[Federal Register Volume 75, Number 24 (Friday, February 5, 2010)]
[Rules and Regulations]
[Pages 5888-5890]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-2571]


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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT

24 CFR Parts 3280 and 3282

[Docket No. FR-5343-IN-01]
RIN 2502-AI77


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.

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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

[[Page 5889]]

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:

[[Page 5890]]

    (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.
[FR Doc. 2010-2571 Filed 2-4-10; 8:45 am]
BILLING CODE 4210-67-P