider the probable effect

of such standard[s] on the cost of the manufactured home to the

public." 42 U.S.C.A. § 5403(f) (1983). The manufacturers argue

that this factor refers solely to the consumer purchase price of

manufactured homes and that HUD has misinterpreted the meaning of

"cost" by giving it a much broader definition. The manufacturers

point to a statement made by HUD in its denial of the

manufacturers' Application for Stay in which the agency stated that

consultation requirement instead of the APA's notice and comment
procedures, but we believe that the logical outgrowth test
provides a helpful analogy for analyzing the consultation
requirement.
the meaning of cost is "not limited to [a manufactured home's]

purchase price but includes the potential costs to the public if

the home is involved in a disaster."

According to the manufacturers, this interpretation is

contrary to the plain meaning of "cost" and thus the standards were

not promulgated in accordance with the law. Instead of simply

considering consumer costs, they contend, HUD merged the consumer

cost factor into a cost-benefit analysis and concluded that the

benefits to society outweighed any price increases. The

manufacturers argue that when the price increases were subsumed

into a more general weighing of societal costs and benefits, the

true impact of price increases was minimized because they were

offset by general benefits to the government and public at large,

as distinguished from the "public" referred to in § 5403(f)(4),

which the manufacturers contend means only those members of the

general public who live in manufactured homes. Thus, they argue,

HUD's interpretation denied consumer price increases their proper

consideration as an independent factor.

We need not determine the meaning of "cost" or "public" in §

5403(f)(4), because we find that HUD has complied with the Act even

under the limited meaning the manufacturers would give those two

terms. The manufacturers acknowledge that HUD has considered the

effect of the regulations on consumer purchase prices; in fact,

they contest HUD's purchase price impact figures in a separate

argument. See infra at Part IV.C.1. The crux of their claim is

that HUD has erred by merging cost into a general cost-benefit

analysis, instead of considering it as a separate, independent
criterion. Although this claim may have some semantic appeal,

there is no statutory support for it. The Act requires that the

agency "consider" cost, which the manufacturers concede was done,

but the Act does not indicate precisely how HUD is to consider this

factor, or how much weight the agency should give cost in weighing

it against other factors. When it prescribed the factors HUD

should consider, Congress did not establish a strict algebraic

formula in which the agency simply plugs in the numbers, as the

manufacturers seem to suggest. As this Court recently stated: "we

decline the ... invitation to require an agency to accord greater

weight to aspects of a policy question than the agency's enabling

statute itself assigns to those considerations." Hussion, 950 F.2d

at 1554. As long as the agency gives fair consideration to the

relevant factors mandated by law, the importance and weight to be

ascribed to those factors is the type of judgment that courts are

not in a position to make. Instead, that judgment is for the

agency:

While agencies are not directly accountable to the people, the
Chief Executive is, and it is entirely appropriate for this
political branch of the Government to make such policy
choices—resolving the competing interests which Congress
itself either inadvertently did not resolve, or intentionally
left to be resolved by the agency charged with the
administration of the statute in light of everyday realities.

When a challenge to an agency construction of a statutory
provision, fairly conceptualized, really centers on the wisdom
of the agency's policy, rather than whether it is a reasonable
choice within a gap left open by Congress, the challenge must
fail. In such a case, federal judges—who have no
constituency—have a duty to respect legitimate policy choices
made by those who do.

Chevron, 467 U.S. at 865-66, 104 S.Ct. at 2793.

Moreover, the fifth requirement under § 5403(f) mandates that
the agency consider "the purposes of this chapter," which are

defined as reducing injuries, deaths, insurance costs, and property

damages, see 42 U.S.C.A. § 5401 (1983). As HUD points out, even if

the definition of "cost" under § 5403(f)(4) does not include a

consideration of general societal costs other than purchase price

increases, § 5403(f)(5) certainly does. Not only is it permissible

for HUD to balance the cost to the general public of wind damage to

manufactured housing against price increases, § 5403 requires the

agency to do so. Whether the agency does so under its

consideration of § 5403(f)(4) or § 5403(f)(5) is immaterial. Even

if we accept the manufacturers' definition of "cost" and "public"

in § 5403(f)(4), the agency complied with the Act.

C. ARBITRARY AND CAPRICIOUS REVIEW OF THE NEW STANDARDS

The manufacturers contend that the new wind standards are

arbitrary and capricious in four different respects. We consider

each of these arguments separately.
1. The Cost and Benefits of the New Standards

In the Final Rule, HUD acknowledged that the new regulations

would increase costs to consumers, but justified those increases on

the grounds that the stricter standards would reduce losses from

wind damage to manufactured housing occupants and the general

public, and because they would help to avoid the "inestimable costs

of devastation to people's lives and emotional health and to the

communities" caused by severe hurricanes. Final Rule, 59 Fed.Reg.

at 2457-58. HUD explained that its statutory mandate required it

to look at more than economic considerations in promulgating

regulations. It also concluded that the new regulations were in
the "optimal societal interest" because the "savings in storm

damage repair, loss of personal property, and potential personal

injury or loss of life, in addition to other expected benefits,

exceeds the cost differential" for the new wind standards. Id. at

2461-62.

HUD quantified these costs and benefits in its Regulatory

Impact Analysis ("RIA"). Using data from the damage caused by

Hurricane Andrew, the RIA delineated three types of benefits that

would result from the new standards: (1) reductions in property

damage borne by residents and insurers; (2) reductions in federal

disaster relief expenditures; and (3) reductions in deaths and

injuries. According to the RIA, the new standards would reduce 75%

of the property damage sustained by manufactured housing during

"severe wind events" in Wind Zone II, and 83% of the damage in Wind

Zone III. Balanced against these benefits were increased costs of

production caused by compliance with the new standards, although

HUD determined that only a portion of the increased costs would be
5
passed on to consumers in the form of higher prices. HUD

concluded in the RIA that the new standards would produce an annual

benefit of $83.8 million and an annual cost of $51.7 million,

resulting in an annual net benefit of $32.1 million.

After the Final Rule and the RIA were issued, the

manufacturers submitted their Application for Stay to HUD,

requesting that the agency stay the effective date of the new

5
For example, although HUD estimated that the production
costs for a single-section manufactured home in Wind Zone III
would increase by $2,119, it estimated that the price to
consumers would increase by $1,177.
regulations pending judicial review. The manufacturers contended

that two reports submitted with the Application for Stay (the

"Meeks Report" and the "De Alessi Report") demonstrated that the

data and methodology HUD used to calculate the cost and benefits

were fundamentally flawed. HUD rejected the manufacturers'

arguments and denied the Application for Stay.

Before this Court, the manufacturers again challenge HUD's

determination in the Final Rule and the RIA that the new wind

standards would produce a net economic benefit, and claim that HUD

has not adequately addressed the arguments made in the Application

for Stay and the Meeks and De Alessi Reports. The manufacturers do

not contend that the Act requires the agency to undertake a

cost-benefit analysis before promulgating new regulations; in

fact, as discussed in the preceding section, they argue that HUD as

a matter of law should not subsume consumer costs into a general

analysis of societal costs and benefits. However, to the extent

that HUD relied on projections indicating that the benefits of the

new standards will outweigh the costs as the primary basis for

issuing the new standards, the manufacturers assert that these

figures relied upon are flawed, making adoption of the new

regulations arbitrary and capricious.

Before considering the manufacturers' challenge, we address

the dispute between the parties as to what materials are properly

included in the rulemaking record. HUD argues that the Meeks and

De Alessi Reports and the arguments first made by the manufacturers

in their Application for Stay should not be considered by this

Court on appeal because the studies and arguments were submitted
after HUD issued its Final Rule. HUD also contends that the RIA is

not an appropriate object of attack because it was undertaken

pursuant to an Executive Order6 solely as an internal managerial
tool for the federal government. In response, the manufacturers

argue that the Application for Stay and the accompanying reports

should be included in the rulemaking record because the economic

data and analysis used by HUD to support the new wind standards

were not disclosed to the public until the Final Rule and the RIA

were issued. They also state that the RIA should be open to

challenge because it was cited by HUD in the Final Rule to

demonstrate that the agency had considered consumer costs as

mandated by the Act.

We need not resolve this dispute about the rulemaking record,

because HUD's reliance on its cost and benefit figures as support

for the new wind standards is not arbitrary and capricious, even

assuming that the manufacturers' Application for Stay and the two

economic reports accompanying it are included as part of the

rulemaking record. Because we assume for the manufacturers that

the studies and arguments contained in their Application for Stay

are part of the record, we must also assume that HUD's denial of

the Application for Stay, which responded to these studies and

arguments, is part of the record, too. With these twin

assumptions, we proceed to explain why the agency's cost and

benefit analysis was not arbitrary and capricious.

In the Application for Stay, the manufacturers first

challenged the RIA's projections of the cost increases associated

6
Exec.Order No. 12866, 58 Fed.Reg. 51,735 (1993).
with the new standards. Using estimates from an industry study

instead of the figures calculated by HUD, the manufacturers argued

that the cost of producing manufactured houses complying with the

new wind regulations would be double that of HUD's predictions.

Moreover, they asserted that the RIA underestimated the amount of

the cost increases that would be passed on to consumers as higher

prices. According to the De Alessi Report, the latter error

resulted from HUD's use of the national housing market, instead of

the individual manufactured housing submarkets of Wind Zones II and

III, to measure the elasticity of supply of the manufactured

housing industry. The elasticity of supply measures how the market

supply will respond to changes in price and is an important factor

in forecasting how much consumer prices will rise when production

costs are increased.

Arguing that the RIA overstated the extent of losses inflicted

on manufactured housing by Hurricane Andrew, the manufacturers also

contended that HUD's estimates of the benefits accruing from the

new standards were significantly exaggerated. Specifically, the

Meeks Report criticized HUD's estimate of insured losses from

Hurricane Andrew, because more recent data indicated that the

actual amount of insurance payments caused by that storm was almost

half the figure used by HUD. In addition, the manufacturers argued

that HUD's projections of uninsured losses and federal disaster

relief expenditures caused by Hurricane Andrew were incorrectly

calculated. Because the only available data on uninsured losses

and federal relief payments induced by Hurricane Andrew were for

all types of housing, HUD estimated the amounts directly
attributable to manufactured housing by multiplying the total

figure by the ratio of the number of destroyed manufactured houses

to the number of all destroyed houses. The manufacturers claimed

that that ratio was methodologically unsound, because the median

cost of a manufactured house is only 37% of the median cost of

conventional housing. Accordingly, they asserted, the actual

amount of uninsured losses and federal relief payments attributable

to manufactured housing should have been much smaller than that

projected by HUD.

Applying their adjusted cost and benefit calculations, the

manufacturers contended in the Application for Stay that the new

standards would result in a net loss to society of $61.3 million

per year. On appeal, they argue that because there will be a net

societal loss rather than gain as a result of the new standards—and

because HUD's regulations were justified by its determination that

the standards would be economically beneficial—the new wind

standards are arbitrary and capricious and should be set aside.

We disagree. We believe that HUD has given a logical

explanation for the cost and benefit figures it relied on in

promulgating the new wind standards, and that it provided in the

Final Rule and the denial of the Application for Stay a reasoned

response to the manufacturers' comments and criticisms.

Specifically, we conclude that HUD is entitled to rely on the cost

estimates calculated by its own engineering staff rather than the

figures submitted by the industry's trade association, because our

review of the record does not indicate that the agency's

projections are either flawed or unreasonable. See North Buckhead,
903 F.2d at 1539 ("When specialists express contrary views, an

agency must have discretion to rely on the reasonable opinions of

its own qualified experts even if, as an original matter, a court

might find contrary views more persuasive.") (citation and

quotation marks omitted)). The record also demonstrates that HUD's

estimate of the amount of cost increases that will be passed on to

consumers is based on rational economic analysis.

In addition, we find that HUD has justified its reliance on

the public and private benefits cited in the RIA. For example, in

response to the manufacturers' attack on the ratio used to

calculate the uninsured losses of and federal relief payments to

manufactured housing owners caused by Hurricane Andrew, HUD's

explanation included the fact that even though manufactured houses

have a lower value on average than other housing, manufactured

houses generally suffer a higher level of damage. Moreover,

although the manufacturers are correct that more recent data

suggest that insurance payments for property damage did not reach

the levels originally projected by HUD, there is still a net

societal benefit even if the updated insurance figures are

substituted into the analysis.

Simply put, the manufacturers have not convinced us that HUD's

explanation "runs counter to the evidence before the agency, or is

so implausible that it could not be ascribed to a difference in

view or the product of agency expertise." State Farm, 463 U.S. at

43, 103 S.Ct. at 2867. The role of this Court is not to decide

whether HUD or the manufacturers used the better technical data and

methodologies; instead, our task is to determine whether HUD's
explanation of its administrative action demonstrates that it has

considered the appropriate factors required by law and that it is

free from clear errors of judgment. Id. at 43, 103 S.Ct. at 2866-

67.

Our conclusion that HUD's cost and benefit projections are not

arbitrary and capricious is bolstered by two additional, but

related, considerations. First, the manufacturers' projection of

a net annual loss does not take into account their own concession

that the wind standards needed to be amended, at least to some

extent. Thus, the manufacturers' claim of a $61.3 million net loss

loses some of its force, because both parties agree that the

preamendment status quo is not a viable option.

Second, we agree with HUD that it is not confined by the Act

to promulgating new wind standards that will produce a net economic

gain. HUD did assert in the Final Rule and the RIA that the

projected economic benefits of the amendments would outweigh the

economic costs. In addition, however, HUD explained that the need

to increase safety and prevent future devastation to communities,

such as that caused by Hurricane Andrew, justified increasing

consumer prices for manufactured housing. This explanation is

consistent with the agency's statutory mandate. Congress has

required HUD to consider, in addition to consumer cost, the

purposes of the Act—which include reducing injuries, deaths,

insurance costs, and property damage. 42 U.S.C. §§ 5401, 5403(f).

Our review of the rulemaking record as a whole convinces us that

HUD, in determining that the necessity of improving the safety of

manufactured housing made the attendant cost increases acceptable,
used its "best judgment in balancing the substantive issues."

North Buckhead, 903 F.2d at 1539. We will not substitute our

judgment for that of the agency. Id.
2. Terrain Exposure Categories

Because wind damage to structures is affected by natural

topography and man-made construction, the ASCE 7-88 standard, which

the agency adopted as the basis for the new regulations,

establishes four "terrain exposure categories" to reflect the

surrounding terrain in which a structure is to be sited. These

exposure categories can be briefly described as follows: Exposure

A: large city centers; Exposure B: urban, suburban, and wooded

areas; Exposure C: open terrain with scattered obstructions; and

Exposure D: flat areas exposed to wind approaching over large

bodies of water.

The manufacturers argue that the new wind regulations are

arbitrary and capricious because they impose on all manufactured

homes, regardless of the actual exposure category in which the

homes may be located, standards that are based on Exposure C areas.

For example, they say that even though 80% of the area in Dade and

Broward Counties in Florida qualifies as Exposure B, manufactured

homes located there must meet the stricter requirements for the

Exposure C category. Thus, the manufacturers argue, the wind

regulations are arbitrary and capricious because they ignore the

statutory criterion that the standards be reasonable "for the

geographic region for which [they are] prescribed." 42 U.S.C.A. §

5403(f)(3) (1983).

HUD has provided a sensible explanation for adopting a single
exposure level for the new wind standards. It chose Exposure C in

the reasonable expectation that most of the manufactured housing

will be located in Exposure C conditions. Although HUD could have

permitted homes located in Exposure B areas to have somewhat more

lenient standards and could have required homes located in Exposure

D areas to have somewhat more stringent standards, we cannot

conclude that it was unreasonable to choose an intermediate

exposure category that provides reasonable protection for all areas
7
in Wind Zones II and III. HUD explained that it chose a single

exposure category so that dealers could stock inventories, and

would not be required to order each home based on the individual

customer's location. Because HUD neither refused to consider the

appropriate factors nor committed a clear error of judgment, the

agency's decision to adopt Exposure C wind standards for all Wind

Zone II and III areas was not arbitrary and capricious.
3. Achieving HUD's "Stated Purpose"

The manufacturers next contend that the new wind standards

are arbitrary and capricious because they cannot achieve the

"stated purpose" of the regulations: preventing manufactured

housing damage from another Hurricane Andrew. According to the

manufacturers, since Andrew's 145 miles-per-hour winds would cause

damage even to manufactured homes built according to the revised

standards, the cost increases associated with the new standards are

7
Under the new regulations, manufacturers are required to
post a notice on manufactured homes warning consumers that the
manufactured home has not been constructed for use in coastal
areas and that it should not be placed within 1500 feet of the
coastline unless the home has been designed to meet the Exposure
D requirements of ASCE 7-88. See Final Rule, 59 Fed.Reg. at
2465-66, 2469.
not justified.

Of course, the manufacturers previously argued that the new

standards are arbitrary and capricious because they go too far, and

now they contend that the regulations are arbitrary and capricious

because they do not go far enough. Moreover, it is not at all

clear that the "stated purpose" of the wind standards is to prevent

damage from another Hurricane Andrew. Although Hurricane Andrew

was the catalyst behind strengthening the standards, which even the

manufacturers admit are too lax, the purpose of the changes

according to the Final Rule is simply to increase safety "in areas

where wind-induced damage is a particular hazard and risk." Final

Rule, 59 Fed.Reg. at 2456. That they do.

Even if the standards were promulgated in order to prevent a

reoccurrence of damage of the extent caused by Hurricane Andrew, we

still would not find that these standards are arbitrary and

capricious. We agree with HUD that the regulations are not invalid

merely because they fail to solve every weather-related problem and

cannot completely prevent damage from another storm of the ferocity

of Hurricane Andrew. Like most regulations of this nature, the

utility of the revised wind standards is measured not in terms of

absolutes, but in increments of improved safety. According to HUD,

estimates of Hurricane Andrew's maximum wind speeds indicated that

approximately three percent of the storm area experienced wind

speeds of 140 miles per hour or more. Even if manufactured homes

constructed under the new regulations would not have been able to

survive Hurricane Andrew's peak winds, the new wind standards would

have helped to prevent significant damage to the manufactured homes
located outside of those areas hit by the storm's strongest winds.

That may be the most that can be hoped for. It is enough to

convince us to reject the manufacturers' all or nothing contention.
4. Accommodation of Consumer Choice

In a related argument, the manufacturers contend that because

hurricane risks cannot be eliminated completely, consumers must be

given the informed option to sacrifice some hurricane protection in

exchange for lower housing costs. According to the manufacturers,

by including cost and geographic reasonableness criteria in the

Manufactured Housing Act, Congress indicated that consumer choice

should be accommodated. Citing Chrysler Corp. v. Department of

Transportation, 472 F.2d 659 (6th Cir.1972), the manufacturers

analogize the new wind standards to the regulation of convertibles

and sports cars under the automobile safety standards of the Motor

Vehicle Safety Act. In Chrysler, the Sixth Circuit observed that

soft top convertible cars were "inherently incapable" of meeting

certain safety standards, such as rollover requirements, imposed on

the automobile industry by that legislation. Finding that the

legislation was not intended to eliminate sports cars and

convertibles from the market, the court remanded the case to the

agency for reconsideration of the safety standard. Id. at 679-80.

The Chrysler decision, the manufacturers assert, means that HUD

should be prevented from the kind of "governmental paternalism"

that denies consumers the ability to choose to live more cheaply

and less safely. Because the new standards foreclose the cheap and

dangerous option, they are arbitrary and capricious, the argument

goes.
 We find this argument unpersuasive for three reasons. First,

the Manufactured Housing Act is not analogous to the Motor Vehicle

Safety Act, because the safety standards at issue under the two

acts have different purposes. The regulations under the Motor

Vehicle Safety Act that were challenged in Chrysler concerned

passive restraint devices designed to protect occupants of an

automobile. Id. at 664. In contrast, the wind standards

promulgated under the Manufactured Housing Act are designed to

protect not only the occupants of manufactured homes, but also

other members of the public who could be affected by flying debris

during high winds. See Final Rule, 59 Fed.Reg. at 2457-58. HUD

quoted in the Final Rule a Federal Emergency Management Agency

(FEMA) study that found the disintegration of siding and roofs of

manufactured homes " "contributed significantly to the generation

of airborne debris' " during Hurricane Andrew. Id. at 2462.

Potential victims of flying debris from manufactured housing,

unlike the purchasers of convertibles, do not have the opportunity

to choose between cost and safety. What the manufacturers propose

would be the equivalent of allowing automobile purchasers to buy at

a discount automobiles with unsafe brakes, a consumer choice option

that would sacrifice the safety of innocent people who would be

given no choice in the matter.

A second difference between the Chrysler decision and this

case is that convertibles and sports cars were found to be

"inherently incapable" of complying with some of the requirements

in the Motor Vehicle Act that hard top vehicles could meet.

Chrysler, 472 F.2d at 679. There is no suggestion in this case
that the technology does not exist for the industry to comply with

the Manufactured Housing Act. In the Chrysler decision, a

convertible could not comply with the automobile rollover standard

and still remain a convertible. In this case, a manufactured home

that conforms to the new wind standards is still a manufactured

home, albeit a safer and more expensive one.

Finally, and most fundamentally, the consumer's "right to

choose" is not a criterion for decisionmaking under the

Manufactured Housing Act. Allowing consumers to knowingly assume

the risk of unsafe housing may or may not be a good idea, but it is

not one Congress included in the statutory scheme. If the

manufacturers want the statutory criteria for promulgating

manufactured home standards changed, they should direct their

arguments to Congress.
V. CONCLUSION

For the reasons stated in this opinion, the manufacturers'

petition for review is DENIED.