PART 5 -- AC PROCESS – THE AFFIRMATIVE ACTION ESCAPE

As noted earlier, the Secretary alleges in his AC regulation that monitoring/study activity (affirmative action) takes place after the sale of such noncompliant or statutorily illegal manufactured home to a purchaser.

Such activity does not occur (emphasis added), and he admits that such activity is not occurring, hence, “wherein no affirmative action is needed to protect the public interest…”

The Secretary’s AC process is predicated upon “no affirmative action is needed to protect the public interest,” yet the Secretary’s staff nonetheless during the approval process parenthetically conjures up and formulates conditions (inspection and study/monitoring), which appear on the surface to be nothing but “affirmative action” to protect the public interest [1].

The Secretary states that, “no affirmative action is needed to protect the public interest.” Then he strongly implies that he is taking “affirmative action” by monitoring these nonconforming manufactured homes to determine if such are providing, “the levels of safety, quality, and durability which would have been provided had the homes been built in compliance with the Standards.” He further implies that if in his judgment that such are not, he will take further “affirmative action” by requiring that the manufacturer bring these nonconforming AC manufactured homes into compliance with the MHCSS.

The Secretary’s own contrived regulation precludes him from monitoring these nonconforming manufactured homes, and from requiring the manufacturer to bring this or that nonconforming manufactured home into compliance with the MHCSS. As stated, his approval was predicated upon “no affirmative action” being “needed to protect the public interest.”

While he may write many “affirmative action” conditions for each AC letter he approves, he never intends to assure completion of these activities, which are essential for his AC process to retain its legitimacy as a research and development process for new techniques and designs.

Even if it was argued that the MHI Act of 2000 has legitimized this process, it remains predicated upon “no affirmative action is needed to protect the public interest”

It is important to also understand that while the AC letter is allegedly issued by the Secretary because the manufacturer’s product WILL NOT conform with all applicable MHCSS, the manufacturer, and with the Secretary’s complicity, nonetheless issues a false “certification that such manufactured home conforms to all applicable Federal construction and safety standards” (42 USCA §5415) [2]. This constitutes a separate violation of the MHCSS Act and clearly violates State and Federal deceptive trade practices statutes, in so much as such is a knowing and willful misrepresentation of a product that admittedly does not conform “to all applicable Federal construction and safety standards.”

This should bring into focus why the Secretary takes no action against those whom fail to deliver the notice, which the Secretary pretends is required to be given to the purchaser. To take any enforcement action against anyone for failing to deliver a notice of nonconformance with the MHCSS would be contrary or call into question the validity of the certification he permits the manufacturer to issue. As will be clear later, and as evidenced by the above, IT IS NOT a violation of the Secretary’s regulations for a manufacturer to:

Take note in 24 CFR 3282.14(d) above, where it is said; “the Secretary may require a manufacturer to bring those homes into compliance with the standards.”

The Secretary contrives “noncompliance” to mean that a manufactured home, even if it does not comply with even one single MHCSS, that it <DOES NOT contain even one single defect of any nature in the design or construction of such a manufactured home>.

With this understood, only the dealers or distributors have the right under the Secretary’s contrived regulations to have “noncompliance” (24 CFR 3282.256(a) & 3282.414) in a manufactured home corrected, but only if such substandard or noncompliant merchandise HAS NOT been delivered to a purchaser. Hence, the Secretary, in his AC regulation, is not talking about requiring the manufacturer to bring “those homes into compliance with the standards” that have already been delivered to purchasers. He is referring to “those homes” still in possession of the manufacturer, or any dealer or distributor agent thereof.

In fact, the MHCSS Act of 1974 overtly contradicts the Secretary’s definition for “noncompliance” many times, which three examples will be given here, and others will be apparent during this discussion.

There is simply NO statutory support whatsoever for the Secretary’s contrived notion that a manufactured home can “fail to comply” “with any … Federal construction or safety standard,” and for it, or some part thereof, not to be defective.

The Secretary’s capricious definition for “noncompliance” denies significant protection to purchasers of manufactured homes, which would otherwise be available even under his contrived regulations (emphasis added), in the absence of such a capricious notion.

The Secretary expresses that, “The issuance of a letter under paragraph (c) of this section will not affect any right that any purchaser may have [3] under the Act or other applicable law” (24 CFR 3282.14(a)). It will be apparent later that he and the manufacturers with malice and forethought, and to the highest extent possible, work hand-in-hand to obstruct any “rights afforded manufactured home purchasers under” (42 USCA §5423) the MHCSS Act or the “rights of the purchaser under any contract or applicable law” (42 USCA §5414(g)).

1
It is important to note that the Secretary’s incorporation of affirmative action requirements in each such AC letter, regardless of whether the Secretary intends to confirm such requirements through an inspection process, fundamentally violates the Secretary’s own regulation, in so much as he expresses no affirmative action is needed to protect the public interest.

2
Manufacturer’s label of compliance for AC construction homes – Verbatim -------- “The Manufacturer certifies that to the best of the manufacturer’s knowledge and belief that this manufactured home has been inspected in accordance with the requirements of the United States Department of Housing and Urban Development and is constructed in conformance with the Federal Manufactured Home Construction and Safety Standards in effect on the date of manufacture. See Data Plate.” (See next footnote for statement on data plate)

Manufacturer’s data plate for AC construction homes – Verbatim --------- “This manufactured home is designed to comply with the Federal Manufactured Home Construction and Safety Standards in force at the time of manufacture.”

3
Note: “The rights afforded manufactured home purchasers under this chapter may not be waived” (42 USCA §5421). The Secretary changed this to, “any right that any purchaser may have under the Act…” The difference between the two should be clear – Maybe, maybe not.



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