To give his usurped prosecutorial powers the appearance of legitimacy, the Secretary contrived by exclusion. He established 24 CFR 3282.10, titled Civil and Criminal penalties – sounds accurate. He follows thereunder with:

First, in the Secretary’s contrived version there is no mention that §5410 has any objective towards the enforcement of 42 USCA §5409(a)(1 – 6) …although, it may be argued that 42 USCA §5409(a)(1 – 4) are implied elsewhere in his regulations, although he never once references this section at all. However, violation of his regulations (42 USCA §5409(a)(5)), as expressed in 42 USCA §5410, was intended to be in addition to any of the other enumerated violations prescribed by Congress [1].

Overlooking that there is little in his regulations that resembles §5409(a)(1), (3), & (4), his alleged regulatory incorporation of §5409, and then his preemption of §5409 (24 CFR 3282.11(c)), is just one of the means he uses to legitimize his contrived notion that his regulations “establish the exclusive system for enforcement of the Federal standards” (24 CFR 3282.11(c)).

Under his regulations, only he has the authority to direct corrective actions, precluding the SAAs from taking any such action outside of the system he has contrived, even though as expressly stated in the MHCSS Act, fully approved States are authorized to direct such corrective actions independent of the Secretary’s opinion or regulations (42 USCA §5422(b)(5)) [2] [3] [4]. If he is not happy with the State’s enforcement of the MHCSS Act, Congress provides the only means by which he can address his unhappiness (42 USCA §5422(f)). The State Courts, just as the Federal Courts, if such State were fully approved under 42 USCA §5422 of the MHCSS Act, would have the authority to impose “the civil and criminal penalties prescribed under §5410” for any violation of the MHCSS [5], without regard for the Secretary’s contrived “exclusive system of enforcement” (42 USCA §5422(b)(4)).

In addition, the Secretary, while stating that his penalty is applicable to each such violation or series of violations, he never once states – with one exception – that a manufacturer can violate any part of his regulations. Everything rests on capricious implication under his regulations, with the one exception that follows.

This one exception lies in 24 CFR 3282.12, excluded structures – modular homes; hence, such product will not be designed and constructed under the authority of the MHCSS Act. In this one instant he states that he; “may seek civil and criminal penalties provided for in section 611 of the Act, 42 U.S.C. 5410, if the party in question in the exercise of due care has reason to know that such certification is false or misleading as to any material fact.” It is important to note a couple of things about the above. First, no person other than the manufacturer makes this certification. In addition, “he may seek the civil and criminal penalties,” expresses that only the Secretary has the discretionary authority to seek such penalties. Lastly, he substituted “An individual or a director, officer, or agent of a corporation,” with “the party in question,” which excludes no one. Whereas under the MHCSS Act, §5409 is largely applicable only to the manufacturer, and not applicable to anyone that cannot be defined under the MHCSS Act as a manufacturer or an agent/dealer thereof.

Before continuing, it is also noteworthy to mention that in regard to the certification issued under 42 USCA §5403(h) (excluded structures), instead of referencing his contrived penalties section at 24 CFR §3282.10, in connection with this particular violation, the Secretary cites by reference only (emphasis added) [6], the penalties prescribed in 42 USCA §5410 of the MHCSS Act. This proves regulatory implementation by statutory reference only is a method he recognizes as legally acceptable. This strengthens the argument that he knowingly and willfully excluded the criminal penalties from 24 CFR 3282.10, to raise a curtain of concealment over the manufacturers potential criminal liability under 42 USCA §5410, should they be found to have engaged in conduct, which threatened the health or safety of any purchaser of their products. Another point of interest is, as implemented, this section is effectively isolated from his exclusive system of enforcement, and if not for one thing to be mentioned shortly, it could be argued that, the Attorney General could prosecute any violation of this one section.

What encompasses a series of violations is also left without explanation under the Secretary’s regulations. Section 5410 expresses that:

Moreover, consistent with his notion that MHCSS Act gives him executive, legislative, and judicial powers (absolute power), he claims that only he can prescribe the penalty he has contrived under his “exclusive system of enforcement”, which excludes any criminal penalty for “knowingly and willfully” engaging in conduct, “which threatens the health or safety of any purchaser”.

The Secretary does not expressly state that the criminal penalties in 42 USCA §5410 are not an option. However, there is NO information whatsoever in his “exclusive system of enforcement” that explains what action or behavior would give rise to the imposition of criminal penalties for any violation of the Secretary’s “exclusive system of enforcement.”

Since the Secretary alleges that no laws (including the MHCSS Act) or regulations outside of his “exclusive system of enforcement” are applicable to the enforcement of the MHCSS, he has effectively rendered meaningless the significant deterrent that such criminal penalties would have on those they would otherwise apply. Again, it would take a vivid imagination to believe that he simply overlooked the criminal penalties for violating the MHCSS when he promulgated his regulation, less such criminal penalties.

While Congress states that any person who knowingly and willfully violates 42 USCA §5409 SHALL (emphasis added) be liable to the United States for civil penalty as prescribed in 42 USCA §5410, the Secretary states that only the violation of HIS “exclusive system of enforcement” “MAY (emphasis added) subject the party in question to the civil and criminal penalties provided for in section 611 of the Act, 42 U.S.C. 5410”.

With just one largely inconspicuous auxiliary verb change, “shall” to “may”, a seemingly inconsequential switch from any violation of 42 USCA §5409 of the MHCSS Act, to any violation of his “exclusive system”, and he gave himself that which he has no statutory authority to possess – prosecutorial discretion!

The exclusion of criminal behavior and the penalties prescribed therefore, from his regulatory scheme or scam, makes his handling of prosecutorial matters seem consistent with established or accepted practices.

He accomplishes a few things by excluding the criminal penalties from his implementing regulation for 42 USCA §5410, and excluding 42 USCA §5420 all together, one of which has already been discussed.

Moreover, the information contained in such investigations and determinations under such proceedings would reside outside of his jurisdiction, and thereby, he would not have the power to impair or block the dissemination of information that would reveal his failure to enforce the MHCSS, or his manufacturers’ complete disregard for federal law. While it is true that a lawsuit could be filed to force the agency to disgorge much of this information, those whom would have an interest in such information clearly lack the resources to prosecute such a case against the United States, effectively making his policy of secrecy absolute. Moreover, the Secretary’s policies provide that the vast majority of regulatory records are not required to be transmitted from the private to the public sector, leaving the manufacturers and those employed by the manufacturer, the means of deeming absolutely everything a trade secret or confidential information (whether government or private inspection records). This significantly elevates the complexity and cost of disgorging such information from HUD and/or from such private entities.

The Secretary rejected all meaningful deterrents mandated by Congress that would make a manufacturer, or any agent thereof, think twice about engaging in such unlawful conduct. Simply stated, the Secretary effectively decriminalized the MHCSS Act by promulgating his regulations less such criminal penalties, and by making it costly to obtain any information, which indicates nonconformance with the MHCSS from seeing the light of day. The exception to this is 42 USCA §5409(a)(6) (excluded structures), which is meaningless since there is no requirement there under §5403(h), as there is under 42 USCA §5413 (for any indication of noncompliance with the MHCSS), for the Secretary to report any such violations to anyone whatsoever. Given the Secretary’s track record of withholding any information from the Attorney General, which indicates nonconformance with the MHCSS, it is highly unlikely in the absence of such a mandate by Congress, that he would volunteer any such information to the Attorney General related to this one section.

Under the MHCSS Act, the U.S. Attorney or Attorney General may reach an agreement with the defendant, taking into account 42 USCA §5409(b)(2) and decide not to seek the punishments prescribed in 42 USCA §5410, or any portion thereof. However, such agreement cannot remove the guilt; otherwise, there is nothing to give rise to the penalties under 42 USCA §5410, and therefore nothing to waive. The defendant must formally admit to his or her violation of 42 USCA §5409(a)(1) before the penalties prescribed in 42 USCA §5410 for any violation of 42 USCA §5409(a)(1) can be reduced or excused, given the conditions prescribed in 42 USCA §5409(b)(2) – the logic here is inescapable.

If such admission is refused, then the case advances under 42 USCA §5411, “Injunctive relief.”

It is important to note that the Secretary also did not implement 42 USCA §5411 of the MHCSS Act, by reference or otherwise, with the exception of the “importation” clause (42 USCA §5411(e)), which is for purpose of serving process or notice. The balance of 42 USCA §5411 excludes the Secretary from the proceedings initiated there under, which would be in conflict with his “exclusive system of enforcement,” where under he has given himself absolute power. Of even greater importance to the Secretary, 42 USCA §5411 provides that the manufacturer could be held criminally liable for violating an injunction or restraining order issued by the Courts thereunder (emphasis added). If implemented it would be the Federal Court [7] that issued the injunction, and therefore the court that would hold the manufacturer criminally liable for violating their injunction or restraining order. This would have been contrary to the Secretary’s overt objective of shielding the manufacturers from any consequences for any conduct prescribed by the MHCSS Act as unlawful, regardless of the tragic consequences of such conduct for the purchasers of their products.

As noted at the beginning of this section, the Secretary excluded 42 USCA §5410(b) from his regulations for a number of reasons. By excluding the entire content of 42 USCA §5410(b) he excluded “which threatens the health or safety of any purchaser.” This is the only reference that implicitly explains that 42 USCA §5409 is affronted to protect the purchasers of manufactured homes, as “purchaser” is defined in the MHCSS Act – hence, it is from that which Congress expresses their intent to protect the purchaser from that explains the purchaser’s primary right under the MHCSS Act. It is vitally important to the greater majority of his regulatory scam that he never implies or expresses that the purchaser has any right under the MHCSS Act to a manufactured home that complies with all applicable MHCSS.

1
The Secretary’s is only authorized to issue regulations under §5424 of the Act, under which Congress does not provide that the Secretary’s can preempt whatever State and Local laws, rules, ordinances, or regulations he believes stand as an obstacle to his contrived notion (cheaply constructed using low quality materials and unskilled labor) of affordable housing.

2
42 USCA §5422(c)(5) – “provides for the notification and correction procedures under section 5414 of this title”. Congress did not say notification and correction as set forth by the Secretary, but in accordance with the PROCEDURES under section 5414 of the MHCSS Act. The Secretary’s contrived notification and correction process clearly violates procedural due process as established in §5414 of the MHCSS Act.

3
42 USCA §5422(c)(3) – “provides for a right of entry and inspection of all factories, warehouses, or establishments in such State in which manufactured homes are manufactured and for the review of plans, in a manner which is IDENTICAL to that provided in section 5413 of this title.” Congress did not say entry and inspection identical to what the Secretary prescribed, but IDENTICAL to what Congress prescribed in section 5413 of the MHCSS Act.

4
42 USCA §5422(c)(4) – “provides for the imposition of the civil and criminal penalties under section 5410 of this title.” While the Secretary claims that only he can impose the penalties prescribed by Congress, Congress unambiguously states that an approved State has the power to impose the penalties prescribed in §5410.

5
For a State to obtain approval under 42 USCA §5422 for the enforcement of the MHCSS, a State would have to promulgate §5409 & §5410 as State Law if such State Constitution forbid the enforcement of Federal Law. Review of some States Laws with such Constitutional limitation reveals that §5410 is often adopted verbatim, however, a vastly weaker version of §5409 is contrived, which renders the adoption of §5410 largely meaningless. Then, the Secretary preempts the MHCSS Act and with this, a States’ right under §5422 to impose such penalties, so does it matter? It would only be relevant in States where it was decided to enforce the Law as Congress intended instead of participating with the Secretary in breaking the law.

6
24 CFR 3282.12(f)(2) The Secretary may seek civil and criminal penalties provided for in section 611 of the Act, 42 U.S.C. 5410, if the party in question in the exercise of due care has reason to know that such certification is false or misleading as to any material fact.