PART 10 -- THE EXERCISE OF DUE CARE - NOT

As discussed, 42 USCA §5409(b)(2) provides for the waiver of penalties, but not the guilt. The Secretary also excluded another vitally important part of this subsection from his regulations, and this was “in the exercise of due care”. The “exercise of due care” establishes that someone owes a duty towards ensuring something, which in this case the manufacturer owes a duty for ensuring that their product complies with all applicable MHCSS, when the construction of their product is completed at the home site or at the completion of the sale to the purchaser. The “exercise of due care” only appears two other times in the MHCSS Act. One of these times is in 42 USCA §5409(a)(4), which states:

• “That no person shall – (4) fail to issue a certification required by section 5415 of this title, or issue a certification to the effect that a manufactured home conforms to all applicable Federal manufactured home construction and safety standards, if such person in the exercise of due care has reason to know that such certification is false or misleading in a material respect”

No person issues the certification required by 42 USCA §5415 other than the manufacturer, as such “manufacturer” is defined in 42 USCA §5402(5). 42 USCA §5415 establishes the manufacturer’s requirement that they certify compliance with all applicable MHCSS, unless in the exercise of due care the manufacturer “has reason to know that such certification is false or misleading in a material respect.”

As discussed, the other appearance of this phrase is in 42 USCA §5409(a)(6), which states that:

• “No person shall - (6) issue a certification pursuant to subsection (h) of section 5403 of this title, if such person in the exercise of due care has reason to know that such certification is false or misleading in a material respect.”

No person issues the certification required by 42 USCA §5403(h) other than the manufacturer, as such “manufacturer” is defined in 42 USCA §5402(5). 42 USCA §5403(h) is the certification issued by the manufacturer proclaiming their intent to design and construct a structure to a building code other than the MHCSS. Hence, such is a certification to exclude a particular product from the coverage of the MHCSS Act, unless in the exercise of due care the manufacturer “has reason to know that such certification is false or misleading in a material respect.”

The secretary uses the phrase “in the exercise of due care” once in the whole of his regulations. This one appearance is related exclusively to the manufacturer’s certification that a particular structure will be excluded from the coverage of the MHCSS (24 CFR 3280.12) (emphasis added).

Hence, the manufacturers only have to “exercise due care” when they are certifying that THEY ARE NOT designing and constructing a manufactured/mobile home (emphasis added) (24 CFR 3280.12(f)(2)). For all other certifications required by the Secretary, the manufacturers do not have to exercise due care when they issue a certification, nor does he express or imply that is violation for the manufacturer to issue a certification that is false or misleading respect (emphasis added).

It simply is not an express violation of his regulations for a manufacturer to issue “a certification… if such person in the exercise of due care has reason to know that such certification is false or misleading in a material respect” (42 USCA §5409(a)(4)), with the one exception noted. The Secretary does not provide for, and otherwise blocks any investigations or inspections by any State and Local authorities, which would be essential for discovering a manufacturer’s violation of 42 USCA §5409(a)(4) [1] [2]. Moreover, while the MHCSS Act is specific about conducting whatever and however many post factory inspections at any location, as are necessary to enforce the MHCSS, either by the Federal government or contractors thereof [3], the Secretary significantly impedes the post factory inspections by government by severely limiting such inspections under his “exclusive system of enforcement” to transit damage and label tampering.

The Secretary substitutes “in the exercise of due care” with, “to the best of the manufacturer's knowledge and belief” (24 CFR 3282.205(c)), and then he sole sources “knowledge” to the manufacturer’s inspections (24 CFR 3282.205(d)). Hence, the manufacturer’s “knowledge” under the Secretary’s regulations is a product of his or her inspections and nothing else. As noted earlier “belief” is an ambiguous term.

The notion of founding “belief” upon such inspections does not sound significant by itself; however, this is wholly dependent upon the person who certifies such compliance (emphasis added) actually conducting all such inspections. The reality is that such person (manufacturer) in the vast majority of cases, if not in all cases, relies on the reports of others whom actually conduct such inspections, and herein lies where the Secretary’s exclusion of “has reason to know in the exercise of due care” becomes significant.

The only persons under the Secretary’s contrived regulations that are not accountable for ensuring the accuracy or validity of such inspection reports are the manufacturers, whom are not required by the Secretary to base their certification of compliance upon anything other than such reports.

• Ignorance becomes exoneration in the absence of due care
• The flip side of due care is negligence

All parties involved in the manufacture and sale of manufactured homes are merchants, with a [duty and obligation to know if their product meets merchantability criteria], as expressed by the manufacturer’s label of certification (Emphasis added).

The Secretary, on behalf of the manufacturers, simply shuttled their liability for the accuracy and truthfulness of such inspection reports onto others. By other exclusions, the manufacturer’s contract employee inspectors, onto whom the Secretary shuttled such liability, are as well largely unaccountable for the truthfulness and accuracy of such inspection reports.

The Secretary also allows such Private Inspection organizations to disclaim all liability or responsibility for the accuracy of the inspections they conduct [4].

This would not be significant had the Secretary also implement and then enforced the significant deterrent provided in 42 USCA §5420 against unlawful behavior, which holds that such private inspectors are civilly and/or criminally liable for “knowingly and willfully fail[ing] to report a violation of any construction or safety standard established under section 5403 of this title” (42 USCA §5420) [5]. This would render such disclaimers largely meaningless, and again, fear of prosecution for unlawful behavior is a powerful deterrent.