As a follow-up to MHARR’s October 2, 2012 Memorandum regarding the FOIA phase of its ongoing legal initiative targeted at HUD’s unwarranted and improper expansion of in-plant regulation, HUD provided its initial response on November 26, 2012, stating, without specific factual support, that the estimated fee to process MHARR’s FOIA request would be “over $25,000” — with payment expected before the request would be processed — and asked if MHARR still wished to proceed.  

Based on our experience with the cost of prior MHARR FOIA requests and suspecting that such an exorbitant estimate could well be a ploy by HUD to either dissuade MHARR from proceeding at all, or force it to needlessly reduce the scope of its request, we instructed our Mayer-Brown attorneys to immediately seek a formal fee estimate letter, with specific factual detail and backup from HUD in accordance with the FOIA statute and implementing regulations.  In addition to “smoking out” a possible HUD ploy — by requesting a formal HUD estimate letter – we also sought to reinforce and reiterate the fact that our FOIA request and related investigation are a serious matter and that we would not act to alter our request in any way based on an unsubstantiated, informal “guestimate.”

And now, as we fully expected, HUD has responded with a drastically-reduced formal fee estimate of $2,519.61 — ninety percent less than its original stated figure — to process MHARR’s complete, unaltered FOIA request, including an estimated 1000 pages of responsive material.

Based on this formal, factually-detailed HUD estimate, we have, of course, decided to proceed with the Association’s full original FOIA request, with the objective of securing material that could not only be relevant to decisions concerning potential follow-up action by the MHARR Board of Directors, but that could also be of use to individual MHARR member-manufacturers in addressing expanded in-plant regulation and its seemingly ever-changing subjective demands that needlessly disrupt manufacturer operations and unnecessarily increase producer and consumer costs with few or no corresponding benefits.

As an aside, though, this episode exposes not only the degradation of the federal program (now downgraded to being a part of the Department’s “risk management” office), but HUD’s increasing disrespect for the industry as a non-factor in the nation’s housing polices.  This is one of the principal reasons why Congress decided to include a non-career program administrator in the 2000 reform law, whose responsibilities include, among other things, elevating the federal manufactured housing program to the policy mainstream at HUD and putting an end to abuses of the program’s regulatory authority over the industry.  With no appointed non-career administrator to oversee the federal program, however, the program is now reverting back to the non-transparent and unaccountable practices of the pre-2000 law era.  That is why MHARR continues to seek industry partners (in accordance with the Board’s decision at its November 9, 2012 meeting) to put such a non-career program administrator in place – among other previously-agreed priorities — once the second Obama Administration and 113^th Congress take office in January 2013.  In this regard, and in response to questions from some of you regarding our initiative with others in the industry, we are still waiting for a response – which is now becoming time-sensitive – and will advise you accordingly.

We shall continue to fully pursue the FOIA phase of the Association’s legal initiative, and will keep you apprised as this process advances.