Over the past two years, HUD has engaged in a drive to incrementally undermine the statutory role, authority and independence of the MHCC and transform it into a toothless clone of the National Manufactured Housing Advisory Council that Congress disbanded in the Manufactured Housing Improvement Act of 2000. It is essential that the MHCC go on record to oppose and reject this effort to render it either irrelevant or subservient. Below are just a few examples of the way that the MHCC is being undermined by HUD:
- HUD is seeking to unilaterally strip the MHCC of half of its authority – over regulations and enforcement-related matters. In February 2010, HUD issued a rule, without opportunity for public or MHCC comment, that attempts to read out of the law section 604(b)(6) – which requires MHCC review and input on all changes to program practices and policies affecting the standards, enforcement and monitoring.
- As shown by the agenda for the present meeting, it appears that HUD now is refusing to bring any regulatory or enforcement-related matter to the MHCC. For example, even though HUD and its contractors are engineering an unprecedented expansion of in-plant regulation, and a change in its entire focus, none of this expansion is being brought to the MHCC, even though new elements are still evolving. Thus, an undefined “continuous improvement process” for manufacturer quality control and related auditing was discussed at the September 2010 HUD-COSAA meeting and will undoubtedly be discussed in detail at a HUD “auditors” meeting scheduled for November, but is not even on the agenda for the current MHCC meeting, even though it involves a massive change in HUD’s program practices concerning enforcement.
- HUD is maneuvering to take complete control of the MHCC through a new Charter and Bylaws, imposed without MHCC involvement or consent. HUD has claimed that changes in both documents are required by the Federal Advisory Committees Act (FACA), but changes designed to undermine the MHCC go far beyond anything required by either FACA or the 2000 law that created the MHCC.
- The new purported MHCC Charter attempts to give HUD complete control over the subjects the MHCC can consider by empowering the Designated Federal Officer (DFO) – a HUD program official (career staff) – to “prepare” all meeting agendas. The new purported Bylaws similarly abolish the former Planning and Prioritization Subcommittee. There is no such requirement or authority contained in FACA.
- The original MHCC Charter acknowledged that as a statutory committee, the MHCC has an “indefinite term of duration.” The new purported Charter leaves the door open to an effort by HUD to abolish the MHCC in two years, stating “unless renewed by appropriate action prior to its expiration, the [MHCC] will terminate two years from the date this Charter is filed.”
- The new purported Charter gives the Secretary (or his “designee”) “exclusive authority to create subcommittees.” Nothing in FACA or the 2000 law gives HUD this power, “exclusively” or otherwise.
- The new purported Charter and Bylaws say nothing about public participation in MHCC meetings and do not guarantee such participation, even though the 2000 law specifically requires “a fair opportunity for the expression and consideration of various positions and public participation.”
- The new purported Bylaws require three of the seven members of the “general interest” group to be “public officials.” Nothing in the 2000 law or FACA requires this or authorizes HUD to unilaterally change the law as enacted by Congress.
- The new purported Charter – unlike the original Charter – contains no provisions for the appointment (and duties) of an MHCC chairperson.
- Having been created by Congress through statutory enactment, and using U.S. government funds for its operations, the MHCC and its members have an independent duty to follow the law in all its respects, even if HUD does not.
MHARR is a Washington D.C.-based national trade association representing the views and interests of producers of federally-regulated manufactured housing.