Issue link: https://read.dmtmag.com/i/549054
Augusts in Washington, D.C. tend to be quiet, as Congress, the President and just about everyone else who can heads out-of-town. For the manufactured housing industry, however, this August promises to be different. Instead of the usual summer doldrums, August 2015 may mark a major turning point for the industry and manufactured homebuyers, as the Manufactured Housing Consensus Committee (MHCC), at its August 18-20, 2015 meeting, is scheduled to address the issue of energy regulation and, quite possibly, a proposed rule from the U.S. Depart- ment of Energy (DOE). The most pressing ques- tion in all of this for federal program stakeholders, across-the-board, is whether that review will be substantive, meaningful and effec- tive in upholding the purposes and mandates of federal manufactured housing law, or whether it will be a tightly-choreographed rubber stamp -- engineered by DOE, HUD and an assortment of special interests (outside and within the indus- try) -- that will deliver another body-blow to the industry, leave millions of consumers without ac- cess to the nation's most affordable housing, and smaller industry businesses, in particular, fight- ing even greater odds just to survive. The set-up for this showdown is simple enough. Section 413 of the Energy Independ- ence and Security Act of 2007 (EISA) directs DOE to "establish standards for energy efficiency in manufactured housing … based on the most recent version of the International Energy Con- servation Code" (IECC). Under a last-minute addition to the law, however, advanced by MHARR and other industry groups because not one industry or consumer representative was ever given an opportunity to testify during the legisla- tive process, such standards may be established only after: (1) notice and an opportunity for comment by "manufacturers of manufactured housing and other interested parties;" and (2) DOE "consultation with the Secretary of Hous- ing and Urban Development who may seek fur- ther counsel from the Manufactured Housing Consensus Committee." The purposes of this unusual "consultation" mandate are obvious in some ways and not-so- obvious in others -- as explained below -- but all point to the absolute necessity of a thorough, objective, and independent review by the MHCC based on federal manufactured housing law and, most importantly, the Manufactured Housing Improvement Act of 2000. And, while that type of review appeared likely, last year, recent ac- tions by HUD and the fed- eral program Administrator seem calculated to turn this consultation process into a meaningless rubber stamp. The "obvious" purposes of the EISA consultation mandate all relate to pre- serving the unique affordability of manufactured housing. Most fundamentally, let's consider- HUD is a housing agency, charged with advanc- ing the availability of safe, decent and affordable housing -- including manufactured housing -- for all Americans. DOE, is not. Moreover, under federal manufactured housing law and, particularly the Manufactured Housing Improve- ment Act of 2000,the specific mission ofMore specifically, under federal manufactured housing law and particularly the 2000 reform law, HUD is required to regulate manufactured housing through standards (and enforcement mecha- nisms) that carefully balance protection with cost to the consumer and are, to the maximum ex- tent possible, performance based. DOE has no such institutional responsibility and the IECC is not a performance code that considers cost-im- pact on the consumer. Furthermore, HUD has the distinctive statutory mission of: (1) protect- ing the "quality, durability, safety and afford- ability of manufactured homes; (2) "facilitat[ing] the availability of affordable manufactured homes and … increas[ing] homeownership for all Americans;" and (3) "ensur[ing] that the pub- lic interest in, and need for, affordable manu- factured housing is duly considered in all determinations relating to the federal standards and their enforcement." (Emphasis added). DOE has none of these duties with respect to manufactured housing (or anything else). As for less obvious factors, nowhere does EISA state that DOE manufactured housing energy standards will auto- matically (or necessarily) re- place existing energy standards contained in the HUD Code. Under federal manufactured housing law, HUD exercises comprehen- sive superintendence of the industry, including Subpart F energy conservation standards as specifically directed by Congress in 1992. Oddly, though, EISA section 413 fails to ex- pressly address the inter-relationship between the existing HUD energy efficiency standards (and related enforcement system) and any new DOE- developed standards. Nor does it specify which agency – DOE or HUD – is responsible for: (1) enforcing the new standards; or (2) developing the updates required by section 413. All of this is significant, because EISA section 3, titled "Relationship to Other Law," states: "Except to the extent expressly provided in this Act … nothing in this Act … supersedes [or] limits the authority pro- vided or responsibility conferred by … any provision of law (including a regu- lation)…." (Emphasis added). Last and perhaps most important, an inde- pendent MHCC review of any DOE proposed AUGUST 2015 12 THE JOURNAL Credible and Legitimate Review or Meaningless Rubber Stamp? MHARR VIEWPOINT BY MARK WEISS \ 25