Part-5

Enumerated purposes 3 - 5:

People traditionally believe that construction standards are established to assure the public safety. While there is always some trade off with cost, safety has always been the overriding consideration in the establishment of construction standards in the United States. This industry wants government construction standards because a product built to government construction standards creates the perception that the product must be safe. The problem lies in that this industry wants "cost" to be the overriding consideration in the establishment of construction standards, not safety.

It is a fantasy that constructions standards established with emphasis on initial product cost can provide for safe housing by accepted Engineering practices in the United States. In essence, the industry wants to use people's learned beliefs concerning the purpose for construction standards, and most peoples very limited understanding concerning the technical aspects for establishing construction standards, to increase their sales and their profit margin. It will be apparent by the end of this discussion of enumerated purposes (3) through (8) that Congress has given the industry what it wanted, and did so at the expense of those who will purchase and live in this product.

Enumerated purpose (3) states:

What you may have noticed is that the words "and Safety" have been eliminated in enumerated purpose (3) from what is being established. The elimination of the term "safety" is consistent with eliminating "performance" as a requirement of the standards since "safety" is strictly related to performance.

Some will argue that the exclusion of the words "and safety" is an oversight. In the cut and paste world of computer word processing software, and with the words "and Safety" coming between "Construction" and "Standards", it is more probable that these words were deliberately deleted from this enumerated purpose. This being deliberate will be supported by the discussion of this, and the other enumerated purposes.

Enumerated purpose (3) is the only enumerated purpose in which Congress directs what it wants to establish. The mentioning of safety, quality, and durability in the other enumerated purposes is carefully used to never create a connection to enumerated purpose (3), i.e. the purpose for establishing the federal standards. The new provisions of the Manufactured Housing act state that the Secretary shall establish, by order, appropriate Federal manufactured home construction and safety standards, which meet high standards of protection consistent with the purposes of this title. This makes the enumerated purposes for this Act the defining text in the development of the standards, regardless of the use of the word "safety" in connection with the standards at any other point within the Act. Congress says in its purpose that it wants to establish Construction Standards, not Construction and Safety Standards. Therefore, to be consistent with the purposes of this Act, Construction standards must be established. At no point throughout the provisions for this Act, which are related to the establishment of the federal standards, does it indicate or imply that what is being established is "construction and safety standards". This may seem unimportant, but by the end of this discussion, it will be apparent that these seemingly unimportant exclusions of words have a significant impact on the purpose for this federal program.

The affect of eliminating the term "maximum" from the provisions for establishing the federal standards was discussed in Part-1 of this series. No one is affected by the performance of manufactured housing until it is completed at the home site and is in use by the purchaser.

The term "and" made "safety" an inseparable part of the reason for establishing the federal standards for manufactured housing. The combined terms gave the Secretary of Housing authority that reached well beyond the limitations that HUD self-imposed on itself to please this industry and the elected officials who support this industry.

"Safety" is defined as: being able to use without hindrance, or restraint from danger, injury, or damage. Establishing construction standards is one thing, but establishing construction standards with safety in mind is another. Most have witnessed via the news the devastation caused by some natural event to a city in some Third World country. In the investigations that follow such events, it is learned that construction standards were in place. However, because of greedy builders and corruption in the government, the construction standards were not established with emphasis on safety, but with emphasis on the cost to the builder for constructing such buildings and/or dwellings, which should not be confused with the cost of the product to the public. The building standards that were in place were largely unenforced, compounding the magnitude of the disaster. As a result, the construction programs in these Third World countries intended to provide safety to the public were inadequate to reduce the amount of devastation and loss of life that occurred. What is considered safe in the United States is well established in the Practice of Engineering, and the law. Therefore, if Congress directed within its purpose that the objective was to establish Construction and Safety standards, this could be used to limit how low the bar could be lowered.

The discussion of this purpose will begin by giving you examples of what this industry considers cost effective construction techniques, which the government will encourage. These examples also come from the same HUD publication that was cited in Part-3 of this series.

It makes one wonder why someone might perceive such cost cutting measures as resulting in inferior safety and durability.

If you have a 3 to 1 pitch roof with trusses constructed of wood that is dimensionally 1 ½" x 3 ½" (standard 2" x 4"), and 3 to 1 pitch roof with trusses constructed of wood that is dimensionally 1" x 1 ½" (non-standard)(1/8" dimensional loss per saw cut), which is stronger? To make any claim that they are equivalent would be ludicrous, but this is an example of what this legislation requires HUD to promote as equal.

It is inconceivable that a home without exterior sheathing could meet the wind-load requirements of the federal standards for even Wind Zone I (80 mph). A home that excluded exterior sheathing would have had only vinyl siding on the outside, since wood or hardboard siding could be considered an exterior sheathing, and other exterior finishes used by this industry could not be installed without some form of exterior sheathing.

Homes with the doorstops eliminated except at the strike jamb would be much less resistant to flame and smoke spread, and it is highly questionable if such homes would have met the flame and smoke spread requirements of the federal standards.

It is stated that "these practices were QUITELY ABANDONED", and keep in mind; it says "MANY HOMES", not some homes. Quietly abandoning such practices is a government acronym for "sweeping it under the rug" and is a good indication that HUD and the manufacturers know that these cost cutting measures did not measure up to the federal standards.

These types of practices will result in inferior safety and durability and for the government to state otherwise would be untrue. The government should not be downplaying, as in this publication, nor encouraging such practices.

The purpose for enumerated purpose (5) is to create confusion as to the meaning of the phrase "Manufactured home safety", and not to protect manufactured home owners as it is presented.

Note: keep in mind the definition of "safety" in the discussion of enumerated purpose (3) and what was said in the discussion.

"Protect" is defined as to shield from injury, danger, or loss. So why is Congress restating at the end [from risk of personal injury and property damage] what has already been stated at the beginning [protect]? "Danger" covers a wide spectrum, which includes; "peril". "Peril" suggests great and imminent danger of "death". Congress restated at the end what was said in the beginning to limit the doctrinal meaning of "protect" so as not to include the term "danger", thereby eliminating "death" as something from which Congress wants to protect manufactured home owners.

The purpose of the original Act was to reduce the number of personal injuries and "deaths" and the amount of insurance costs and property damage resulting from manufactured home accidents.

This meant that the original federal program established to regulate the construction of manufactured housing would have always be seeking to improve the safety, durability, and quality of manufactured housing. If you have not noticed, the term "death" is no longer included in any of these enumerated purposes, which is consistent with limiting the term "protect" so as not to included "death". Congress made sure that no one misunderstood that Congress does not want to protect people from being killed as a result of unsafe manufactured homes. The legal definition of "personal injury" excludes "death". "Death", as it was used in the original Act is legally defined as "death occurring within a short time after injury".

Congress eliminated the term "death" or anything that references the term "death" because it raises the bar for the level of safety that the standards need to provide. Restated; the standards adopted as a result of this amendment will seek to prevent injuries not serious enough to cause death, but will not go so far as to seek to prevent injuries that are serious enough to cause death. This is consistent with the removal of the term "maximum", thereby removing the performance requirement for the standards. This is consistent with the elimination of the words "and safety", which is strictly a performance criterion, from the description of what it is that Congress wants to establish.

Standards, which sought to prevent death, would need to seek the highest standards of protection, and Congress replaced the term "highest" with "high".

The term "high" is somewhat ambiguous in nature, i.e. a person that is 5-feet tall may not be able to reach an item on a shelf, whereas a person that is 6-feet tall may be able to reach that item. What was too high to the 5-feet tall person was not too high to the person that is 6-feet tall. This permits the bar to be lowered to some unknown level, to be determined by what is affordable to "all" Americans, which as previously discussed, is also ambiguous.

This is consistent with the removal of the terms "death", "maximum", "reduce", "highest", and "safety" as it relates to Congress's description of what it is that is being established, from the Manufactured Housing Act.

In the original "Manufactured Housing Act" Congress said that it wanted to protect the public from manufactured home accidents. Congress's new purpose for the Act does not tell anyone what can cause injury and property damage to the owners of manufactured homes. Without knowing what it is that Congress wants to protect manufactured home owners from, it would be necessary to protect them from everything, which makes enumerated purpose (5) ambiguous at best. Who knows, maybe Congress wants to protect manufactured home owners from someone who might cut down their trees [property damage], or tripping over the garden hose and hurting themselves [personal injury]. This is consistent with the types of damage and injuries that HUD reported in its last report to Congress on "Manufactured home safety". This gives credibility to the concept that Congress is seeking to protect manufactured home owners from people who might cut down their trees and/or from tripping over their garden hose, and not from unsafe manufactured housing.

"To reduce the amount of insurance costs" - The implication was that manufactured homes could be the cause of accidents that could increase the cost of insurance to the public. This creates a "public exigency" for safe manufactured housing. This could have been used to prevent the industry and its business partners at HUD from narrowing the meaning of public to only manufactured home owners, so it was eliminated from the Act.

The elimination of insurance costs, coupled with Congress's specification that the purpose of this Act is to protect only manufactured home owners from personal injury and property damage, solidifies the exclusion of the "public exigency" in safe manufactured housing. The reason for excluding the public interest was discussed in the Press Release, which is available on the TAISMHO Home Page.

The definition of "manufactured home safety" provides a good example of how the purpose of an Act can affect the meaning of provisions contained within an Act.

The Act requires that the standards established be consistent with the purpose(s) for this Act, and not what is necessary to carry out this Act. Therefore, what role does this definition play in the establishment of the standards?

While the definition remains as it was in the original Act, it will always be in conflict with the new purpose for this Act. As previously noted, the standards must be consistent with the new purpose(s) for this Act. Manufactured Home Safety is what we are being led to believe is the purpose for this Act and by Congress undermining the most central element of this Act, this makes the entire Act of little, if any value to the consumers of this product (the public). This will also precipitate court challenges by the manufacturers if any meaningful standard(s), or standard(s) not to their liking, are adopted, which will create long delays in implementing these standard(s) even if the courts eventually find in favor of the adopted standard(s). Given these new purposes, it is not likely that any standard submitted to improve the safety of manufactured housing, which causes any increase in the cost of this product, will survive a court challenge, which will lead the Secretary to reject the proposed standard without any further consideration.

This legislation eliminates the public exigency in safe manufactured housing and provides room for Local Code Jurisdictions to offer greater protections, i.e. to seek to prevent death to manufactured home owners and the public because of unsafe manufactured housing. In conclusion, with the passage of this legislation, there is no longer a legal basis for federal law to preempt State law in regards to the safety of manufactured home owners and the public. Therefore, the Federal Construction standards cannot legally preempt local jurisdictions from imposing stricter construction standards, which seek to prevent death to manufactured home owners and the public. A Federal law cannot preempt that which is not the purpose or intent of the Federal law.