[Federal Register Volume 62, Number 15 (Thursday, January 23, 1997)]
[Rules and Regulations]
[Pages 3456-3458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1646]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
24 CFR Part 3282
[Docket No. FR-4192-N-01]
Manufactured Housing Construction and Safety Standards: Notice of
Internal Guidance on Preemption
AGENCY: Office of the Assistant Secretary for Housing--Federal Housing
Commissioner, HUD.
ACTION: Notice of staff guidance.
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SUMMARY: The Office of Consumer and Regulatory Affairs in HUD has
developed guidelines to assist its staff in addressing preemption
issues concerning the National Manufactured Housing Construction and
Safety Standards Act of 1974. Because of the interest of outside
persons in the subject generally, HUD has decided to publish these
internal guidelines to assist regulated entities and consumers in
understanding the guidelines under which HUD will be operating. These
guidelines are not binding on either HUD or the public and are
published for informational purposes only.
FOR FURTHER INFORMATION CONTACT: David R. Williamson, Director, Office
of Consumer and Regulatory Affairs, Department of Housing and Urban
Development, Room 9156, 451 Seventh Street, SW., Washington, DC 20410-
0500; telephone (202) 708-6401, or on e-mail through Internet at
David__R.__Williamson@hud.gov. For hearing and speech-impaired persons,
the telephone number may be accessed via TTY (text telephone) by
calling the Federal Information Relay Service at 1-800-877-8339. (Other
than the ``800'' number, these telephone numbers are not toll-free.)
SUPPLEMENTARY INFORMATION: The staff guidelines reproduced in this
notice are internal guidance to assist the HUD office administering the
manufactured housing program in answering questions from the public as
to whether particular State or local laws or regulations are preempted
by the National Manufactured Housing Construction and Safety Standards
Act of 1974 (42 U.S.C. 5401-5426) (the Act). The guidelines are based
upon the Act and its implementing regulations in 24 CFR parts 3280,
3282, and 3800 and do not provide new interpretations of the Act
[[Page 3457]]
or create new HUD policy. The guidelines were developed to assist HUD
staff in giving uniform and timely responses to the public, including
consumers and affected industries, and State and local governments on
preemption issues.
HUD is publishing these guidelines because of the interest in
preemption questions that has been expressed by members of these
groups. HUD welcomes comments on these guidelines. Anyone wishing to
comment on these guidelines may do so by submitting written comments to
the attention of the person listed in the ``For Further Information
Contact'' section of this notice.
The internal guidelines that were prepared are as follows:
Guidelines for Analyzing Situations Involving Preemption Under the
Manufactured Home Construction and Safety Standards Act
I. Introduction
These guidelines have been prepared to assist in answering
questions from the public as to whether particular State or local laws
or regulations are preempted by the Act. These guidelines are based
upon the National Manufactured Housing Construction and Safety
Standards Act and its implementing regulations and are not intended to
add new interpretations to the Act or to create new HUD policy.
II. Statutory And Regulatory Background
The Act establishes a national set of construction standards for
manufactured housing. To ensure that State or local governments did not
enact or allow to continue conflicting construction standards, Congress
provided that no State or local government could establish a standard
dealing with an aspect of performance that is not identical to those
standards established under the Act (section 604(d)). However, where
there is no Federal standard, the States are free to act (section
623(a)).
HUD has interpreted these statutory provisions in its regulations
implementing the Act (24 CFR 3282.11). In accordance with the Act, the
regulation bars States from imposing a manufactured home standard
regarding construction and safety that covers the same aspects of
performance governed by a Federal standard. More generally, States may
not take any action that could interfere with the Federal
superintendence of the industry as established by the Act (24 CFR
3282.11).
The Act does not impose a duty on HUD to make any determinations as
to the applicability of the preemption provision, to investigate
preemption issues, or to render advisory opinions regarding preemption
questions. Further, a State is not specifically prohibited under
section 610 of the Act from implementing a provision that is preempted,
nor is there any requirement under the Act for the Secretary to enforce
the preemption provision. Generally, enforcement of preemption
requirements is left up to the Courts. Where an issue is unclear, it is
appropriate for the Courts to decide whether a State or local
requirement is preempted.
To the extent possible, HUD wishes to be responsive to inquiries of
consumers, the industry, and State or local governments on the
applicability of preemption. These responses should be considered as an
effort by HUD to advise the public of its construction of the statute
and the rules which it administers, and to give its opinion as to the
applicable law and the particular facts.
III. Guidelines for Specific Situations
Most inquiries can be responded to merely by discerning if there is
a specific Federal standard which addresses the same aspect of
performance as the State standard. If so, the Federal law preempts the
State law. In a significant number of cases, however, the determination
is not as clear and requires either an engineering or legal analysis,
or both. There are four general areas of inquiry which are frequently
raised:
A. Installation
There is no specific Federal standard that deals with the
installation of manufactured homes. As such, standards as to the
installation of manufactured homes can be regulated by local or State
governments and are not preempted under the Act.
It is possible, however, that a local installation rule may hinder
the implementation of Federal standards. For example, the
implementation of a local rule may conflict with a requirement of a
Federal construction standard for plumbing or water hookup. In such
cases, the local rule is preempted.
B. Zoning
Normally, zoning issues fall outside the scope of the preemption
provisions of sections 604 of the Act. There may be limited instances,
however, in which the Federal definition of ``manufactured home'' could
fall within the broad definitions applied to prefabricated or factory
built homes under the local zoning ordinance. Such homes are treated
differently depending on the building code under which they are
constructed.
Generally, the enforcement of a local ordinance regulating the
location of manufactured homes has not been subjected to the regulatory
authority of the Act because such enforcement rests on the locality's
right to determine proper land use. In addition, a locality is free to
adopt and enforce ordinances that regulate the appearance and
dimensions of homes so long as the criteria established by such
ordinances do not have the effect of excluding manufactured homes based
on the construction and safety standards to which they were built. Such
regulation of aesthetics protects property values, preserves the
character and integrity of communities and neighborhoods, and assures
architectural compatibility.
If a locality, however, is attempting to regulate, and even
exclude, certain manufactured homes through zoning enforcement that is
based solely on a construction and safety code different from that
prescribed by the Act, the locality lacks such authority. Thus, a
locality cannot accept structures meeting the Federal definition of
manufactured homes which comply with different standards, such as the
local or State Building Code, and exclude or restrict manufactured
homes that are aesthetically the same but only meet the Federal
standards. By excluding or restricting only manufactured homes built to
the Federal standards, and accepting manufactured homes built to other
codes, the locality is establishing standards different than the
Federal standards.
A locality is not in conflict with the preemptive provisions of the
Act if, without regard to construction standards, it treats all
structures that meet the Federal definition of Manufactured Homes the
same under local zoning laws.
C. State Enforcement
A number of questions have arisen as to when a State's enforcement
of manufactured housing standards are preempted by Federal law. HUD's
regulations at 24 CFR 3282.11 (c) and (d) set forth a clear standard as
to the appropriateness of State enforcement of its manufactured home
standards. The Federal regulations prohibit a State from establishing a
code enforcement system for manufactured homes which is outside, or
goes beyond, those enforcement procedures specifically set forth in the
Federal regulations. ``The test of whether a State rule or action is
[[Page 3458]]
valid or must give way is whether the State rule can be enforced, or
the action taken, without impairing the Federal superintendence of the
manufactured home industry as established by the Act'' (24 CFR
3282.11(d)). There are several specific situations:
1. A State, as a State Administrative Agency (SAA) under section
623 of the Act, can enforce the Federal standards. It may also enforce
State standards which are identical to the Federal standards. Such
actions would not be preempted. However, the State's system of
enforcing these standards must be identical to the enforcement
procedures in the Federal regulations. ``No State may establish * * *
procedures or requirements * * * which * * * require remedial actions
which are not required by the Act and the regulations'' (24 CFR
3282.11(c)).
2. A State may enforce its own consumer protection or warranty laws
as to defects in individual homes. As such, a State may require a
manufacturer to correct non-compliances and defects in response to
individual consumer complaints. Such acts would not be preempted by
Federal law (24 CFR 3282.11(d)).
3. Notwithstanding the above, however, there are limitations on a
State's actions to correct individual homes. These are situations in
which State action would interfere with Federal superintendence of the
manufactured home industry.
(a) Imminent safety hazards or serious defects. Where it appears
that there is an imminent safety hazard or a serious defect, the State
is required to refer the matter to HUD for enforcement (24 CFR
3282.405(b) and 3282.407(a)).
(b) Class of manufactured homes. Where it appears that the same
defect exists in a class of manufactured homes and the State is not the
State in which the homes were produced, then the State is required to
refer the matter to the SAA in the State in which the homes were
produced or to HUD (if there is no SAA in the State of production) for
enforcement. Further, if a class of defective homes is produced in more
than one state, HUD is responsible for the enforcement actions. If the
homes were all manufactured in the State, the State may take actions,
consistent with the Federal regulations, with regard to the
noncompliance and defects (24 CFR 3282.405(b) and 3282.407(a)(3)).
(c) Prior HUD enforcement. Where HUD has already taken action to
have a class of serious defects corrected, then the State is preempted
from taking corrective actions of its own pursuant to the Act (24 CFR
3282.404(e)).
D. Utility Companies
There have been a few utility companies which have attempted to
impose their own construction or safety standards on manufactured homes
as a requirement for connection to their services. The Act, by its
express terms, prohibits only ``State or political subdivisions of a
State'' from establishing standards that conflict with the Federal
standards (section 604(d)). Accordingly, if the utility company is
owned or controlled by a political subdivision, its standards are
preempted by the Federal standards. If the utility is privately owned,
its standards would not be preempted.
E. State Construction and Safety Standards
1. Aspects of performance. Additional questions arise in situations
in which the State or locality attempts to apply its own building or
safety code to the manufactured home. Under section 604 of the Act,
State law is preempted whenever there is a State performance standard
regarding construction and safety that is not identical to an
established Federal standard. On the other hand, section 623 of the Act
provides that Federal law does not preempt State construction or safety
standards for which a Federal standard had not been established. Thus,
for there to be Federal preemption, there must be a specific aspect of
a Federal performance standard which duplicates a local standard.
Federal preemption cannot be based upon a general purpose of the
Act, or the need for national uniformity in the manufactured housing
industry. The courts have applied this ``aspect of performance''
standard in analogous situations by focusing not on the purpose or
scope of the Act, but, rather, on the specific requirements of an
established Federal standard. If the Federal standard is encompassed or
impacted by the State requirement, the State law is preempted.
2. Superintendence. It is also possible that a State or local law
may be preempted even though the local rule does not meet the differing
aspect of performance standard. As stated above, 24 CFR 3282.11(d) sets
forth an additional standard of preemption. A State rule must give way
if it impairs the Federal superintendence of the manufactured home
industry as established by the Act.
Thus, for example, a local requirement that all homes be
constructed on site, while not covering any aspect of performance,
would be so fundamentally in conflict with the Federal standards as to
impair the Federal superintendence of the manufactured home program.
Such a requirement would be preempted under the HUD regulations.
The scope of this regulatory provision is limited by the language
``as established by the Act''. This language limits the Federal
superintendence of the industry, since section 604(d) of the Act limits
the preemption of standards to only those issues dealing with the same
aspects of performance.
Authority: 42 U.S.C. 3535(d) and 5401 et seq.
Dated: January 14, 1997.
Stephanie A. Smith,
General Deputy, Assistant Secretary for Housing-Federal Housing
Commissioner.
[FR Doc. 97-1646 Filed 1-22-97; 8:45 am]
BILLING CODE 4210-27-P
