[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.__W[email protected]. 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