Part-6

Enumerated Purposes 6 - 8

Given the provisions for this supposedly balanced consensus committee, it is a fantasy to believe that this committee can remain balanced even if by some accident it starts balanced.

Don't be misled by the inclusion of the phrase, "and safety" in this enumerated purpose. This is not an indication of what is being established by this consensus process.

The consensus committee will through interpretation, and revision of the Federal Construction and Safety Standards, evolve the federal construction and safety standards into practical, uniform, and, to the extent possible, performance-based Federal construction standards for manufactured homes. Nowhere in the enumerated Congressional purposes for this Act does Congress state that this Act has anything to do with the safety of the public or the user, as it relates to accidents caused by unsafe manufactured housing. The question remains, will this process be a balanced consensus process?

In a letter to Senator Gramm (R-TX), Chairman of the Senate Banking Committee, prior to Congress's passage of this law, the "Office of Government Ethics" wrote:

Congress has given immunity from self-dealing with the industry to the members of the committee who will supposedly be representing the "User Interest group". What is not mentioned is there is a "General Interest group", which will be comprised of government officers and employees, and other interested parties. It is presented that the individuals that represent the "other interested parties" cannot work for the industry at the time of appointment or within the industry for 1 year after they leave the consensus committee. There is no prohibition against them having a significant financial interest in the industry's profit margin while serving on the consensus committee, nor is the ban on employment enforceable by any means.

To understand how these blanket immunities affect this supposedly balance consensus process, it must first be understood what is prohibited by the sections of Title 18, USC, "Crimes and Criminal Procedure" which Congress has given blanket immunity.

A special Government employee is in general subject only to the following major prohibitions:

The non-government members of this committee would be considered as a matter of law, non-advisory since their recommendations can be adopted automatically as federal policy, and nowhere does Congress say that the committees role is only advisory. Therefore, the non-government members of the committee would have been considered "special government employees" if this immunity had not been given by Congress.

An agent is defined as a person or thing that performs an action that brings about a certain result. If the industry is offering gifts, money, and/or lucrative jobs to a member of the consumers' interest group to affect the outcome, and the member accepts, they in fact become an agent for the industry. It goes without saying that an agent of the industry would not take an action that brought about something that negatively impacts the industry's profit margin.

As noted in the bold and underlined part of the paragraph in italics directly above, section 205 also applies to government employees, and they have as well been granted immunity for the purpose of participating on this consensus committee from Title 18; 203, 205, 207, and 208, as they relate to regular government employees and officers who serve on the consensus committee.

This is what the Office of Government Ethics was referring when they said in their letter to Senator Gramm:

"We Strongly believe this blanket immunity will have a detrimental long term effect on the ethics program". This is in reference to the "Ethics in Government Act".

The provisions written in the Act to assure that this committee is balanced, closely parallel the provisions already provided for by Title 18, USC, 203, 205, 207, and 208, so why did Congress exclude these sections in their entirety, and then restate what was already provided for by these sections? This was done to eliminate the penalties, which were provided for under Title 18, for violating the provisions of Title 18. Congress, on behalf of their big business campaign contributors excluded any penalties for consensus committee members for either violating, or being in violation of the rules, that were written to create the illusion that this committee will be balanced. Congress didn't even provide the Secretary of Housing with the authority to discharge a member, once appointed, for violating the rules that Congress wrote to make this a presumably balanced consensus process. In other words, the provisions are "directory statutes" that indicate only what should be done, with no "provision" for enforcement. Without penalties and a mechanism for enforcement, the provisions that are presented to be for assuring that this committee will be balanced are a meaningless diversion intended to hide what certain members of Congress have done for their big business campaign contributors.

The Secretary of a government agency derives his authority to request full financial disclosure from an appointee or applicant from the "Federal Advisory Committee Act" and the "Ethics in Government Act". Since Congress saw fit to do the following, it is highly questionable if the Secretary will have the legal authority to require such disclosure as a requirement of participation on this supposedly balanced consensus process.

Once again, no statutes are provided within the legislation to give the Secretary the authority to request a financial disclosure from any individual for the purposes of assuring that the individual seeking membership does not have a financial interest in the industry. Nor, does the Act provide the Secretary with the authority to discharge or punish any appointee who is discovered to have or obtained a financial interest in the industry.

It is unlikely that the Secretary will have time, within the time allotted to the Secretary by the amendment, to make an informed determination as to the affect the standards and regulations submitted by the consensus committee, have on the safety, quality, and durability of this product. The Secretary of Housing will be forced to either adopt what is submitted without proper consideration, or allow the time to expire, making the adoption automatic and therefore Federal policy.

Allowing the time to expire would provide the Secretary with a convenient excuse when this manifestation of greed and corruption becomes evident in the form of a major disaster; "Congress didn't give us enough time and/or money to do the job right". Congress will do just as they always do and blame the agency, which was witnessed during the Firestone Tire debacle, and blame everyone but themselves, thereby taking no responsibility for their part. In short, they will pass-the-buck, which resolves nothing. Shifting the responsibility is the manufactured housing industry's modus operandi and this should tell you who actually wrote this legislation, which Congress passed for them.

This sounds good, but that's all. This legislation provides for nothing more than uniformly inadequate inspections and enforcement, which makes uniform and effective enforcement nothing but an illusion.

The stated objective of enumerated purpose (7) is greatly hindered by the next enumerated purpose for this Act. In enumerated purpose (8), it states; to assure the need for, affordable manufactured housing is duly considered in all determinations relating to the Federal standards and their enforcement.

HUD charges the costs of enforcement activities to the manufacturer in the form of label fees, which per this amendment, Congress will now determine in annual appropriations when and if there will be an increase in label fees, and how this money will be used by HUD (this effectively assures that no increase will be allowed, nor has there been one since the inception of this program in 1976). The manufacturer in turn passes these costs to the consumer. This creates a loop where the manufacturers can claim that any increase in the cost of label fees for inspection and enforcement purposes causes an increase in the cost of this product, thereby affecting its affordability.

In short, inspections and enforcement will be limited to those that do not affect the initial cost of this product.

By tying the standards and the enforcement of the standards to the initial cost of this product, and by not tying enumerated purposes (1) and (2) to the initial cost of this product, Congress has established an order for the use of the fees.

In addition, Congress has limited monitoring of the private third party agencies hired by the manufacturer (DAPIA's and IPIA's) or an Approved State Agency if the State chooses to carry out in-plant inspections (There are few).

"Monitoring" - means the process of periodic review of the primary inspection agencies, by the Secretary or by a State agency under an approved State plan pursuant to section 623.

Periodic means that the monitoring activities will be accomplished at specified intervals or scheduled [uniform], therefore, how often and when a manufacturer's inspectors can be monitored to assure that they are assuring that, the manufacturers are complying with the standards can be marked on the calendar. As well, Congress did not provide for unannounced inspections or follow-up inspections no matter how egregious the violation(s) discovered during the scheduled monitoring inspection of the manufacturer's agent inspectors.

Would you feel safe eating out if you knew the following?

Without follow-up inspections, there is no way to determine if a manufacturer corrected the non-compliances that were discovered during the inspection. Without unannounced inspections, the manufacturer and their agent inspectors will always have time to assure that they are not violating the standards on the day they will be monitored, and/or make changes to paperwork to create the appearance of compliance.

In addition, Congress limited the scope of inspections that can be carried out at places where manufactured homes are offered for sale to the public.

Section 5402, Definitions:

First, the scope of retailer compliance under the original Act was limited to collecting names and addresses of purchasers for the manufacturer. It was the manufacturers responsibility to assure that all other federal requirements had been met.

The Manufactured Housing Act states that for purposes of enforcement of this chapter the Secretary is authorized to enter any establishment in which manufactured homes are for sale to inspect any such establishment.

For the purpose of enforcement of this chapter meant that the Secretary could inspect homes at the retail location, which meant prior to sale to the public, for determining manufacturer compliance with the standards. This meant that if non-compliances were discovered, that the Secretary could enforce the law and prohibit the sale of such home (rare event) to the public until the problem(s) was remedied. In fact, such efforts were undertaken by a HUD contractor and HUD, at the industry's request, suspended these operations. Some 535 violations of the federal standards were discovered during these inspections and HUD did nothing to assure that the defects were corrected or prevent these homes from being sold to the public. In short, (20)(a) and (b) are for the purpose of preventing inspections that could prevent the manufacturers from selling their defective products to the public, by limiting the scope of inspections previously allowed for by the Act.

Once in the hands of the consumer, this leaves the consumer with the new "VOLUNTARY" dispute resolution process, which does not provide the authority to anyone to order anyone to correct any defects in the home, no matter how egregious. The other option is incurring expensive legal expenses, which most low-income Americans cannot afford. In addition, Attorneys are hesitant to take such cases on contingency because judgments or settlements are often limited by law, and as a result, there is virtually no money left, or the client owes more money for legal expenses than the judgment or settlement provides, leaving nothing to affect the necessary repairs to the home.

This enumerated purpose is by far the easiest to explain. Congress has in affect, narrowed the scope of the public's interest in manufactured housing to the initial "cost" of the product, by eliminating the public interest in the safety, durability, and quality of manufactured housing. All of the enumerated purposes, with the exception of enumerated purpose (1), (2), and (4), are tied to this enumerated purpose.

It has been stated more than once that the industry narrows the meaning of affordability to only the initial cost of their product, and some of you may question this assertion. To offer evidence of this industry's interpretation of what encompasses affordability as it relates to their product, the following is offered:

The 11^th Court of Appeals did not buy this argument concerning "cost" and the "public", and in its denial of this argument, the Court stated:

No other sector of society, outside of manufactured homeowners is mentioned in the new purposes with one exception. The exception is in enumerated purpose (8), and this has been worded to narrow the meaning of public to only the publics interest in cheap manufactured housing. This creates a public exigency in cheap manufactured housing, but does not create one for safe manufactured housing.

Whether or not it costs the consumer 200, 300, 400, 500, etc. dollars per month to maintain and operate the home, and how long the home is inhabitable is of little relevance. Operating, maintenance expenses, and durability are all related to the performance of the home and only affect the first purchaser AFTER THE SALE. Historically the manufacturers have disavowed all responsibility for the performance of their product once it leaves the factory.

The discussion of these enumerated purposes will finish by citing from the following two Court of Appeals rulings, followed by short comments after each.

Based on the new Congressional purpose for this Act, it undoubtedly no longer represents consumer safety legislation.

What Justice Carnes (Former President George Bush appointee) is referring to is the manufacturers argument that the consumer should have the right to choose to live less safely in exchange for cheaper housing. Justice Carnes clarified what the manufacturers meant when he stated, "Allowing consumers to knowingly assume the risk of unsafe housing" meaning that what the manufacturers were arguing by legal standards probably surmounted to unsafe housing. The manufacturers did in fact take these arguments to Congress and Congress of course gave them what the courts would not.

Returning to enumerated purpose (1); Congress has directed HUD to promote the quality, durability, safety, and affordability of manufactured housing. If the potential consumer were to be informed that by purchasing a manufactured home, they were assuming the risk of unsafe housing, or they were choosing to live less safely in exchange for cheaper housing (Affordable), this would be contrary to enumerated purpose (1) for this Act.

In conclusion, Congress's new purposes for this Act are to establish a federal program to regulate the construction of manufactured housing in the United States that is the equivalent to regulatory building construction programs in Third World countries.

[Note 1] This is referencing if the Secretary fails to act on consensus committee recommendations, these recommendations become Federal Policy.
[Note 2] Referencing the exemptions to Title 18, USC, Section 203, 205, 207, and 208 being offered by the amendment to the Act.
[Note 3] A member that is supposedly representing user interests or one of the government or non government members of the general interest group could not be an agent of the industry during their participation on the consensus committee.
[Note 4] There is no limitation of the term for serving on the consensus committee, and once appointed, the clock is ticking regardless of whether or not they are carrying out duties related to the committee.
[Note 5] As it relates to service on the consensus committee, it will always be personal and substantial.
[Note 6] The personal participation will be substantial and therefore number 3 has precedence, which prohibits the consumer interests group members, or the other interested non-government members from acting as an agent before a government agency on behalf of the industry on matters related to manufactured housing, even after they have terminated their position on the consensus committee. It is no secret that industries offer lucrative jobs to government employees during their employment with the government, who can affect the outcome of a matter before the government, or that the government has an interest in.