2010-2571. Federal Manufactured Home Construction and Safety Standards and Other Orders: HUD Statements That Are Subject to Consensus Committee Processes

AGENCY:

Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.

ACTION:

Interpretive rule.

SUMMARY:

The National Manufactured Housing Construction and Safety Standards Act of 1974 provides that certain classes of statements by HUD relating to manufactured housing requirements are subject to proposal, review, and comment processes involving a consensus committee. The consensus committee includes representatives of manufactured housing producers and users, as well as general interest and public officials. This rule interprets the statutory requirement to clarify the types of statements that are subject to the proposal, review, and comment processes.

DATES:

Effective Date: February 5, 2010.

FOR FURTHER INFORMATION CONTACT:

William W. Matchneer III, Associate Deputy Assistant Secretary for Regulatory Affairs and Manufactured Housing, Office of Manufactured Housing Programs, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 9164, Washington, DC 20410; telephone number 202-708-6401 (this is not a toll-free number). Persons with hearing or speech impairments may access this number via TTY by calling the toll-free Federal Information Relay Service at 1-800-877-8339.

SUPPLEMENTARY INFORMATION:

I. Background

The National Manufactured Housing Construction and Safety Standards Act of 1974 (42 U.S.C. 5401-5426) (“the Act”), as amended by the Manufactured Housing Improvement Act of 2000 (Title VI, Pub. L. 106-659), provides for the establishment and revision of Federal construction and safety standards for manufactured housing, as well as for procedural and enforcement regulations and interpretive bulletins related to implementation of these standards.

Section 604(a) of the Act provides, among other things, the process for the development, proposal, and issuance of revisions of Federal construction and safety standards, which govern the construction, design, and performance of a manufactured home. Section 604(a) establishes a consensus committee, which is comprised of representatives of manufactured housing producers and users, as well as general interest and public officials. Section 604(a)(3)(A) provides that the consensus committee shall:

(i) Provide periodic recommendations to the Secretary to adopt, revise, and interpret the Federal manufactured housing construction and safety standards in accordance with this subsection;

(ii) Provide periodic recommendations to the Secretary to adopt, revise, and interpret the procedural and enforcement regulations, including regulations specifying the permissible scope and conduct of monitoring in accordance with subsection (b) of this section;

(iii) Be organized and carry out its business in a manner that guarantees a fair opportunity for the expression and consideration of various positions and for public participation; and

(iv) Be deemed to be an advisory committee not composed of Federal employees. HUD has by regulation expanded the role of the consensus committee beyond that required under the Act. Although the Act provided that the consensus committee was to develop the original proposed model installation standards for manufactured housing, HUD has provided in 24 CFR 3285.1(c) that whenever HUD proposes to revise the model installation standards, it will also seek input and comment from the consensus committee. Similarly, HUD has provided in 24 CFR 3288.305 that it will seek input from the consensus committee whenever it proposes to revise the manufactured housing dispute resolution regulations.

In accordance with section 604(a) of the Act, the consensus committee may submit to HUD proposals to revise the Federal construction and safety standards, and HUD may either publish recommended standards for notice and public comment, or publish a standard along with its reasons for rejecting the standard. Upon consideration of any public comments, the consensus committee must provide HUD with any proposed revised standards, which HUD must in turn publish with either a description of the circumstances under which the proposed revised standard could become effective or, alternatively, HUD's reasons for rejecting the proposed revised standard. HUD must then adopt, modify, or reject any proposed standards through procedures and within the time frames specified in subsection 604(a).

Section 604(b) of the Act provides, among other things, the process for issuance of “other orders,” which consist of procedural and enforcement regulations and interpretive bulletins. Interpretive bulletins clarify the meaning of Federal manufactured home construction and safety standards, procedural regulations, and enforcement regulations. Before HUD issues a procedural regulation, enforcement regulation, or interpretive bulletin, it must submit its proposed regulation or interpretive bulletin to the consensus committee for review and comment. HUD may accept or reject any consensus committee comments, but upon doing so, it must publish for public notice and comment the proposed regulation or interpretive bulletin, along with the consensus committee's comments and HUD's responses to the consensus committee's comments. The consensus committee may also submit its own proposed procedural regulations, enforcement regulations, and interpretive bulletins to HUD. Upon receiving such a proposal from the consensus committee, HUD must either approve the proposal and publish it for public notice and comment, or reject the proposal and publish it along with its reasons for the rejection and any recommended modifications.

Section 604(b)(6) of the Act is entitled “Changes” and reads in its entirety as follows:

Any statement of policies, practices, or procedures relating to construction and safety standards, regulations, inspections, monitoring, or other enforcement activities that constitutes a statement of general or particular applicability to implement, interpret, or prescribe law or policy by the Secretary is subject to [section 604(a)] or this [section 604(b)]. Any change adopted in violation of [section 604(a)] or this [section 604(b)] is void.

Some questions have arisen within the consensus committee over what statements by HUD fall within the scope of section 604(b)(6). For example, some have asserted that the consensus committee has broad jurisdiction and authority over all aspects of HUD's manufactured housing program, such that HUD's internal budgets, contract decisions, and determinations whether to take enforcement action must be made or approved in advance by the consensus committee. HUD is concerned that such assertions may lead to confusion among members of the public, which is routinely invited to attend consensus committee meetings, with regard to the consensus committee's role. Accordingly, HUD is issuing this interpretive rule to clarify the scope of section 604(b)(6)'s coverage.

II. This Interpretive Rule

This rule interprets the scope of section 604(b)(6) to clarify the types of statements by HUD to which the section applies. HUD notes that in specifying which statements “relating to construction and safety standards, regulations, inspections, monitoring, or other enforcement activities” are subject to section 604(a) or (b), section 604(b)(6) uses language that is nearly identical to that found in the Administrative Procedure Act's (5 U.S.C. 551 et seq.) (the APA) definition of a “rule.” The APA definition states, in pertinent part:

“Rule” means the whole or a part of an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or describing the organization, procedure, or practice requirements of an agency.” (5 U.S.C. 551(4))

Over the 63 years since enactment of the APA, courts have developed extensive case law interpreting the APA's definition of a rule. (See, e.g., Jeffery S. Lubbers, A Guide to Federal Agency Rulemaking, 4th ed., (2006), pp. 49-126.) HUD will not attempt to summarize this case law in this interpretive rule, but views section 604(b)(6) as demonstrating Congress's intent to incorporate the APA's definition of a rule as developed by the courts, except to the extent that section 604(b)(6) deviates substantively from the APA definition. HUD notes that the only substantive difference between the scope of section 604(b)(6) and the APA's definition of a rule is that section 604(b)(6) excludes from coverage statements describing agency organization. Although section 604(b)(6) does not repeat the APA definition's express provision that the statement be one “of future effect,” HUD does not interpret this difference as a substantive one, since virtually any statement that “implements, interprets, or prescribes law or policy” is necessarily a statement of future effect. Finally, the scope of section 604(b)(6) is limited by its own terms to statements relating to manufactured housing “construction and safety standards, regulations, inspections, monitoring, or other enforcement activities” that amount to a “change.” Statements relating to other matters, including interpretation of other matters covered by the Act, statements that merely summarize or repeat the substance of prior statements or practices, and statements that merely provide guidance, are beyond the scope of section 604(b)(6).

Accordingly, HUD interprets the scope of section 604(b)(6) to include only statements by HUD that:

(1) Relate to manufactured housing construction and safety standards, regulations, inspections, monitoring, or other enforcement activities;

(2) Meet the definition of a “rule” under the APA and applicable case law, except that statements describing agency organization are not included; and

(3) Constitute a change from prior HUD statements or practice on the same subject matter.

III. Findings and Certifications

Environmental Impact

This final rule does not direct, provide for assistance or loan and mortgage insurance for, or otherwise govern or regulate real property acquisition, disposition, leasing, rehabilitation, alteration, demolition, or new construction; or establish, revise, or provide for standards for construction or construction materials, manufactured housing, or occupancy. Accordingly, under 24 CFR 50.19(c)(1), this rule is categorically excluded from environmental review under the National Environmental Policy Act of 1969 (42 U.S.C. 4321).

List of Subjects

24 CFR Part 3280

• Fire prevention
• Housing standards

24 CFR Part 3282

• Administrative practice and procedure
• Consumer protection
• Intergovernmental relations
• Investigations
• Manufactured homes
• Reporting and recordkeeping requirements

Dated: January 27, 2010.

David H. Stevens,

Assistant Secretary for Housing—Federal Housing Commissioner.