Re: Notice of Removal of Obsolete and Superseded
Guidance Documents – Docket No. FR-6156-N-01
Dear Secretary Montgomery:
As you know, the Manufactured Housing Association for Regulatory Reform (MHARR) is a Washington, D.C.-based national trade association representing the views and interests of smaller and medium-sized independent producers of manufactured Housing regulated by the U.S. Department of Housing and Urban Development (HUD) pursuant to the National Manufactured Housing Construction and Safety Standards Act of 1974, as amended by the Manufactured Housing Improvement Act of 2000 (42 U.S.C. 5401, etseq.). MHARR member companies operate in all regions of the United States.
On April 5, 2019, HUD, pursuant to Executive Order (EO) 13777 (“Enforcing the Regulatory Reform Agenda,” issued February 24, 2017), published a “Notice of Removal of Obsolete and Superseded Guidance Documents” (Notice) in the Federal Register.Section 2(iv) of EO 13777, among other things, requires federal agencies to terminate, consistent with applicable law, “programs or activities that derive from or implement Executive Orders, guidance documents, policy memoranda, rule interpretations and similar documents, or relevant portions thereof, that have been rescinded or … terminated during the fiscal year.” In accordance with this directive, the April 5, 2019 Notice announces the removal of certain “obsolete and expired guidance documents from” HUD’s “main program websites.”With respect to manufactured housing and HUD’s Office of Manufactured Housing Programs (OMHP), the Notice, at “Appendix F,” lists 13 editions of the OMHP “The Facts” newsletter that, pursuant to EO 13777, are “no longer in effect.”
While MHARR commends Secretary Carson for ordering the removal of these unofficial, non-regulatory, pseudo-interpretive documents from the OMHP website, this action fails to address the status of multiple other OMHP pseudo-regulatory pronouncements and erstwhile “guidance” documents that should also be withdrawn and declared null, void and “no longer in effect” pursuant to both EO 13777 and U.S. Justice Department memoranda issued by the Attorney General on November 16, 2017 and January 25, 2018, stating that the Justice Department would not enforce “guidance” and similar-type documents that have not been published for Notice and Comment pursuant to the Administrative Procedure Act (APA).
MHARR specifically addressed this matter in its EO 13777 written comments filed on February 20, 2018and in a subsequent communication to Acting FHA Commissioner and General Deputy Assistant Secretary for FHA, Ms. Dana Wade, on April 25, 2018.In those documents, MHARR specifically called for the express and explicit repeal of multiple OMHP “guidance” documents that were either: (1) rendered obsolete and invalid by subsequent amendments to governing federal statutes – e.g., HUD’s January 23, 1997 and May 5, 1997 “guidance” documents regarding the scope of federal preemption under 42 U.S.C. 5403(d); (2) were plainly erroneous and inconsistent with governing law when issued – e.g., HUD’s February 5, 2010 “Interpretive Rule” regarding the role and authority of the Manufactured Housing Consensus Committee (MHCC); or (3) were issued without either MHCC review as required by 42 U.S.C. 5403, or notice and comment as required by both that section and the APA.
To the extent that HUD, thus far, has yet to take action with respect to the repeal and invalidation of those documents in accordance with EO 13777, and insofar as each of those documents is fatallydefective, either procedurally, in violation of 42 U.S.C. 5403 or the APA, or otherwise in conflict with and in violation of applicable statutory law, as previously explained in detail by MHARR in its attached comments, MHARR reiterates its call for HUD to withdraw and invalidate those “guidance” documents in accordance with EO 13777. The repeal of these obsolete, baseless and invalid so-called “guidance” documents would do far more than the removal of a few newsletters from the OMHP website, to help reduce and eliminate unnecessary and baseless regulatory compliance costs, which disproportionately harm smaller industry businesses such as those represented by MHARR.
Thank you again for your consideration of these comments.
President and CEO
cc: Hon. Ben Carson
Hon. Mick Mulvaney
See, 84 Federal Register, No. 66, April 5, 2019 at p. 13695, etseq.
Id. at p. 13696, col. 2.
Id., col.3. Seealso, Id. at 13709.
See, Attachment 1, hereto, at pp. 20-30.
See, Attachment 2, hereto.
See, Attachment 1, hereto at p. 30 and OMHP documents referenced therein.