Gentlemen and Ladies:

The following is in response to HUD’s request for advance public comments in regards to notice of proposed rulemaking, Docket No: FR-4812-A-01, 24 / RNI 2505-AH97. We find it deleterious to put forth questions of this nature. According to the manufacturers and their HUD agents, the MHCSS Act of 1974 left the installation of manufactured homes to the States. To legitimize this notion, the MHI Act of 2000 was enacted, which presumably, was needed to provide HUD with the authority to regulate the installation of manufactured homes. However, the MHI Act of 2000 makes it unquestionably clear that the Secretary does not have the authority in any State, in regards to their installation program, beyond assuring before his approval, that such State provides for the three criteria "prescribed by Congress" (emphasis added).

Congress neither expresses, nor implies, that the Secretary has any discretionary authority to determine, or mandate, the content or requirements, for a State’s licensing, training, or manufactured home installation inspection program. Congress expressly states in §5404(d), that if a State meets the three criteria prescribed by Congress under §5404, once such approval is given by the Secretary, such State is no longer subject to the preemptive reach of the MHI Act of 2000, previously, the Manufactured Home Construction and Safety Standards (MHCSS) Act of 1974. With this, any regulation established and implemented by the Secretary for the purpose of regulating a State’s right to administer, and enforce their installation program, would have no force and effect upon such a State. Simply stated, unlike the MHCSS, where the Secretary has the authority to enforce the MHCSS in a State, which has been approved by the Secretary to enforce the MHCSS [42 USC §5422(e)], no such discretionary authority was given by Congress to the Secretary, to do likewise in regards to enforcing the MODEL installation standards.

It is evident from the content of these questions that the Secretary is seeking as a precursor, public support to lend credibility to his taking, just as he did under the MHCSS Act of 1974, of rights guaranteed to the State by the MHI Act of 2000. Proof that history does indeed repeat itself. If the public or the Secretary is not satisfied with the language in the MHI Act of 2000 (Public Law 93-383), the Constitution prescribes the only constitutional means by which this public law can be amended, modified, or revoked, in whole, or any part thereof. For the Secretary to suggest that the President of the U.S. has this power, and has delegated it to him, is very alarming to say the least. Any interpretation of Public Law 93-383, within the scope of permissible interpretation, does not arrive at the place, where the Secretary implies in his questions, he has the authority to go.

Question 1—answer: The Secretary does not recognize or acknowledge under its current enforcement and procedural regulations, that §5421 even exists, much less, that a purchaser has the right at the completion of the sale, to them, to a new manufactured home that complies with all applicable Manufactured Home Construction and Safety Standards (MHCSS) (primary right) [42 USC §5409(a)(1) & §5422]. The Secretary does not recognize or acknowledge under its current enforcement and procedural regulations, that a purchaser has the right to timely and equitable relief (remedial right) under the MHCSS Act, "for a manufacturer’s violation of a purchaser’s primary right under this chapter" (emphasis added). In fact, just the opposite, the Secretary has taken extraordinary measures to assure that the purchaser is unaware they have any rights under the MHCSS Act, when they are seeking relief for a manufacturer’s violation of their primary right, by purposely diluting their right to timely and equitable relief. Congress expressly provides under §5404 of the Act, in summary, the Secretary with the authority to:

1. Establish MODEL installation standards;
2. Determine if a State’s installation standards will provide equal or greater protection than the MODEL installation standards, to the residents of manufactured homes;
3. Determine if State law provides for the licensing, training, and inspection of manufactured homes installations, and;
4. To establish and implement an installation program in any such State that does not have an installation program, which meets the requirements cited above, in (1), (2), and (3), at the end of the 5-year period specified by Congress.

Beyond this, §5404 has no other purpose. Congress simply does not express, imply, or otherwise acknowledge, that a purchaser has any right(s) under §5404. Perhaps, to alleviate this confusion, the Secretary might publish in the Federal Register, what "rights" he believes a purchaser has under §5404, so that in the future, this confusion can be avoided. In regards to these supposed rights, what is of even greater importance is; Congress only provides the Secretary with the authority to penalize himself for failing to comply with the requirements "for" the installation program required by section 605 in any State that "has not adopted and implemented a State installation program" (emphasis added)] [42 USC §5409(a)(7)]. Congress expressly states that the only person required under §5404 to meet the requirements for an installation program in any State that, "has not adopted and implemented a State installation program", is the Secretary. Given that it is highly unlikely that the Secretary will fine or imprison himself in accordance with §5410, for his violation of §5409, §5404 is wholly unenforceable by any legal reasoning. Without the statutory authority to penalize any person who violates these supposed rights of the purchaser, under §5404, these rights have no force and effect, or simply stated, they are mute. The clear legislative language in §5404 leads one to question, where did the Secretary come up with the contrived notion that a purchaser has rights under §5404.

Given the Secretary’s history as the administrator of this chapter, one might conclude that a concerted effort was being made to direct a purchaser’s rights, specifically, their primary right, to a section of the Act, which by any legal reasoning or logic, is wholly unenforceable against any person. An approach that what would certainly be welcomed with open arms by the regulated industry, since this would assure they continue to be the primary, and perhaps even sole, beneficiaries of this Act of Congress.

Question 2—answer: Congress only authorizes (emphasis added) the Secretary to establish and collect "from manufactured home manufacturers" (emphasis added) a reasonable fee, as may be necessary to offset the expenses incurred by the Secretary in connection with carrying out the responsibilities of the Secretary under this title, including—"the administration and enforcement of the installation standards authorized by section 605" (emphasis added) "in States in which the Secretary is required to implement an installation program" (emphasis added) after the expiration of the 5-year period set forth in section 605(c)(2)(B) [42 USC §5419]. This appears to be another end run by the Secretary, at the States rights under the MHI Act of 2000. This is the oldest form known to man, for oppressing rights. Those who control the money control the power, and subsequently, those who control the power dictate the policy.

Question 3—answer: An installation program meets the requirements … if it is a program regulating the installation of manufactured homes that "includes" (emphasis added)—

1. installation standards that, in the determination of the Secretary, provide protection to the residents of manufactured homes [that equals or exceeds the protection provided to those residents by the model standards or the designs and instructions provided by the manufacturer under subsection (a).
2. the training and licensing of manufactured home installers; and
3. inspection of the installation of manufactured homes.

Congress states, "includes" which clearly establishes the three criteria set forth by Congress, as the minimum criteria a State must provide for, before their installation program can be approved by the Secretary. Congress does not express, nor do they imply in this part, that the Secretary has any discretionary authority to establish additional criteria under the banner of subparagraphs (B) & (C) of this part. Congress clarifies this point by expressly limiting the preemptive reach of the Act, by reserving to the States, "the right to enforce compliance with such standards" (emphasis added) as they feel best serves the interest of the citizens of such State. Referencing the Secretary’s authority to collect fees under this Title, for the administration and enforcement of an installation program, Congress states; in any State that does not have an approved program". Given the preemptive reach of the Act, and the fact that Congress does not provide the Secretary with the authority to collect fees in any State, which has an approved installation program, one can reasonably conclude that question 4 can only be answered within the State’s purview. As for those States without an approved installation program, without at least an outline of the standards and the installation program, one cannot provide an educated or informed answer to this question, i.e., how big is it going to be, how many employees, how many homes are to be inspected, etc, etc.

Question 4—answer: Referencing back to §5419(a)(1)(G) of the MHI Act of 2000, Congress only authorizes the Secretary to collect fees from the manufacturers, to cover his expenses in regards to §5404, in those State that do not have an installation program that meets the minimum requirements, as prescribed by Congress, under §5404. Combined with the preemptive reach of the Act under the MHI Act of 2000, the Secretary simply does not have the statutory authority to collect fees in those states that have an installation program that has been approved by him.

Question 5—answer: This has already been answered; the Secretary has no statutory or preemptive authority to establish any mandates in those States with an approved installation program. If the State provides for this under State law, then this is their choice, and so be it.

Question 6—answer: Does the Secretary intend to certify or license installers? There is a profound legal difference between programs, which will certify installers, versus licensing installers, the first being less than desirable. Certification implies that it would NOT be illegal for a person without such a certificate, to perform manufactured home installations. The notion of certifying installers simply falls short of meeting the statutory requirement set forth by Congress that installers be licensed, thereby, implying that it would be illegal for any person, for hire, to install the manufacturer’s manufactured homes without such a license. How the Secretary addresses his trainers, and those who will install the manufacturer’s manufactured homes in those States without an approved installation program, is the Secretary’s problem.

Question 7—answer: Given the overwhelming evidence that installers today, cannot complete the manufacturer’s manufactured homes, consistent with manufacturer’s design and instruction for the onsite completion of their product, it is doubtful if training by electronic means, will provide the means for addressing this profound deficiency. It should not be the government’s place, either Federally or within a State, to shoulder the responsibility for doing what is in every legitimate manufacturing industry, the responsibility of the manufacturer—training those employee or agents, whether independent of not, for the type of work they will be performing in the manufacture, sale, or servicing of the products manufactured for sale, by the manufacturer. This is clearly and unquestionably, an effort by closed circle of government officers or employees, to relieve the manufacturers of their liability for the performance of the products they manufacturer and sale, to the public. In fact, given the government’s, both Federal and State, history in this program, it is doubtful if any of this, meaning all of it, will make any difference in providing meaningful relief to manufactured home purchasers. As for licensing by electronic means, given that such would be carried out in a controlled environment to assure, the person taking the licensing test is the same person who is applying for the license, why not. Otherwise, forget it. But then again, this is only relevant in those States, which have not established and implemented an installation program that meets the requirements prescribed by Congress in §5404.

Question 8—answer: This question is confusing. It is unclear whether the Secretary is addressing used manufactured homes or new manufactured homes, as they are defined by 42 USC §5409(b)(1). The Act clearly does not have force and effect on any manufactured home offered for sale, or sold, after the first purchase of it in good faith for purposes other than resale. With this, we are forced to concede that the Secretary is asking whether he should address defective new manufactured homes that are currently in the hands of first purchasers, to determine if such were installed in accordance with the new installation requirements. This raises some serious questions. Congress states; the amendments made by this title shall take effect on the date of enactment of this Act, except that the amendments shall have no effect on any order or interpretative bulletin that is issued under the National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5401 et seq.) and published as a proposed rule pursuant to section 553 of title 5, United States Code, on or before that date of enactment. The language in the effective date clause of the MHI Act of 2000 is clear and concise. Clearly, the Secretary has no statutory authority to apply retroactively, any new requirements promulgated pursuant to the MHI Act of 2000, to any existing manufactured homes, regardless of whether they were first purchased by a purchaser [42 USC §5402(10)] on or after the date of enactment, of the MHI Act of 2000. Simply stated, on the day a requirement is established and implemented pursuant to the MHI Act of 2000, from that date forth, the requirement has force and effect. It would be highly unlikely that Secretary does not understand the clear language of this clause. With this, is the Secretary asserting that he had the authority to address defects or failures to comply with the MHCSS, in manufactured homes, which were related to the transportation and onsite completion of the manufacturer’s manufactured home, under the MHCSS Act of 1974?

Question 9—answer: Congress states, that Federal preemption under this subsection shall be broadly and liberally construed to ensure that disparate State or local requirements or standards do not affect the uniformity and comprehensiveness "of the standards promulgated under this section" (emphasis added). The standards Congress is addressing in this part are those standards promulgated under §5403 of the Act, and not those under §5404. The boundary between Federal and State jurisdiction is clearly defined by Congress; if a standard is promulgated under §5403, the Secretary is King, if the standard is promulgated under §5404, and the State has met all three conditions set forth in §5404, the State is King. This is simply not confusing, why would the States have difficulty understanding the scope of their jurisdiction? While Congress does state that the States "installation standards" shall be consistent with the purposes of this Title, it seems highly unlikely that the Secretary will find a court, that will uphold preemption in regards to installation standards, based on the notion that public safety can quite literally be abandoned, if it interferes with the public’s right to a source of "cheap manufactured homes" (emphasis added) to purchase, while excluding all other types of housing from this governmental objective.

Question 10—answer: The AC process is in substantial conflict with §5409(a)(1) in so much that it implies that the Secretary has the authority to authorize the manufacturer to waiver the purchaser’s right, to a manufactured home that complies with all applicable MHCSS, at the completion of the sale, to them, of the manufacturer’s manufactured home. §5421 establishes manufactured home purchasers as a protected class of persons, and therefore, no Federal or State jurisdiction, other than the U.S. Congress, in accordance with the U.S. Constitution, has the authority to amend, modify, revoke, or otherwise impede, the rights of this protected class, under the MHCSS Act. Simply put, the AC process is paramount to a waiver by the federal jurisdiction, of an individual’s right to due process, which would explain why Congress did not provide within the legislative language of this Act, to the Secretary, the statutory authority to establish such a process. In fact, Congress specifically tells the Secretary within the Act’s language, that he himself is prohibited from violating 42 USC §5409(a)(1). This raises the question, given Congress specifically denies to the Secretary, the authority to violate §5409(a)(1), why then does he think he has the authority to authorize the violation of §5409(a)(1), by private persons, specifically, the manufacturers of this product. Section 5421, as well, makes it unmistakably clear that not even the purchaser has the right to enter into any agreement with any person, that waives their rights under Title 42, Chapter 70.

Question 11—answer: Given that only a Structural Engineer or Architect would have the necessary education or background to evaluate whether such State standards meet or exceed the MODEL installation standards, the procedures for this are best left to those persons. By allowing the public to define the procedural scope of such evaluations, without a thorough background in what would be involved, we would run the risk in too narrowly defining the scope, thereby, impeding those who will be performing such evaluations, in their ability to properly evaluate such standards.

Question 14—answer: The Act sets no requirements for a licensing program beyond a program that provides for the licensing of installers.

Question 15—answer: While the Secretary is certainly free to try this, it is doubtful whether those States, which set such limits, would survive if challenged in a federal court of law, if such age limits are inconsistent with Federal labor and discrimination laws. The Secretary should seek the advice of the U.S. Attorney General, if his own General Counsel cannot answer this question, and not from the public. The Secretary should also seek the advice of the States on the issue of the amount of experience needed.

Question 16—answer: Most states consider the mere employment by a licensee, of unlicensed personnel, to in itself, be direct supervision. While there is always a possibility that the license holder will avail themselves on the job site, it is more of a rare event that common occurrence.

Question 17—answer: While some State Administrative Agencies may have the legal authority under State law, to allow unlicensed electrical, plumbing, and HVAC contractors to perform construction on new homes, prior to the completion of the sale of such new home to a purchaser, the MHCSS Act, nor does any other federal law, provide HUD with such preemptive authority. Such an act by the Secretary would clearly be an infringement on rights guaranteed, and affirmed by the Federal courts, to the States by the Constitution of the U.S. It is extremely doubtful if the State Administrative agencies, which are purporting to have the authority to allow such activity, actually have such authority under State law. This is another question where the Secretary would be better informed if the answer came from the U.S. Attorney General, if his own General Counsel is unable to provide the answer. As for modifying the design of a manufactured home through the alteration or modification of its construction, prior to the completion of the sale of such manufactured home to a first purchaser, only the manufacturer can authorize such action, and then, only after submitting such modification or alteration to the DAPIA for their approval.

Question 20—answer: The Secretary has no statutory authority under the auspices of the MHCSS Act, to impose any such financial hardship upon any U.S. Citizen. If he believes that it would be a good idea for license holders to carry insurance, then he needs to study State laws in this regard, and seek legislation from Congress, which will provide him with the authority to impose such financial hardship upon any citizen seeking such a license.

Question 21—answer: See answer for question 20.

Question 24: The Secretary shouldn’t be considering the creation of different classes of installers, with each different class being subject to different conditions or rules. If you install a manufactured home, you are an installer—period. As per 5402(5), any person engaged in the manufacture or assembly of manufactured homes, is a manufacturer. Accordingly, any person engaged in any activity, related to the durability, quality, and safety of a manufactured home is by operation of law, a manufacturer, and is therefore, an agent of the principal manufacturer.

Question 25—answer: See answer for question 1

Question 26—answer: We were wondering where the hidden agenda was in these questions, which are fundamentally demeaning to the Secretary’s competence as the superintendent of the manufactured housing industry; and here it is. This would only create even more layers of confusion, as to who is responsible for what. Well, we certainly can’t hold the license holder responsible for HUD’s or the State’s failure to adequately train and supervise the license holder’s employee agent(s) or subcontractor(s). This is the responsibility of the license holder and the government should not be seeking to shoulder or divert the license holder’s liability for training or assuring, that those they employ either directly, or under contract, have the necessary experience or training, to perform the work the license holder has hired them to perform. The devastation caused to far too many manufactured home purchasers because of the promulgation of this purposely layered system of confusion, to the degree it exists today, is more than adequate to show that this is a terrible idea.  

Question 27 through 32—answer: No technical baseline provided with which to form a rational basis for answering these questions.

  Question 33—answer: Yes, but not by HUD or the State, but by the manufacturer to assure their product is not sold in violation of the Act, specifically, 42 USC §5409(a)(1), thereby, assuring they have not violated the first purchaser’s right under Chapter 70, to a new manufactured home that complies with all applicable MHCSS at the completion of the sale, to the first purchaser.

Question 34—answer: The manufacturer’s installation agent, whether such person be directly employed or contracted by the manufacturer, or they are such a person by operation of law, is performing work that is defined as manufactured home construction. The U.S. Constitution does not provide the head of an agency with the power to amend, modify, or revoke, in whole, or any part thereof, any PUBLIC law, which includes the definitions contained therein, enacted by the peoples duly elected Congressional representatives.

Question 35—answer: answered in question 1

Question 36—answer: HUD employees or person directly under contract with HUD, but only in those States without an approved installation program.

Question 40—answer: Dual labeling; as of the passage of the MHI Act of 2000, preemption is probably already dead as it relates to the MHCSS; but if the Secretary goes here, he might as well pull the trigger and call the undertaker.

Question 41—answer: Yes

Question 42—answer: HUD has no jurisdiction or statutory authority to prohibit a purchaser from doing this. The sale of the manufacturer’s manufactured home would be by any legal reasoning, completed, if such contract for the sale of such manufactured home did not include the delivery, or installation of the manufactured home. With this, it is doubtful whether the lending institutions would line up to loan money to people, who were buying parts for what might comprise a home when assembled at some unknown location.