According to Regulations.gov site: “Summary: The U.S. Department of Energy (DOE) is proposing to establish enforcement procedures for its energy conservation standards for manufactured housing. DOE recently amended the compliance date for these standards in a final rule to delay compliance. DOE delayed the compliance date to allow DOE more time for this rulemaking to establish enforcement procedures that provide clarity for manufacturers and other stakeholders regarding DOE’s expectations of manufacturers and DOE’s plans for enforcing the standards.” That same Regulations.gov site says that comments letters in response to the Department of Energy (DOE) are due by February 26, 2024.  As MHProNews has previously reported and has since periodically reminded readers, attorneys for the Manufactured Housing Institute (MHI) as part of their legal arguments asserted that the plan for the DOE rule could cause “irreparable harm” to the manufactured home industry’s producers.

Under the subheading II Discussion of Proposed Rule are the following.

Prohibited Acts and Civil Penalties

Proposed § 460.304 lists prohibited acts that will be subject to civil enforcement action under part 460. These prohibited acts include the sale, importation, or distribution into commerce in the United States of a manufactured home that is not in compliance with any energy conservation standard or requirement in part 460. (42 U.S.C. 17071) They also include any failure of a manufacturer to maintain, provide to DOE, or permit DOE access to any information, records, or documents required under part 460.”

Investigation Procedures

Proposed § 460.306 explains how DOE will conduct investigations to determine whether manufacturers are in compliance with the energy conservation standards and other requirements of part 460. DOE may initiate an investigation on its own or upon receipt of information alleging potential noncompliance. DOE will not require manufacturers to certify to the Department that their designs or manufactured homes comply with part 460. Rather, DOE may request that a manufacturer provide one or more of the records listed in this section so that DOE can determine whether the manufacturer is in compliance with the requirements of part 460. If DOE makes such a request of a manufacturer during an administrative action, investigation, or audit conducted by DOE pursuant to part 460, the manufacturer will be required to provide the requested records to DOE. As discussed previously, if a manufacturer fails or refuses to do so, the manufacturer will be subject to civil penalties.”

According to the Regulations.gov website on 1.30.2024 at 2:10 PM there is only one comments letter posted thus far. It is the one shown below from the Manufactured Housing Association for Regulatory Reform (MHARR).

Part I – Press Release of MHARR’s DOE Comments Letter

JANUARY 24, 2024

TO: HUD CODE INDUSTRY MANUFACTURERS, RETAILERS, COMMUNITIES AND STATE ASSOCIATIONS

FROM:          MARK WEISS

RE:                 MHARR COMMENTS CALL FOR WITHDRAWAL OF DESTRUCTIVE DOE MANUFACTURED HOUSING “ENERGY” ENFORCEMENT RULE

             In comments filed on January 24, 2024 (see, copy attached), the Manufactured Housing Association for Regulatory Reform (MHARR) has called for the withdrawal of a proposed U.S. Department of Energy (DOE) enforcement rule for manufactured housing “energy conservation” standards published on December 26, 2023. At the same time, MHARR’s comments reiterate – and emphasize once again – the Association’s strong and continuing opposition to the substance of DOE’s manufactured housing energy standards, published on May 31, 2022.

            The so-called “final” DOE manufactured housing energy standards – as MHARR has repeatedly demonstrated – would have devastating cost impacts that would exclude millions of lower and moderate-income Americans from the manufactured housing market and from homeownership altogether (with few or no energy-saving benefits), insofar as manufactured homes are the nation’s most affordable non-subsidized homes.

            DOE, however, in a conscious and intentional effort to bypass and subvert legitimate and accurate cost-benefit analysis of the proposed manufactured housing standards – as specifically required by federal law – (while rushing to meet court deadlines that it had agreed to) failed to propose or promulgate testing, enforcement and regulatory compliance criteria, and simultaneously failed to consider the cost and cost burden of those criteria in its supposed cost-benefit assessment. As a result, DOE was forced to delay enforcement of its May 31, 2022 standards pending the development of – and rulemaking regarding – a proposed enforcement mechanism.

            Now that a proposed enforcement system has been made public by DOE, however, it is evident – as demonstrated by MHARR’s attached comments – that:

(1)   the proposed enforcement criteria will significantly increase and compound the cost of the DOE “final” standards;

(2)   the proposed enforcement criteria will exacerbate and steepen the out-of-pocket losses sustained by manufactured housing consumers as a result of the DOE standards; and

(3)   will needlessly and baselessly exclude even greater numbers of potential homebuyers from the HUD Code manufactured housing market and from the housing market as a whole.

In part this stems from the fact that DOE never troubled itself to fully understand either HUD Code manufactured housing, the HUD Code market, or the very unique federal manufactured housing program.

            Worse yet, for HUD Code manufacturers, the proposed DOE system would replicate – while expanding and extending — the worst elements of HUD’s already needlessly costly and burdensome Subpart I mandates, where manufacturers would bear the burden of proving compliance with few or no due process protections. The cost burdens associated with this system, as demonstrated by MHARR’s attached comments, would have disproportionate and discriminatory cost impacts, which would be passed-on to moderate and lower-income consumers.

            Sadly, these disproportionate, discriminatory and destructive standards – which will result in no benefits for consumers whatsoever, while causing significant harm –should never have come about. In substantial part, they exist today because while MHARR continuously, consistently and vociferously opposed them from the outset of this matter, part of the industry set this entire process in motion by foolishly attempting to cooperate with DOE at a very early stage. Now, though, the industry and its consumers will be stuck with these destructive standards, unless and until all industry members take action – by filing comments – to stop the proposed enforcement rules (as well as the underlying standards themselves).

            Accordingly, MHARR urges all industry members and affected consumers to file opposing comments prior to the February 26, 2024 filing deadline. To facilitate such filings, MHARR’s attached thorough and comprehensive comments have been filed early in order to allow them to be referenced, cited or used by industry members.

Thank you.

cc: Other Interested HUD Code Manufactured Housing Industry Individuals and Organizations

Manufactured Housing Association for Regulatory Reform (MHARR)
1331 Pennsylvania Ave N.W., Suite 512
Washington D.C. 20004
Phone: 202/783-4087
Fax: 202/783-4075
Email: MHARRDG@AOL.COM
Website: www.manufacturedhousingassociation.org

Part II – Text of MHARR Letter to Secretary Jennifer Granholm

January 24, 2024

VIA FEDERAL EXPRESS AND ELECTRONIC SUBMISSION

Hon. Jennifer M. Granholm
Secretary
U.S. Department of Energy
1000 Independence Avenue, S.W.
Washington, D.C, 20585

Re: Energy Conservation Program: Energy Conservation Standards for

Manufactured Housing: Enforcement (EERE-2009-BT-BC-0021)

Dear Secretary Granholm:

The following comments are submitted on behalf of the Manufactured Housing Association for Regulatory Reform (MHARR). MHARR is a Washington, D.C.-based national trade organization representing the views and interests of producers of manufactured housing regulated by the U.S. Department of Housing and Urban Development (HUD) pursuant to the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended by the Manufactured Housing Improvement Act of 2000 (2000 Reform Law) (42 U.S.C. 5401, et seq.) and subject to potential[1] energy-related regulation by the U.S. Department of Energy (DOE) pursuant to section 413 of the Energy Independence and Security Act of 2007 (EISA) (42 U.S.C. 17071). MHARR was founded in 1985. Its members include independent producers of manufactured housing from all regions of the United States.[2]

On December 26, 2023 – some eighteen months after the promulgation of supposedly ‘final” energy conservation standards for HUD-regulated manufactured homes — DOE published a Notice of Proposed Rulemaking (NPR) to establish a regulatory enforcement and compliance framework for those standards.[3] For the reasons stated below – and as previously set forth in multiple written comments submitted by MHARR in this rulemaking and related administrative proceedings[4]from the outset – MHARR strenuously opposes both DOE’s current proposed enforcement and regulatory compliance criteria for its pending May 31, 2022 manufactured housing energy standards and the underlying standards themselves. Those regulations and standards – conceived and developed without full compliance with all applicable provisions of their relevant enabling legislation – would, if implemented, needlessly and prohibitively increase the acquisition cost of manufactured housing, excluding millions of Americans from all of the socio-economic benefits of homeownership, while providing no (or de minimis) energy savings – all in violation of applicable law. Accordingly, MHARR again calls on DOE to withdraw all aspects of its May 31, 2022 “final standards” and current proposed enforcement procedures, and instead initiate a cooperative manufactured housing energy standards process with the U.S. Department of Housing and Urban Development (HUD) – through the statutory Manufactured Housing Consensus Committee (MHCC) — in full and complete compliance with all relevant statutory mandates.

1. INTRODUCTION

The manufactured housing energy standards rulemaking, since it was first initiated by DOE, has involved little more than a needless, deceitful and callous attack on the nation’s lowest-income homebuyers, at a time (now) when both the availability of affordable homes and homeownership itself stand near record lows. From the outset, this entire proceeding has been rife with deception, fraud and bad faith on the part of DOE as it has sought to impose the “climate change” agenda of its extremist special interest allies on the backs of hard-working lower and moderate-income Americans who are least able to afford and subsidize the activists’ pet ideological fantasies.

The squalid history and background of this scandalous rulemaking is set forth in detail in MHARR’s August 8, 2016 comments and subsequent filings with both DOE and the statutory Manufactured Housing Consensus Committee. These comments document efforts by DOE, “climate change” special interest groups and even some within the industry to foist discriminatory, ultra-high cost DOE energy standards on lower and moderate-income manufactured housing consumers, even though energy operating costs for manufactured homes, according to U.S. government data are —and have been – lower than those for site-built single-family homes.[5] While MHARR incorporates those prior comments herein by reference – and the information and observations contained therein continue to be highly relevant to the current proceeding – MHARR will not expressly re-state them here. Nevertheless, the deception, fraud and bad faith that have characterized nearly every phase of this proceeding since its inception, fatally impact, infect and invalidate all of its various aspects, including the development of enforcement regulations as addressed in this proceeding.

Accordingly, on August 26, 2021, DOE published a Supplemental Notice of Proposed Rulemaking (SNPR) in the Federal Register in a third effort to establish “Energy Conservation Standards for Manufactured Housing” pursuant to EISA section 413.[6] While that publication purported to include a “cost-benefit” analysis of the proposed standards as affirmatively required by EISA itself[2] and other applicable federal law[8] — that assessment, by DOE’s own admission,[9] did not estimate or even attempt to consider the cost-benefit impact(s) of ongoing regulatory compliance costs related to the proposed standards that would inevitably be passed to consumers under the proposed standards. In relevant part, DOE stated: “DOE is not proposing any testing, compliance or enforcement provisions at this time. DOE has also not included any potential associated costs of testing, compliance or enforcement.” (Emphasis added). Thus, the alleged “benefits” of the proposed energy standards for manufactured housing consumers were not – at the time of the purported adoption of the “final” DOE standards[10] — netted-out against the full, likely and predictable cost of the standards and their implementation, thereby rendering the entire regulatory scheme and cost-benefit “analysis” “arbitrary, capricious and abuse of discretion or  otherwise not in accordance with law” pursuant to the Administrative Procedure Act (APA).[11]

In written comments filed on October 25, 2021 opposing DOE’s proposed standards, MHARR emphasized this fatal flaw, among many others, stating: “DOE’s August 26, 2021 SNPR asserts that proposed manufactured housing energy conservation standards will result in net “life-cycle” operating cost savings to manufactured housing purchasers that would offset and exceed projected purchase price increases attributable to the proposed standards. The findings of DOE’s cost analysis are necessarily flawed, skewed and materially inaccurate, however, in that they do not reflect, consider or account for key cost components or information. As a result, the claimed benefits of the proposed rule are deceitfully netted against incomplete and/or inaccurate cost data, thereby yielding alleged “payback” amounts that are distorted and biased in favor of the proposed rule.” Most significantly, the DOE cost-benefit analysis fails to include or consider significant additional costs that will be incurred by manufacturers – and inevitably passed to consumers in the purchase price of a new manufactured home – for (1) testing, certification, inspections and other related activities to ensure compliance with any new DOE standards; (2) enforcement compliance and related activity; and (3) ongoing regulatory compliance, all of which are unique to federally-regulated manufactured housing and the manufactured housing industry. Although such expenses are recognized as an integral component of the ultimate consumer-level cost of any mandatory rule, they are totally excluded from DOE’s cost benefit and life-cycle cost (LLC) analyses in this rulemaking.”[12]

Despite these (and other) fatal defects, DOE purported to publish “final” manufactured housing energy conservation standards on May 31, 2022 – with a compliance date of May 31, 2023 — without developing, establishing, or considering the consumer-level cost impact of testing, enforcement and regulatory compliance. DOE’s purported “final” rule, therefore, failed to include an essential element of any legislative “rule,” i.e., a cost-benefit analysis incorporating all of the cost elements of the impending regulatory regime. As such, any purported “cost-benefit” analysis performed by DOE in connection with that “final” rule is necessarily incomplete and insufficient. As a result, the so-called “final” rule itself is – and continues to be — incomplete, insufficient, arbitrary and not otherwise in accordance with law.

Consistent with MHARR’s longstanding position that the absence of a valid cost-benefit analysis (or, indeed, any cost-benefit analysis) incorporating testing, regulatory compliance and enforcement costs necessarily renders the May 31, 2022 DOE standards fatally defective, litigation was filed against DOE in the U.S. District Court for the Western District of Texas on February 15, 2023, alleging, among other things, that the DOE “final” standards were in violation of EISA section 413, as well as the APA. Faced with judicial review in this manner, DOE immediately backtracked, claiming that it had planned all along to defer enforcement of the May 31, 2022 standards (notwithstanding the purported May 31, 2023 “effective” date). It therefore published a Notice of Proposed Rulemaking on March 24, 2023 to extend the “compliance” dates for the so-called “final” manufactured housing energy, standards, so that those supposedly already “final” standards could in fact be “finalized” with regulatory compliance regulations that should – legally—have been part of the May 31, 2022 “final” standards – but were not.[13]As a result compliance with the so-called “final” standards and any enforcement regulations ultimately adopted through this proceeding has been deferred to a date sixty days after the adoption of DOE’s enforcement regulations for the manufactured housing energy conservation standards for so-called “Tier1” homes and to July 1, 2025 for so-called “Tier 2” homes.

Having delayed enforcement of the May 31, 2022 “final” energy standards in this manner, DOE has now issued a separate Notice of Proposed Rulemaking (NPR) to promulgate the enforcement and regulatory compliance criteria that it initially and intentionally failed to include (together with applicable costs) in its so-called “final energy standards rule.[14] For all of the reasons stated below, DOE’s proposed enforcement and regulatory compliance regulations are needlessly costly, would impose significant new and additional cost burdens on both manufactured housing producers (especially including smaller, independent producers), would needlessly and exponentially increase the acquisition cost of currently affordable manufactured homes, would exclude millions of lower and moderate-income Americans from the manufactured housing market – and from homeownership generally – and would devastate an already struggling manufactured housing industry. Indeed, HUD statistics show that manufactured housing production has been in steep decline since DOE’s May 31, 2022 “final rule” was announced. As a result, 2023 production will be well below the 100,000 home benchmark and some 22% lower than 2022 production – all at a time when the nation is in dire need of affordable housing. Consequently, the proposed enforcement regulations and the DOE standards themselves should be withdrawn and subject to a de novo rulemaking process in full compliance with all applicable law and statutory criteria.

II ARGUMENT

A. THE PROPOSED REGULATIONS WILL SIGNIFICANTLY

INCREASE CONSUMER AND PRODUCER COST BURDENS

DOE incredulously maintains, in its December 26, 2023 NPR, that the cost impact of enforcement and regulatory compliance with its proposed enforcement regulations will either be minimal or non-existent.

The NPR, accordingly, states that “DOE tentatively concludes, consistent with the expectations it stated in the May 2022 Final Rule … that the costs of complying with DOE’s enforcement mechanisms will be minimal.”[15](Emphasis added). Shortly thereafter, though, DOE maintains that the “proposed rule would not impose any new, additional costs beyond the costs already required by separate requirements.”[16](Emphasis added). These claims – which are inconsistent among themselves (i.e., “none” versus “minimal”) – are absurd and without any demonstrable basis in evidence or fact.

First, DOE offers no evidence to show that the cost of collecting, maintaining, organizing, retaining, archiving and, where necessary, researching and retrieving additional records relating to the DOE energy standards – over, above and different – from those currently maintained for and pursuant to the HUD enforcement system for the Federal Manufactured Housing Construction and Safety Standards (FMHCSS),[17] will be zero or, alternatively, “minimal.” Rather than attempt to estimate and reconcile the costs of maintaining such additional records and responding to document requests and inquiries by DOE and related investigatory activities, (i.e., rather than developing and legitimately evaluating real data and evidence concerning such costs) the NPR simply sets forth a summary conclusion and assertion with no supporting facts or analysis. DOE’s bald assertion, however, is totally inconsistent with reality.

While DOE maintains that manufacturers, under the proposed enforcement regulations, will only be required to maintain and provide access to records that are already mandated under the HUD FMHCSS enforcement system,[18] this contention is simply not true. While the records required by DOE may be similar in nature to those already required by the HUD FMHCSS regulations with respect to the HUD manufactured housing standards (which are separate and distinct from the pending DOE energy standards), the DOE-mandated records involve and relate to totally separate and new features, measures, and parameters specific to the DOE standards. Thus, the type, volume and focus of the new records required by DOE will significantly exceed in scope and substance those currently required separately by HUD. And inevitably, by requiring a higher volume of records, relating to subjects and criteria that are not now addressed specifically by the FMHCSS standards, and by establishing a sprawling “star chamber” investigatory system specifically tied to those new and additional records,[19] the DOE enforcement system will precipitate new, additional and substantial costs for manufacturers that will ultimately be passed to consumers in the retail price of new manufactured homes.

Consequently, DOE’s assertion that its energy standards enforcement regulations will have zero cost impact is absurd and false on its face. Conversely, DOE also maintains – incongruously – that additional

costs related to regulatory compliance with its standards will be “minimal.” This contention, however, is subjective, without any evidentiary basis or context and, effectively, meaningless. At the outset, DOE does not define or quantify the term “minimal.” A cost that is considered “minimal,” for example, by an industry corporate conglomerate may not be “minimal” to a smaller independent manufacturer. Similarly, a cost considered “minimal” by those within higher income brackets may not be “minimal” for the lower and moderate-income Americans who predominately depend on the purchase price affordability of federally-regulated manufactured homes as their only available source of affordable homeownership. The claim, therefore, that the cost impact of the proposed DOE enforcement regulations would be “minimal,” is effectively meaningless and without content, and thereby clearly insufficient to satisfy the substantive cost-benefit mandates of applicable law.

Furthermore, and more particularly, DOE ignores the predictably significant costs of compliance with its various proposed investigatory and administrative functions. These include, but are not limited to: (1) the cost of investigating and responding to a Notice of Noncompliance (section 460.310); (2) the cost of investigating and responding to a Notice of Proposed Civil Penalty (section 460.312); (3) the cost of investigating and responding to a Final Notice of Proposed Covil Penalty (section 460.316); (4) the cost of proceedings before an administrative law judge (section 460.320); and/or (5) the cost of a judicial proceeding to vindicate the manufacturers’ rights. Even aside from responding to DOE-initiated actions and/or inquiries, however, manufacturers, under the proposed enforcement regulations, would bear the increased cost and capital burden of maintaining, retaining, organizing, managing, storing, retrieving and investigating records pertaining to the DOE energy standards. This will inevitably result in additional employee-hours and employees, thereby increasing production costs that are ultimately passed to consumers in the acquisition cost of the home. Thus, far from having little or no cost impact, DOE’s proposed enforcement regulations would impose significant additional costs on manufacturers and ultimately consumers in return for little – if any – energy operating savings.

DOE’s cost “analysis,” therefore, consists of bald, baseless assertions and declarations, with no apparent (or stated) consideration of entirely predictable costs that will inevitably result from its new and expanded energy regulation mandates. In a very recent decision – also involving DOE — the Fifth Circuit U.S. Court of  Appeals held that such a “process” was inherently deficient, arbitrary and capricious in violation of the APA (5 U.S.C. 706). In that January 8, 2024 opinion, the court stated:

“[B]are acknowledgment is no substitute for reasoned consideration. We have previously held that “conclusory statements”—like DOE’s—do not constitute adequate agency consideration of an important aspect of a problem. See Corrosion Proof Fittings v. EPA, 947 F.2d 1201, 1227 (5th Cir. 1991); see also Getty v. Fed. Sav. & Loan Ins. Corp., 805 F.2d 1050, 1055 (D.C. Cir. 1986) (“Stating that a factor was considered, however, is not a substitute for considering it.”). The Repeal Rule appears to rest on DOE’s unexplained balancing of evidence. It’s a well-worn principle of arbitrary-and-capricious review that an administrative agency “must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” State Farm, 463 U.S. at 43 (quotation omitted). Here, however, the 2022 DOE recognized the facts that undermined its Repeal Rule, cited other facts to suggest the Repeal Rule would conserve water and energy, see 87 Fed. Reg. at 2683–85, and then implicitly credited the latter without explaining why. That is the touchstone of arbitrary and capricious agency action.”

See, Slip Opinion, Louisiana v. U.S. Department of Energy, No. 22-60146 (5^th Cir. 2024). (Emphasis added). The situation is no different here. As is demonstrated above, DOE’s NPR, ignores clearly inevitable costs that would be necessitated by its standards and proposed enforcement system and, instead, puts forward its own conclusory assertions with no supporting data or analysis.

Beyond these procedural costs, the NPR is vague and fundamentally incomplete in that it fails to specify or address multiple enforcement-related issues, including but not limited to: (1) what standard or quantum of evidence must be met to initiate an investigation (i.e., what threshold level of evidence is required to initiate a DOE compliance investigation)?  (2) what is the standard of proof for determining a noncompliance? (3) which party bears the burden of proof with respect to an alleged noncompliance? (4) what is/would be the standard of proof and/or review before an administrative law judge or reviewing court? All of these issues are pertinent to the regulatory compliance burdens – and, therefore, costs that would be borne by manufacturers (and ultimately lower and moderate-income consumers), but are not specifically addressed by the December 26, 2023 NPR.

And while DOE, in regard to some of these issues, refers interested parties to its Procedures for Administrative Adjudication of Civil Penalty Actions,[20](Administrative Procedures Guidelines) a review of that document indicates that it was developed and adopted as a civil penalty guide for actions under the Energy Policy and Conservation Act of 1975 (EPCA), pursuant to authority conferred by EPCA.[21] But, as DOE has itself pointed out, in response to comments filed by MHARR in DOE’s 2020 EPCA reform and modernization rulemaking, EPCA and EISA are separate, unrelated statutes with separate unrelated and different grants of authority, which are not interchangeable.[22] Accordingly, by DOE’s own precedent, EPCA-based procedures pertaining to “consumer products” and “commercial equipment”[23] are not relevant or applicable to actions under authority of EISA. Thus, the referenced guidelines are inapposite to the enforcement system proposed by DOE and cannot be used to fill procedural and/or substantive gaps in the proposed enforcement system.[24] And without valid and legitimate answers to the foregoing gaps and deficiencies in the DOE proposed enforcement system, that system violates, inter alia, the due process rights of HUD Code manufacturers and must be withdrawn.

B. THE PROPOSED REGULATIONS MIRROR AND EXPAND THE

MOST ONEROUS AND COSTLY ASPECTS OF HUD SUBPART I

            The enforcement regulations proposed by DOE will also have a significant cost impact insofar as they will effectively expand and exacerbate the most costly element of the existing HUD Part 3282 manufactured housing enforcement system – i.e., Subpart I.[25] Under Subpart I, manufacturers must investigate alleged violations of the FMHCSS standards and provide notification and correction of certain types serious defects and imminent safety hazards. Given the extremely broad scope of Subpart I and its lack of any time limitation (in the nature of a statute of limitations), the cost burdens imposed on manufacturers and consumers by Subpart I – as demonstrated by MHARR in written and verbal testimony on multiple occasions[26] – are significant and represent a major (albeit needlessly complex and costly) component of the cost of regulatory compliance under the HUD standards. The de facto addition of the DOE standards to this regime, however, would effectively expand Subpart I and significantly inflate manufacturers’ regulatory compliance costs. Again, therefore, DOE’s claim that the proposed enforcement standards would result in zero or “minimal” costs, is absurd.

Specifically, proposed section 460.306(a)(3) would require a HUD Code manufacturer to “provide [DOE] information and records relevant to determining compliance with any standard or requirement[27]under this part, including … records relating to a manufacturer’s determination of noncompliance, defect, serious defect, or imminent safety hazard, as well as any corrections made by the manufacturer, that the manufacturer is required to maintain under 24 C.F.R. 3282.417.” Since, however, the HUD FMHCSS standards codified at 24 C.F.R. 3280 do not currently include the DOE manufactured housing energy conservation standards and may not – and may never – include the May 31, 2022 DOE standards as promulgated by DOE, and exist and are established under a separate grant of statutory authority, there is, ab initio, no legitimate basis for DOE to seek and be provided with Subpart I records, as those records would not relate to compliance or noncompliance with the DOE energy standards. That is, unless DOE, through this provision, is surreptitiously seeking to incorporate the May 31, 2022 energy standards into Subpart I by fiat.

Any such action (or construction of that provision) by DOE would exponentially increase the cost impact of its proposed enforcement system. As noted previously, Subpart I is one of the most costly, labor-intensive elements of the HUD FMHCSS enforcement system and has been the focus of extreme regulatory abuse for decades. Expanding that system through the inclusion of DOE energy standards that are not currently a component of Part 3280 would only serve to drastically increase those costs.[28]

Even worse, though, the enforcement regulations proposed by DOE would sidestep or vitiate newer provisions in Subpart I which were recommended by the MHCC and adopted by HUD to better protect the due process rights of regulated parties, eliminate baseless or frivolous claims and/or “investigations” and, at the same time, ensure the cost-effective protection of consumers.[29] Thus, while the proposed DOE enforcement regulations specifically address certain stages and aspects of DOE’s anticipated enforcement and regulatory compliance process, they do not, by their own terms, incorporate crucial safeguards from the post-2013 reformed HUD Subpart I system including, but not limited to:

(1) a specific threshold standard for inquiry and investigation (e.g., 24 C.F.R. 3282.403 (a), (b)(1) – regarding information that “likely” indicates the existence of a noncompliance or defect);

(2) a “good faith” defense or safe haven for manufacturers (e.g., 24 C.F.R. 403(c)); or

(3) a finding that a noncompliance or defect “exists or likely exists” as a threshold for any further action beyond an initial investigation (e.g., 24 C.F.R. 3282.405(b)(3).

In the absence of these safeguards, a DOE investigation and resultant manufacturer compliance burdens could be triggered by any single piece of information, regardless of its legitimacy or veracity, with manufacturers then forced into an investigatory regime with no fixed standards or burdens of proof (see, discussion above), where DOE can demand and subpoena[30] any documents that it wishes, virtually without limitation,[31]while pursuing claims that a manufacturer would apparently have the burden to disprove. Under this regime, manufacturers would (and will) be forced to conduct multiple overlapping investigations and respond to multiple overlapping document requests, at significant cost, without regard to the legitimacy, veracity or actionability of the allegations underlying any such demand for investigation or documents.

In summary, then, DOE’s proposed enforcement regulations would establish an energy enforcement ‘star chamber” with few or no limits on DOE’s power to investigate manufacturers, demand documents and records, make findings related to compliance, and impose penalties, all without any fixed standards or procedures,[32] with the burden on manufacturers to prove compliance. Notwithstanding DOE’s bald and baseless assertions that these procedures will have little or no cost to be netted against the alleged benefits of the May 31, 2022 standards, it is evident that the cost to manufacturers to comply with this system (and particularly to vindicate their rights in subsequent and ancillary proceedings) will significantly increase and expand the regulatory compliance burdens borne by manufacturers and the regulatory compliance costs ultimately paid by consumers.

The fact that DOE does not wish to go to the trouble to model and account for these additional costs, choosing instead to just fall back on the conclusory pre-hoc cost assertions contained in its May 31, 2022 “final rule” Federal Register notice,[33] is both telling and fully consistent with the pattern of deceit and duplicity that has characterized this rulemaking from the outset.

The reality is that DOE’s proposed enforcement system will impose significant additional compliance costs on manufacturers and ultimately consumers — in a market serving lower and moderate-income consumers — millions of whom will be totally excluded from homeownership and all of its attendant benefits, contrary to the longstanding public policy of multiple administrations of both parties.

Furthermore, DOE’s proposed civil penalty methodology is excessive, oppressive and beyond the means of many, if not most, smaller independent HUD Code producers.[34] Moreover, DOE neither shows nor provides any statutory grounds for levelling such penalties on a per diem basis, which would inevitably lead to extremely high penalties with correspondingly discriminatory impacts.[35]

III. CONCLUSION

For all of the foregoing reasons, as well as those set forth in prior MHARR comments regarding the DOE manufactured housing energy standards and their proposed enforcement, DOE’s entire manufactured housing energy standards regime is fatally flawed, and should be withdrawn. This follows, in part, from the fact that DOE never troubled itself to fully understand the unique nature of comprehensively federally-regulated manufactured homes and the manufactured housing program itself. Consequently, DOE should – and must – go back to very start, in full and proper coordination with HUD and the statutory federal regulator of manufactured housing construction and safety – and the statutory Manufactured Housing Consensus Committee to develop appropriate, cost-effective standards in full compliance with all relevant legislation for such homes and the millions of lower and moderate-income Americans who depend on manufactured homes for affordable, non-subsidized homeownership.

Sincerely,

Mark Weiss
President and CEO

cc:  Hon. Marcia Fudge
Hon. Shalanda Young (OMB)
Hon. Tim Scott
Hon. Sherrod Brown
Hon. Patrick McHenry
Hon. Maxine Waters
HUD Code Industry Manufacturers, Retailers, Communities
and State Associations

Footnotes [Note: footnote #14 below is missing in the original].

[1] See, 86 Federal Register, No. 163 (August 26, 2021), Energy Conservation Standards for Manufactured Housing,” pp. 47744, et seq. This followed an earlier (June 17, 2016) DOE Notice of Proposed Rulemaking on the same topic with proposed manufactured housing “energy” standards which were rejected by the Office of Information and Regulatory Affairs (OIRA). See, 81 Federal Register, No. 117 at pp. 39756, et seq. A modified standards regimen was proposed via a Notice of Data Availability (NODA) issued by HUD on August 3, 2018. See, 83 Federal Register, No.150 (August 3, 2018) at p. 38073, et seq.

[2] See 42 U.S.C. 17071(b)(1): “The energy conservation standards established under this section shall be … cost effective … based on the impact of the code on the purchase price of manufactured housing and on total life-cycle construction and operating costs.”

[3] See, e.g., 42 U.S.C. 5401(b)(2); 5 U.S.C. 706 and Executive Order 12866, among others.

[4] See, 86 Federal Register, supra at p. 47759, col. 1.

[5] DOE has – and continues – to take the anomalous position that its May 31, 2022 manufactured housing energy standards are “final” (see, e.g., Defendant’s Reply in Support of Motion to Dismiss, Manufactured Housing Institute v. Department of Energy, No. 1:23-CV-00174DAE) (“DOE never argued that the standards rule does not constitute final agency action”), despite the fact that DOE has not now and has not ever established the full costs of the standards (including regulatory compliance) for purposes of the cost-benefit analysis affirmatively required by applicable law to justify and establish a “final” standard.

[6] See, 5 U.S.C. 706.

[7] See, MHARR’s October 25, 2021 Comments and Attachments in response to DOE’s Supplemental Notice of Proposed Rulemaking regarding Manufactured Housing Energy Conservation Standards, supra at pp. 19-20 and notes thereto. Footnotes omitted.

[8] See, e.g., 42 U.S.C. 5401(b)(2); 5 U.S.C. 706 and Executive Order 12866, among others.

[9] See, 86 Federal Register, supra at p. 47759, col. 1.

[10] DOE has – and continues – to take the anomalous position that its May 31, 2022 manufactured housing energy standards are “final” (see, e.g., Defendant’s Reply in Support of Motion to Dismiss, Manufactured Housing Institute v. Department of Energy, No. 1:23-CV-00174DAE) (“DOE never argued that the standards rule does not constitute final agency action”), despite the fact that DOE has not now and has not ever established the full costs of the standards (including regulatory compliance) for purposes of the cost-benefit analysis affirmatively required by applicable law to justify and establish a “final” standard.

[11] See, 5 U.S.C. 706.

[12] See, MHARR’s October 25, 2021 Comments and Attachments in response to DOE’s Supplemental Notice of Proposed Rulemaking regarding Manufactured Housing Energy Conservation Standards, supra at pp. 19-20 and notes thereto. Footnotes omitted.

[13] See, 88 Federal Register, No. 57 (March 24, 2023) “Energy Conservation Standards for Manufactured Housing; Extension of Compliance Date,” p. 17745, et seq.

[15] See, 88 Federal Register, supra at p. 88848, col.3.

[16] Id.

[17] See, 24 C.F.R. 3282.

[18] See e.g., 88 Federal Register, supra at p. 88848, col. 3: “[T]he documentation that manufacturers would be required to maintain by section 460.306(a) of this proposed rule is already subject to separate, existing maintenance requirements imposed by HUD. Therefore, this proposed rule would not impose any new, additional costs beyond the costs already required by separate requirements.” (Emphasis added). This contention, however, is undermined and shown to be false and misleading by the proposed regulations themselves. See, note 20, infra.

[19] The virtually open-ended, unlimited writ that would be provided to DOE by the proposed regulations to demand from HUD Code manufacturers any and all records related to the DOE standards – and not just those required by HUD – is demonstrated by proposed section 460.306(c). That section provides in relevant part: “A manufacturer must provide to DOE the information and records described in paragraph (a) of this section [i.e., records otherwise required by HUD], and any additional available records DOE determines necessary to determine a manufacturer’s compliance with any standard or requirement under this part, during an administrative action, investigation, or audit conducted by DOE against the manufacturer pursuant to this subpart.” (Emphasis added). In reality, then, and pursuant to precedents that will undoubtedly be established during various DOE investigations and “administrative actions” pursuant to the proposed regulations, manufacturers will inevitably be required to maintain and produce virtually any document or scrap of information pertaining in any way to the DOE energy standards. This, in turn, will further increase and exacerbate manufacturers’ regulatory compliance costs.

[20] See e.g., 88 Federal Register, supra at p. 88853, col. 2.

[21] See e.g., Administrative Procedure Guidelines, supra at p. 1: “The U.S. Department of Energy (DOE or the Department) issues this policy statement regarding civil penalties for violations of energy and water conservation standards and requirements under the Energy Policy and Conservation Act, as amended.”

[22] See, 85 Federal Register, No. 31 (February 14, 2020), “Energy Conservation Program for Appliance Standards: Procedures for Use in New or Revised Energy Conservation Standards and Test Procedures for Consumer Products and Commercial/industrial Equipment,” p. 8626, at p.8676, col.1: “With respect to MHARR’s suggestion to apply the Process Rule’s provisions to the separate rulemaking on manufactured housing that is currently underway, while DOE appreciates this suggestion, we note that the statutory authorities for manufactured housing and the appliance standards that are addressed by this final rule are in separate chapters within Title 42 of the U.S. Code and have no relationship with each other—aside from applying generally to DOE. Consequently, DOE is declining to adopt this suggestion.” (Emphasis added).

[23] See, Administrative Procedure Guidelines, supra at p. 1.

[24] Even beyond this fatal disconnect in statutory authority, the Administrative Procedure Guidelines, by their own terms are not binding on DOE, which can change and alter those “guidelines” at any time. See, Administrative Procedure Guidelines at p. 1, n.1: “The procedures set forth in this document are intended solely as guidance. They are not intended, and cannot be relied on, to create rights, substantive or procedural, enforceable by any party. The Department reserves its right to act at variance with this guidance and to change it at any time without public notice.” As a result, the “guidelines” are meaningless in terms of protecting the due process rights of manufacturers and establishing a clear and consistent process for enforcement actions under the proposed DOE regulatory compliance regulations.

[25] See, 24 C.F.R. 3282.401, et seq.

[26] See e.g., February 1, 2012 testimony of MHARR submitted to the U.S. House of Representatives Subcommittee on Insurance, Housing and Community Opportunity at a hearing on “Implementation of the Manufactured Housing Improvement Act of 2000.”

[27] MHARR strenuously objects to any reference to compliance with “requirements” as distinct from duly promulgated standards and regulations. Use of the word “requirements” implies that there could be mandates imposed by DOE on manufacturers other than those set forth in the standards and regulations promulgated pursuant to EISA and the APA. As MHARR has consistently maintained in the context of the existing HUD manufactured housing program, any such extraneous mandates would be invalid, void and non-binding in accordance with applicable law.

[28] The DOE proposed regulations also – at a minimum – raise serious questions regarding the inter-relationship of  section 460.306(a)(1)-(3), manufacturers must provide DOE with records already provided to HUD Design Approval Primary Inspection Agencies (DAPIAs) and Production Inspection Primary Inspection Agencies (IPIAs). Doe this mean that DOE will be second-guessing and, potentially, reversing DAPIA and/or IPIA determinations? Does it mean that DOE will sit as a “super” DAPIA or IPIA with respect to energy-related issues? And what degree of relation to the energy standards would need to exist for DOE to intervene or act as a “super” DAPIA/IPIA. Again, these are only some of the significant, cost-relevant questions posed by DOE’s proposed enforcement regimen.

[29] See, 78 Federal Register, No. 190 (October 1, 2013) “Manufactured Housing: Revision of Notification, Correction and Procedural Regulations” at p. 60193, et seq.

[30] DOE, in its December 26, 2023 NPR, implicitly acknowledges its lack of direct subpoena authority under EISA: “DOE is … evaluating and considering its subpoena authority under EISA.” See, 88 Federal Register, supra at p. 88846, col. 3.

[31] See, proposed section 460.306(c) and discussion supra related thereto.

[32] Which DOE reserves the right to change without rulemaking in the Administrative Procedure Guidelines.

[33] See, 88 Federal Register, supra at p. 88849, col. 1: “… DOE tentatively concludes additional costs imposed by this proposed rule would be minimal. For this reason, the adoption of the enforcement procedures proposed in this document would not alter DOE’s assessment in the May 2022 Final Rule of the costs resulting from the adoption of DOE’S energy conservation standards.” (Emphasis added).

[34] See e.g., Id. at p. 88846, col. 2-3: “For example, if a manufactured home fails to comply with three standards in Part 460, the manufacturer has sold, imported or distributed in commerce 100 units of that model, and the retail list price of that model is $200,000, then the manufacturer will be subject to a civil penalty of up to $600,000 ($200,000 retail list price X 1% X 3 violation X 100 units).

[35] Proposed section 460.304(c) states: “For violations of section 460.302(a)(1), each day of noncompliance shall constitute a separate violation.” There is, however, no section 460.302(a)(1) contained in the proposed rule. MHARR assumes that DOE meant to refer to section 460.304 (a)(1) (retention and access to manufacturer records). Regardless, though, this provision is baseless and unduly and disproportionately punitive.

Part III – Additional Information with More MHProNews Analysis and Commentary 

“But that is not reality.“

– Dr. Kevin Roberts, Ph.D.

For the next several moments, take a big step back from the discussion above. The premise for this DOE manufactured housing energy rule is based in part on the widespread claim about climate change and purported problems associated with the generation of more CO2 caused by human activity.  That noted, see the report linked below.

With the thoughts of Dr. William Happer in mind, pivot back to the following.

“For too long, the elites of the World Economic Forum have told us that open borders and illegal immigration are okay. That public safety isn’t a problem in big American cities. That we have this existential crisis with so-called climate change. But that is not reality.” So said Kevin D. Roberts, Ph.D., President of The Heritage Foundation in an email to MHProNews dated 1.30.2024. MHProNews reported on his planned remarks in the report linked below. Those remarks are still timely.

Dr. Robert’s emailed message to MHProNews and others continued as follows.

On your behalf, I told them that the next conservative president will make a list of every policy that’s ever been proposed at the World Economic Forum—and burn it.

It’s laughable that the World Economic Forum claims to protect liberal democracy. And that the word “dictator” would come up on the panel not in reference to the global elites, but to former president Donald Trump.

These self-appointed elites don’t respect our values or our freedom because it undermines the accretion of their power. They don’t care what Americans or free people around the globe care about: securing our borders, decreasing crime, fostering efficient energy production, standing up to China, and protecting our children from gender ideology.

And “we the people” are tired of it.

That’s why the globalists should expect a reclaiming of individual sovereignty in 2025. When conservatives take back the White House next year, the Davoisie can kiss their woke pet projects goodbye. The American people have a different mandate.

In statehouses across the nation, common-sense Americans are standing up. Dozens of states have enacted laws to protect children from gender ideology, secure free and fair elections, enact school choice, and more. Now that momentum is bubbling up to the federal level as the 2024 presidential election fast approaches. …”

There are thought-leaders on the right, just as there are thought-leaders on the left.

There is a case to be made that the truth is both feared by some souls but is nevertheless compelling. Reality is. Reality and truth can be twisted, downplayed, or ignored.  But they remain true and real.

Dr. Roberts and Heritage are part of the leadership involved in what has been dubbed Project 2025. See more on that plan to ‘drain the swamp’ by bringing in new people by the thousands in the reports linked below.

Agree or disagree with their premise, it is apparent that millions of Americans – including numbers of the so-called ‘ruling elites’ ‘Establishment’ or ‘donor class’ who are in ‘the top 1 percent’ that have long dominated various aspects of our economy, society, and politics – believe that Joe Biden is headed for defeat in 2024.

Millions believe that deposed president Trump will win the GOP nomination. Millions also believe that he will win the 2024 election vs. Biden. As MHProNews previously reported, dozens of swing state and national polls show Trump defeating Biden.

In that group on the political right who are pushing for what they see as solutions to practical problems that arose during Trump’s ‘first’ term in office, Project 2025 has been moving along for months. The aim of Project 2025 is to make a transition into power for Trump and conservatives smoother and more efficient. It is a plan that will help marginalize the effects of the ‘deep state’ a.k.a. ‘the swamp.’

As more people are turned off by the realities of Joe Biden’s and his Establishment cohorts’ policies on the border, their causing higher inflation through too much spending and borrowing, their policies that fostered more crime, and their policies on climate/energy/and related, among numerous souls there is the belief that Trump – despite perceived flaws – is the man who will beat the Establishment in 2024 at their own games.

Lessons from the Automotive Industry

While it is apples and oranges, a look at what has been occurring in the automotive industry is useful for manufactured housing pros, investors, and advocates.

The claims by MHARR and MHI’s attorneys is that the DOE energy rule as proposed will harm our industry’s production, drive costs higher, and that there are no proposed offsets that will lesson those negative impacts.

• With those notions in mind, in the automotive world note that General Motors: “reported a $1.7 billion loss on Tuesday in its fourth quarter earnings call in the production and sale of its electric vehicle line” per right-leaning WND.
• Per left-leaning Business Insider said 5 weeks ago that: “Just over half of Ford’s nearly 3,000 dealerships in the US have opted out of the investments necessary to sell electric vehicles like the F-150 Lightning and Mustang Mach-e, Ford says.” That was in a report dated 12.21.2023.
• Autopian said about Ford on 10.30.2023 that: “Despite the higher volume, EV losses continued to rise in the third quarter, with the company posting an operating loss of $1.3 billion, up from $1.1 billion in the previous quarter and more than double its loss from Q3 2022. This means that Ford lost around $36,000 for every electric vehicle it sold in the quarter, surpassing its estimated $32,350 loss per EV in the second quarter.”

So, when MHARR and/or MHI’s attorneys have argued about the possible harm that could befall the manufactured housing industry, such stunning factual nuggets in those bullets above from outside of our industry should be kept in mind.  Automotive makers can take some giant hits. Manufactured housing can’t.

What Stopped the DOE Energy Rule Before?

According to a Washington D.C. source to MHProNews, among the factors that stopped the advance of the DOE energy rule during the Trump Administration was a decision made at the Office of Management and Budget (OMB).

But there were also regulatory freezes and rollbacks announced by Trump during his successful 2016 campaign which he began to implement soon after he took the oath of office. According to a response generated by Bing’s Copilot to the following Q&A initiated by MHProNews is the following.

> “Give a snapshot of Trump executive orders 13771 and 13777.”

Executive Order 13771, signed by President Trump on January 30, 2017, aimed to reduce regulation and control regulatory costs¹. It required that for every new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled¹.

So, the DOE energy rule for manufactured housing was halted under the Trump Administration in the wake of various moves then underway to freeze and roll back costly and harmful regulations.

George Washington University (GWU.edu) has a regulatory studies center. On their site following the link below are their remarks with respect to Trump EO 13771.

https://regulatorystudies.columbian.gwu.edu/transparency-and-public-commenting-under-eo-13771

DOE best practices

DOE is also accepting public comments on potential regulatory reforms through Requests for Information published in the Federal Register. For example, it has received 132 comments on the ways DOE regulations are affecting interested parties. DOE is working to respond to comments on regulations being reconsidered and is also proposing related rules, such as a review of the current Appliance Standards Program and a proposed rule on expediting natural gas exports. DOE also created a specific email address for the purpose of collecting public comments on its initiative.”

Longtime and detail-minded readers at MHProNews will recall that MHARR fostered an alliance with a member of GWU’s regulatory reform team.

That was then. People will at times move on from their previous roles.

But one of several important takeaways from the facts around the prior halt of the DOE energy rule during the Trump era was MHARR’s consistent and persistent pushback, which included creating allies that arguably paid off.

A look at the manufactured housing industry’s production at that time (circa 2016-2017) is a reminder that the industry’s HUD Code producers could ill afford to lose sales or sustain costly regulations. While GM, Ford and other auto giants might be able to lose several billions of dollars due to harmful regulatory burdens and politically-driven EV programs, manufactured housing is not big enough to sustain that impact. Manufactured housing’s independents could particularly be hit hard. Several MHI member firms might be shaken badly by the planned regulations.

Look carefully at the production data from the chart above. In 2016, Obama-Biden’s last full year in office, only 81,136 new HUD Code manufactured homes were produced.

The very next year, 2017 was mostly under Trump. Regulatory freezes and restructuring lifted for the reasons noted above. New HUD Code manufactured home production jumped from 81,136 to 92,902.  With those notions in mind, consider this Q&A with Copilot.

> “While there would have been several causes for it, the history reflects the point that HUD Code manufactured housing production jumped in the wake of those regulatory reforms under Trump. Manufactured home production in 2017 was 81,136, the last full year Obama-Biden was in office. In 2017, the first year of the Trump presidency, manufactured home production jumped to 92,902.  What was that rate of increase?”

According to the data, manufactured home production in 2017 was 81,136¹. In the first year of the Trump presidency, that is, in 2017, manufactured home production jumped to 92,902. Therefore, the rate of increase in manufactured home production from 2016 to 2017 was approximately 14.5%.

I hope this helps!

Learn more

1 hud.gov 2 manufacturedhousingassociationregulatoryreform.org 3 manufacturedhousingassociationregulatoryreform.org 4 manufacturedhousingassociationregulatoryreform.org“

Copilot obviously makes its own AI powered decisions on where to source information. That said, note that three of the four responses above are from the MHARR website. Where was MHI in that mix? Despite MHI’s larger size, more staff and budget, it is MHARR that is the useful source for information.

The answer to that is troubling, but important. As MHProNews reported back then and more recently, MHI was not only MIA on useful published data. MHI was also quietly fostering the implementation of the harmful DOE energy rule regulations that MHARR before, during, and after the Trump era was working to stop. MHI essentially was forced into a U-turn or ‘flip flop’ back then. MHARR’s fidelity and persistence paid off.

 

 

There is a historic and other evidence-based case can be made that MHI was pressured by MHARR’s persistence then and more recently to engage in the undoing of moves that the powers that be at MHI were pushing. Much of what MHI does is posturing.  By contrast, MHARR has to be mindful of what MHI is doing, why they are doing x, and still be mindful of the goal.  MHARR’s position is more challenging, because the don’t have the same resources that MHI does. That said, when the history of these efforts is understood, it becomes clear that MHI is either led by incompetents, OR that MHI is posturing for effect and that MHI is slyly advancing their own somewhat unstated agenda. That agenda is consolidation of the industry. The ‘big boys‘ at MHI are willing to let the industry suffer so long as they can continue to consolidate the industry. The reports linked below give specific and detailed examples of that fact and evidence-backed pattern.

 

 

But it wasn’t just the DOE’s manufactured housing energy rule that MHARR kept pressing, building alliances to stop, and otherwise thwart.

During that same timeframe that the threat from the DOE rule were looming, MHARR quietly helped expose the folly of the MHI-backed Preserving Access to Manufactured Housing Act. Yes, MHProNews played a significant role in exposing the arguably treachery at MHI involved in each of those efforts (DOE and Preserving Access) too.

 

 

MHProNews also reported on the deal offered by Ishbel Dickens on Preserving Access (then bill HR650). Dickens said in an email to MHProNews that when MHI leaders were offered a compromise that could have been struck with the CFPB without the need for legislation, that MHI turned them down. Note that MHI is not known to have revealed that possible deal in writing to the industry and members as they kept pushing Preserving Access.  MHI leaders pushed Preserving Access knowing what Jason Boehlert revealed that they bill was doomed from the start.

 

By accident and/or design, MHI’s corporate/board leaders de facto promoted policies and stances that made regulations a tool for consolidators of the manufactured home industry. Recall the periodically mentioned insight from Carol Roth on how regulations can be used by bigger companies to harm smaller ones.

 

 

Then recall Kevin Clayton’s moat remarks in that now infamous (but in some ways, useful) video interview with pro-Berkshire Hathaway Robert Miles.

 

 

As Kevin Clayton bluntly put it: “But some of our competitors do a good job, but our plans are to make that difficult for them.”

And that must be viewed through the lens of Buffett’s animus for competition. “Warren likes to say there’s two kinds of competition that he doesn’t like, foreign and domestic.”

The purpose of the moat is to thwart competitors. And Buffett, said Clayton, preached to his CEOs, and Clayton said they in turn preach to their people: ‘deepen and widen your moat.’

Buffett-Clayton-21st strategies apparently thwarted the industry from within and without. Buffett bucks to nonprofits apparently flowed to the Sierra Club which brought the legal action against DOE while Trump was still in office.

 

It should also be kept in mind that Berkshire Hathaway has interests in conventional real estate too. Clayton Homes has increasingly in the last decade or so been investing in site builders. See their annual report for more on that, linked below.

 

MHI as a Puppet for Larger Corporations

Think of MHI as a puppet. Corporate interests control that puppet.  That MHI puppet serves multiple purposes. Among them? In no particular order of importance:

• MHI meetings create an opportunity for smaller brands to engage with larger ones that are interested in consolidating the smaller brands.
• MHI awards create illusions that some will strive to ‘earn’ but which can also be used to give cover for companies that may have a problematic relationship with their own customer base.  Some MHI awards are absolutely outrageous in whom they have called ‘excellent‘ despite their D or F ratings with the Better Business Bureau (BBB) or other rating services.
• MHI meetings and events are an opportunity to create ‘feel good’ experiences. There is a natural desire on the part of some to ‘belong’ to a group and have peer-to-peer discussions around a meal, networking mixer, ‘educational’ sessions, etc. That also fosters illusions created by MHI that MHARR and others have described.
• By posturing efforts in a ‘shell game‘ fashion they do build up a kind of ‘trust’ that MHI’s leaders arguably do not merit.
• The industry is kept performing at a low level, which serves as a deterrent or “moat” for new entries into the industry.

Consumers are harmed by this process. So too are smaller businesses, who will often have a better relationship with their customers than the larger brands may.  Employees are harmed by this process too.

MHI CEO Lesli Gooch is not likely to admit that she is a corrupt puppet.

 

 

So, there is a larger trade association that has successfully managed to keep the manufactured housing industry underperforming for over 20 years.

 

 

The DOE energy rule is just one of the tools provided by the system that MHI’s corporate masters can use to indirectly tame competitors. During the time that this threat from the DOE rule has been looming, several consolidations have occurred.

 

 

Objectively Speaking, MHI Can’t Have it Both Ways

For those who read MHI’s largely self-serving propaganda, one might think that the manufactured home industry is doing well. That the industry’s leaders are going from one successful engagement with public officials to another.

 

But a closer look reveals a different picture. If not for MHI’s critics, and there are several, manufactured housing might already be down to a relatively few consolidators. The scenario for the industry may be worse than it already is. Recall that MHProNews warned, based on insider tips, that this current downturn was coming prior to the start of the downturn. The DOE rule is an aspect of that bigger picture.

 

MHI Claims ‘Momentum’ in D.C. – HousingWire, MHInsider Showcase Manufactured Housing Institute CEO Lesli Gooch Op-Ed on DOE Energy Rule Sans Critique, Fact Check, Viewpoints; plus MHMarket Update

 

Other than MHProNews/MHLivingNews, other bloggers and trade publications generally just carry MHI’s water. They talk about ‘education‘ to ‘grow the industry’ even as the industry is shrinking as measured by the key metric of production. Manufactured housing has several hurdles, as Harvard researchers recently reported.

 

 

Corruption and/or ineptitude within without manufactured housing are keeping the most proven solution for the affordable housing crisis at low ebb. The DOE energy rule, as significant as it is, is just one of the challenges that is keeping manufactured housing from its historic norm. Ironically, one of MHI’s own members have made that point repeatedly through the illustration of the average HUD Code and ‘mobile home’ production since the start of the industry. That annual mobile/manufactured home national production average total keeps declining in the 21st century, even though there are tens of millions of more Americans.

 

 

Summing Up, Next Steps, and Conclusion

Utility Dive’s report reminds us that no one is happy with this new DOE energy rule. Per Copilot, the following summary.

…According to a report by Utility Dive, the new rules have been criticized by both efficiency advocates, who argue the tiered standard is too lax, and home manufacturers, who say it will drive up costs ¹. The Manufactured Housing Association for Regulatory Reform (MHARR) has filed an Amicus Curiae or “Friend of the Court” brief and related Motion for Leave with the United States Supreme Court against the DOE final rule ². The DOE’s new energy standards for manufactured housing are expected to save owners and renters $10 billion on utility bills, reduce carbon pollution, and ensure more access to affordable mobile homes ³. However, the new efficiency rules have also raised concerns about the upfront affordability of manufactured homes and the potential impact on the housing supply ³. …”

That remark with DOE’s claims (Footnote #3, above) is a logical fallacy. As MHARR and MHProNews have pointed out, new energy standards don’t help existing mobile homes or manufactured homes. New DOE standards as proposed won’t save a dime, much less $10 billion dollars.  That’s a false claim. Energy standards as proposed would only apply to new manufactured housing. It is stunning that the DOE would have used language that could be (mis)understood in that fashion, but there it is.

• Ignored, these DOE standards will go into place.
• Properly resisted with legal, lobbying, combined with proper information and understanding, and they may still be beaten, as MHARR has helped organize and achieve before.
• Failure to stop these DOE standards, and the industry is bound to see yet another contraction and more consolidation.
• The premise for the DOE standards is flawed, for reasons MHARR and MHProNews have reported.
• MHI’s efforts have been two-faced and tepid.

To learn more about the big picture or more about the DOE specific terrain, see the linked and related reports.

>> Q&A with Danny Ghorbani on DOE Energy Rule.

Employees and Contractors of ‘Predatory’ Brands in Manufactured Housing Industry Have Potential POWER in 2024 – Facts, Insights, Analysis in Brief – plus Sunday Weekly MHVille Headlines Recap

A follow up with MHProNews’ planned remarks on the subject to Regulations.gov is planned. Others can provide remarks via this link here.

https://www.regulations.gov/commenton/EERE-2009-BT-BC-0021-2570

 

Programming Notices:

• MHProNews plans a special report on a developing story that no other sources in MHVille trade media have yet to report on. That may be tomorrow morning’s item. Watch for it.
• Next week, new production figures for December 2023 will be available, so 2023 totals will be available. Watch for more of the best fact- and evidence-based data with analysis then.

Part IV – is our Daily Business News on MHProNews stock market recap which features our business-daily at-a-glance update of over 2 dozen manufactured housing industry stocks.

This segment of the Daily Business News on MHProNews is the recap of yesterday evening’s market report, so that investors can see at glance the type of topics may have influenced other investors. Thus, our format includes our signature left (CNN Business) and right (Newsmax) ‘market moving’ headlines.

The macro market move graphics below provide context and comparisons for those invested in or tracking manufactured housing connected equities. Meaning, you can see ‘at a glance’ how manufactured housing connected firms do compared to other segments of the broader equities market.

In minutes a day readers can get a good sense of significant or major events while keeping up with the trends that are impacting manufactured housing connected investing.

Reminder: several of the graphics on MHProNews can be opened into a larger size. For instance: click the image and follow the prompts in your browser or device to OPEN In a New Window. Then, in several browsers/devices you can click the image and increase the size. Use the ‘x out’ (close window) escape or back key to return.

Headlines from left-of-center CNN Business – from 1.30.2024

• Half of US tenants can’t afford to pay their rent. Here’s what’s ahead
• What to expect from the Fed meeting
• PayPal is laying off 2,000 employees
• Billionaire hedge fund manager Ken Griffin photographed on June 23, 2022.
• $500 million Harvard megadonor halts donations, says elite schools produce ‘whiny snowflakes’
• IBM offices in Foster City, California, US, on Wednesday, June 14, 2023.
• IBM tells managers to come to the office or leave their jobs
• A job seeker attends a Veteran Employment and Resource Fair in Long Beach, California, on Tuesday, Jan. 9, 2024.
• US job openings grew in December
• What is catfishing and what can you do if you are catfished?
• NEW YORK, UNITED STATES – 2020/07/13: ATMs at Citibank branch of Citigroup are seen in New York.
• Profit plummeted at the bank because of COVID-19 pandemic. Citibank is expected to reveal its second-quarter profits crashed by 50% or more.
• NY AG sues Citibank for failing to protect customers from hackers and scammers
• A UPS truck is parked on a street in Midtown Manhattan on August 07, 2023 in New York City.
• UPS is cutting 12,000 jobs
• Right-wing media figures target Taylor Swift with absurd conspiracy theory ahead of the Super Bowl
• Fulton County government outage: Cyberattack brings down phones, court site and tax systems
• Starbucks is launching its olive oil-infused beverages nationwide
• GM said the strike cost it $1.1 billion. But it could post a record profit this year
• News channel sparks outrage over ‘sexist editing’ of female lawmaker’s image
• Elon Musk says his Neuralink startup has implanted a chip in its first human brain
• Toyota remains world No.1 but its list of problems is growing
• Some blue chip stocks are crumbling. Here’s why
• She says she was raped by a Lyft driver and had a child. Now she’s suing
• Europe should brace for ‘harsh decisions’ if Trump is re-elected, says ECB’s Lagarde
• Amazon Prime’s ‘Expats’ was set and filmed in Hong Kong. But it’s not being shown there
• Ticket prices for this year’s Super Bowl might even make a billionaire like Taylor Swift blush
• Europe’s biggest airline has ‘a lot of confidence’ in Boeing chief David Calhoun
• Clouds over global economy ‘beginning to part’ but Red Sea crisis could spell trouble, says IMF

 

Note: to expand this image below to a larger or full size, see the instructions

below the graphic below or click the image and follow the prompts.

 

Headlines from right-of-center Newsmax 1.30.2024

• Cotton: Iran ‘Laughing at Us’ Under a ‘Cowardly’ Biden
• “You don’t deter people like the ayatollahs who govern Iran by going on TV and saying, ‘Don’t, don’t, don’t, don’t, don’t.’ You do it by holding at risk and ultimately destroying or killing the things and the people they hold most dear, like the Revolutionary Guard shock troops.” [Full Story]
• Related Stories
• Biden to Attend Return of Troops Killed in Jordan
• Biden: I’ve Decided on Response to Fatal Attack on US Troops
• US Paying for Approach in Middle East
• Shock, Mourning for 3 Georgia Soldiers Killed in Jordan
• Blinken: Middle East at Its Most Dangerous Since 1973
• Undercover Israeli Commandos Kill 3 Militants in Hospital Raid
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• Protesters Block Aid to Gaza: It’s Going Directly to Hamas
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Note: to expand this image below to a larger or full size, see the instructions
below the graphic below or click the image and follow the prompts.

Notice: MHProNews invites the firms named in these reports to respond to any concerns about possibly inaccurate information via email that identifies the concern and offers evidence that sheds a different light on the topic discussed. That said, neither MHI nor MHI publicly traded ‘insider brands’ have done so. They’ve been repeatedly invited to do so, including an outreach on Dec 7, 2o23.

APO = Apolo Global Management – bought Inspire Communities

BAM = Brookfield Asset Management – owns and invests in manufactured home communities (MHCs).

BLK = BlackRock – conglomerate has investments in firms and operations involved in manufactured housing.

BRK-A = Berkshire Hathaway – includes outright ownership of Clayton Homes, 21st Mortgage Corp, Vanderbilt Mortgage and Finance, other manufactured home industry linked firms (MHC brokerage, suppliers, etc.).

BX = Blackstone – Blackstone Group LP has made its first big bet on manufactured housing by buying a portfolio of communities sold by Tricon Capital Group Inc.

CDPYF = Canadian Apartment Properties Real Estate Investment Trust – also has manufactured home communities (MHCs).

CIGI = Colliers International Group Inc. – The Manufactured Housing and RV Group “We Assist Owners and Investors with Disposition, Acquisition, and Financing for Manufactured Housing Communities and RV Parks.”

CG = The Carlyle Group – has manufactured home communities investments.

CSGP = CoStar Group – is commercial real estate’s leading provider of information, analytics and online marketplaces. They acquired listing service Homes.com.

CVCO = Cavco Industries – manufactured home and other factory-built housing production, retail, finance, insurance.

ECNCF = ECN Capital Group – includes manufactured home lender Triad Financial Services.

ELS = Equity LifeStyle Properties – includes land lease manufactured home communities (MHCs), but also RV and marine slips holdings. Also has captive manufactured home retail operations, and parent to Datacomp/MHVillage.

FGF = FG Financial Group – FG Communities “Owns and Operates Growing Portfolio of Manufactured Housing Communities.”KEY = KeyCorp – manufactured home community financing and manufactured home single-family mortgage financing.

KMMPF = Killam Apartment REITs- (includes manufactured home communities (MHCs).

LCII = LCI Industries – components for the manufactured home industry and others (RVs, housing, etc.).

LEGH = Legacy Housing – produces manufactured homes, tiny houses, retail, and captive finance operations.

LPX = Louisiana Pacific Corporation – components for the manufactured home industry and others (housing, etc.).

MHC-UN.TO = Flagship Communities Real Estate Investment Trust (REIT).

MHPC = Manufactured Housing Properties – land lease manufactured home communities (MHCs).

MMI = Marcus and Millichap – commercial real estate brokerage services that include land lease manufactured home communities (MHCs).

NOBH = Nobility Homes – produces and offers captive retail, financing, and insurance services for HUD Code manufactured homes and modular homes.

PATK = Patrick Industries – components for the manufactured home industry and others (RVs, housing, etc.).

SKY = Skyline Champion – produces and offers captive retail, financing, and insurance for HUD Code manufactured homes and modular homes.

SUI = Sun Communities – includes land lease manufactured home communities (MHCs), but also RV and marine slips holdings. Also has captive manufactured home retail operations.

UMH = UMH Properties – includes land lease manufactured home communities and captive manufactured home retail, leasing, and financing operations.

UFPI = UFP Industries – components for the manufactured home industry and others (housing, etc.).

• • • NOTE 1: Chart above of manufactured housing connected equities includes the Canadian stock, ECN, which purchased Triad Financial Services, a manufactured home industry finance lender.
    • NOTE 2: Drew changed its name and trading symbol at the end of 2016 to Lippert (LCII).
    • NOTE 3: Deer Valley was largely taken private, say company insiders in a message to MHProNews on 12.15.2020, but there are still some outstanding shares of the stock from the days when it was a publicly traded firm.  Thus, there is still periodic activity on DVLY.
    • Note 4: some recent or related reports to the REITs, stocks, and other equities named above follow in the reports linked below.
    • Note 5: Gifts of Sight and Insights, What’s in Store for 2024? Including 2023 Year End Reflections, manufactured homes, manufactured housing, mobile homes, MHVille, USA Snapshots, Manufactured housing industry year in review 2023.

 

2023 …Berkshire Hathaway is the parent company to Clayton Homes, 21^st Mortgage, Vanderbilt Mortgage and other factory-built housing industry suppliers.
· LCI Industries, Patrick, UFPI, and LP each are suppliers to the manufactured housing industry, among others.
· AMG, CG, and TAVFX have investments in manufactured housing related businesses. For insights from third-parties and clients about our publisher, click here.

 

2022 was a tough year for many stocks. Unfortunately, that pattern held true for manufactured home industry (MHVille) connected stocks too. See the facts, linked above.

====================================

Disclosure. MHProNews holds no positions in the stocks in this report.

· For expert manufactured housing business development or other manufactured housing professional services, click here.
· To sign up in seconds for our industry leading emailed headline news updates, click here.

• Note 1: MHVille means manufactured housing industry, MHVille also means artificially smaller manufactured housing (MH) industry,
• Note 2: Manufactured housing, building, factories, retail, dealers, manufactured home, communities, passive mobile home park investing, suppliers, brokers, finance, financial services, macro-markets, manufactured housing stocks, Manufactured Home Communities Real Estate Investment Trusts, MHC REITs.
• Note 3:
  

  APO, Apollo Global Management, BAM, Brookfield Asset Management, BLK, BlackRock, BRK-A, Berkshire Hathaway, BX, Blackstone, CDPYF, Canadian Apartment Properties Real Estate Investment Trust, CIGI, Colliers International Group Inc, CG, The Carlyle Group, CSGP, CoStar Group, CVCO, Cavco Industries, ECNCF, ECN Capital Group, ELS, Equity LifeStyle Properties, FGF, FG Financial Group, FG Communities,  KEY, KeyCorp, KMMPF, Killam Apartment REITs, LCII, LCI Industries, LEGH, Legacy Housing, LPX, Louisiana Pacific Corporation, MHC-UN.TO, Flagship Communities Real Estate Investment Trust (REIT), MHPC, Manufactured Housing Properties, MMI, Marcus and Millichap, NOBH, Nobility Homes, PATK, Patrick Industries, SKY, Skyline Champion, SUI, Sun Communities, UMH, UMH Properties, UFPI, UFP Industries.

That’s a wrap on this installment of “News Through the Lens of Manufactured Homes and Factory-Built Housing” © where “We Provide, You Decide.” © (Affordable housing, manufactured homes, stock, investing, data, metrics, reports, fact-checks, analysis, and commentary. Third-party images or content are provided under fair use guidelines for media.) (See Related Reports linked herein. Text/image boxes often are hot-linked to other reports that can be access by clicking on them.)

By L.A. “Tony” Kovach – for MHProNews.
Tony earned a journalism scholarship along with numerous awards in history. There have been several awards, honors and numerous public recognitions for his achievements in manufactured housing. For example, he earned the prestigious Lottinville Award in history from the University of Oklahoma, where he studied history and business management. Kovach is a managing member and co-founder of LifeStyle Factory Homes, LLC, the parent company to MHLivingNews.com and MHProNews. MHProNews is ranked as the runaway most read trade media in modern manufactured housing history. Manufactured Home Pro News (MHProNews) is the documented #1 largest and most read source for manufactured housing industry News Tips and Views Pros Can Use, Per Webalizer 2.23. MHProNews gets millions of visits a year and has significantly more pageviews per visit than CNN or Fox per SimilarWeb’s stats for those two sites (but those sites get more much more total traffic). Statistics Data Infographics Research Facts Evidence and manufactured housing industry expert analysis make us the runaway most read in MHVille trade media. This article reflects the LLC’s and/or the writer’s editorial views and may or may not reflect the views of sponsors or supporters.